"134 ecclesiastic tribunals, that in effect whenever the wife is adjudged entitled to live separate from her husband, by reason of breaches of matrimonial duty committed by him, a concurring adjudication must be pronounced that he support her while so living; the one adjudication being commensurate in extent with the other, and neither one existing without the other." In several states, by legislative enactment, an allowance for the separate maintenance of the wife, disconnected with proceedings for a decree of divorce, is authorized.135 "We, therefore, conceive that the chancellor, before the statute and since, in cases not embraced by it, which have strong moral claims, had and has jurisdiction to decree alimony, leaving the matrimonial claim untouched, and that those authorities which decide in favor of such jurisdiction ought to prevail."136 It is better, as the court says in the above case, to abandon the subterfuge to which courts have sometimes resorted in such cases "as a pretext for jurisdiction," and administer the appropriate relief without the "pretext."137 § 2699. On the ground of willful neglect, having the ability to provide. [TITLE] Form No. 620. The plaintiff complains, and alleges: I. [Allege marriage as in form No. 615.] II. [Allege residence as in form No. 615.] III. That the defendant for more than one year last past has willfully neglected to provide for plaintiff the common necessaries of life, having the ability so to do, and has compelled 134 Galland v. Galland, 38 Cal. 265, and cases there cited. 135 Id., 38 Cal. 265. 136 See Cal. Civil Code, § 136. The same proposition is maintained in Purcell v. Purcell, 4 Hen. & M. 507; Almond v. Almond, 4 Randolph, 662; 15 Am. Dec. 781; Logan v. Logan, 2 B. Mon. 142; Prather v. Prather, 4 Desaus. 33; Rhame v. Rhame, 1 McCord Ch. 197; 16 Am. Dec. 597; Glover v. Glover, 16 Ala. 446. 137 Galland v. Galland, 38 Cal. 265. Action for permanent maintenance of a wife by the husband, without a divorce, under section 137 of the Civil Code, can only be based upon the ground of desertion by the husband, and proof of willful desertion by him, or that, by reason of his cruelty or threats of bodily harm, she was forced to leave the family dwelling-place, is essential to support the action. Hardy v. Hardy, 97 Cal. 125; see Poole v. Wilbur, 95 id. 339. plaintiff to live upon the charity of friends, notwithstanding he is abundantly able to support her, and is worth, as this plaintiff is informed and believes, about the sum of .... dollars, and is in the constant receipt of wages sufficient for their joint support from his daily labor, to-wit, about .. The plaintiff complains, and alleges: I. [Allege marriage as in form No. 615.] II. [Allege residence as in form No. 615.] III. That the defendant for more than one year last past has failed to provide for the plaintiff the common necessaries of life because of his idleness, profligacy and dissipation. [DEMAND OF JUDGMENT. 1138 2701. Willful neglect definition of. Willful neglect is the neglect of the husband to provide for his wife the common necessaries of life, he having the ability to do so; or it is the failure to do so by reason of idleness, profligacy, or dissipation. 139 Willful neglect must continue for one year before it becomes a ground for divorce.140 The only limitation to this action is "an unreasonable lapse of time before the commencement of this action." "141 § 2702. Charge of failure to support. It must affirmatively appear in the complaint that the husband was the owner of property sufficient to provide for the necessaries of life, and neglected so to do, where the application is made on the ground If 138 If the failure to provide is attributable clearly to one of these causes, it is sufficient to allege that one, and omit the other. all are inserted, it must be in the conjunctive. 139 Cal. Civil Code, § 105. 140 Id., § 107. 141 Id., § 124. The support of his wife is a continuing obligation on the part of the husband, and his failure to meet it is a continuing cause for a divorce, unless there has been an unreasonable lapse of time before the action is commenced, and he is not released from this obligation by a judgment in his favor in an action for a divorce upon this ground. Wagner v. Wagner, 104 Cal. 293. of the willful neglect of the husband, for the statutory period, to provide the common necessaries of life, having the ability to provide the same. 142 The residence of the husband with the wife within the three years (now one year) is no answer to the application where it appears that they were not living together at the commencement of the suit.143 If common necessaries are provided by the earnings of either, there is no such willful neglect as is contemplated by the statute.144 The earnings of both husband and wife go into a common fund, and become common property, the disposition of which belongs to the husband, and when applied by him, or with his assent, for her support, and are sufficient for that purpose, there is no basis for a decree. 145 § 2703. Allegations of. A complaint which merely charges the defendant with willful neglect" does not state a cause of action, because, by the statute, there are two sets of facts which are included within the expression "willful neglect." First: A neglect on the part of the husband to provide the wife with the common necessaries of life, he having the ability to do so; and second: His failure to do so when he is unable, provided such inability has been caused by his idleness, profligacy, or dissipation.146 A complaint averring willful neglect, in that by reason of profligacy and dissipation the defendant has failed to provide, etc., will not support a finding that the defendant failed to provide, having the ability to do so.147 § 2704. On the ground of habitual drunkenness. [TITLE.] Form No. 622. The plaintiff complains, and alleges: I. [Allege marriage as in form No. 615.] II. [Allege residence as in form No. 615.] III. That the defendant, disregarding his duties as a husband towards the plaintiff, has been guilty of habitual intemperance for more than one year last past. [DEMAND OF JUDGMENT.] 142 Washburn v. Washburn, 9 Cal. 476. 143 Id. 144 Id. 145 Id. 146 Devoe v. Devoe, 51 Cal. 544. 147 Id.; see Wagner v. Wagner, 104 Cal. 293. § 2705. Habitual intemperance defined. Habitual intemperance is that degree of intemperance from the use of intoxicating drinks which disqualifies the person a great portion of the time from properly attending to business, or which would reasonably inflict a course of great mental anguish upon an innocent party.148 Before the adoption of this section it was said: If there be a habit of drinking to excess, to such a degree as to disqualify the party from attending to his business during the principal portion of the time usually devoted to business, it is habitual intemperance.149 One who has the habit of indulging in intoxicating liquors so firmly 'fixed that he becomes intoxicated as often as the temptation is presented by his being in the vicinity where liquors are sold, is an habitual drunkard within the meaning of the Michigan Divorce Law. 150 By the Kentucky Revised Statutes, 390, a decree of divorce in favor of a wife may be had for the following cause: "Confirmed habit of drunkenness on the part of the husband of not less than one year's duration, accompanied with a wasting of his estate, and without any suitable provision for his wife and children;" the words "wasting of his estate," where the husband has no property, apply to and embrace his health, time, and labor, all of which, for the purpose of supporting himself and family, are essentially his estate. 151 A single act of drunkenness and indecency of the wife is not such an indignity as will render the condition of the husband intolerable, within the meaning of the statute of Missouri." 152 Habitual drunkenness, a series of annoyances, and extraordinary conduct do not constitute legal cruelty, but in addition to these, the willful communication of a venereal disease to the wife is cruelty.153 An allegation that the defendant is "habitually intemperate," is sufficiently definite, if accompanied by an averment that the intemperance has continued for the statutory period. 154 148 Cal. Civil Code, § 106. 149 Mahone v. Mahone, 19 Cal. 626; 81 Am. Dec. 91; and see Wheeler v. Wheeler, 53 Iowa, 511; 36 Am. Rep. 240. 150 Magahay v. Magahay, 35 Mich. 210; see, also, to same effect, McBee v. McBee, 22 Oreg. 329; 29 Am. St. Rep. 613; Brown v. Brown, 38 Ark. 328. 151 McKay v. McKay, 18 B. Mon. 8. 152 Kempf v. Kempf, 34 Mo. 211. 153 Brown v. Brown, L. R., 1 P. & D. 46; Boardman v. Boardman, id. 237. 154 Burns v. Burns, 13 Fla. 369. An allegation that the defendant had been habitually intemperate to such a degree as to reasonably 2706. To annul a marriage on the ground of fraud. [TITLE.] Form No. 623. The plaintiff complains, and alleges: I and II. [Allege marriage and residence as in form No. 615.] III. That for the purpose of inducing the plaintiff to consent to the said marriage, the defendant falsely and fraudulently represented that she was chaste and virtuous, and was physically competent to marry the plaintiff, and concealed from the plaintiff her real physical condition. IV. That the defendant was not then and there chaste and virtuous, and was not at the time physically competent to marry the plaintiff, but was at the time of the said marriage in a state of pregnancy by some other man than the plaintiff. V. That the plaintiff was induced to consent to the said marriage by the said representations, which he believed at the time of his said marriage to be true, and that if the said representations had not been made to him, and said concealment had not been practiced, he would never have consented to the said marriage. VI. That immediately upon his discovery of the falsehood of said representations, to-wit, on the . . . . . . . . day of 18.., the plaintiff ceased to cohabit with the defendant, and has never since cohabited with her. Wherefore the plaintiff prays that said marriage may be annulled, and that he be forever released and discharged from any and all obligations and duties arising from said marriage, and for other proper relief. § 2707. Annulment of marriage — under the Code of California. A marriage may be annulled for any of the following causes existing at the time of the marriage: 1. That the party in whose behalf it is sought to have the marriage annulled was under the age of legal consent, and such marriage was contracted without the consent of his or her parents or guardian, or person having charge of him or her; unless after attaining the age of consent, such party for any time freely cohabited with the other as husband or wife; 2. That the former husband or wife of either party was living, and the marriage with such for inflict a course of great mental anguish upon the plaintiff is sufficient under the California statute. Forney v. Forney, 80 Cal. 528; and see Reading v. Reading, 96 id. 4. |
