Shackett v. Shackett

The opinion of the court was delivered by Barrett, J.

The plea demurred to is in the form of a technical plea in estoppel. It is claimed that it is* defective as such, because it does not aver that the adultery established by the record had not been condoned after that adjudication. Procedure in divorce cases in Vermont, has not been regarded as subject to and ruled by the law, and forms, and rules of pleading that prevail and rule in common law causes. It has been practiced and supposed that anything that would disentitle the applicant for divorce to have it granted, might be alleged and shown on the hearing, without regard to any particular foi’mality of allegation. Unless, in some effectual way, the substance of the intended defense should have seasonably been made known, to enable the other party to prepare against it, the courts have seen to it, by' proper orders, that such other party should not suffer undue prejudice or embarrassment.

We do not think it warrantable to dispose of the case upon the point made and urged under the demurrer.

The adultery committed in 1865-6, had not been condoned at the time of the adjudication in 1872. That adultery was effectual to preclude a divorce in that case. Is it effectual to preclude the petitioner from obtaining a divorce in this suit ? There is nothing cognizable under the demurrer from which the law would imply that the adjudicated adultery had been condoned or pardoned after said adjudication. If not condoned, it would, in any event, be effectual to bar a divorce for the cause of adultery committed by the libelee, .whether committed before or after that adjudication. Whether, if condoned, its effect, as matter of defence, would be thereby abated, is not needful for the court now to decide.

*197 The libel alleges three statutory causes for divorce — refusal to support — adultery — intolerable severity. Each is a distinct cause, not needing or deriving help .from any other. Each, by itself, would have to be maintained by the evidence, in order that it shoirld have any effect towards causing divorce to be granted. As already said, the established adultery of the wife precludes her from divorce for the cause of adultery.

As between husband and wife as immediate parties, the husband is no more under duty to her to maintain her, than she would be under duly to him to abide, and cohabit with, and serve him, if he was committing adultery.

. The ground mainly relied on and urged for the divorce is, that for the cause of intolerable severity, the adultery committed by her 'is not a defence. The husband might not lawfully beat or ill treat his adulterous wife in any way that is regarded by the law as cause for divorce, designated by “ intolerable severity.” If he should break the law in this respect, he would be duly, amenable thereto. But whether such adulterous wife may effectually invoke the courts to loose her from the' obligations and relations resulting from her matrimonial contract, where she has committed a criminal breach of the contract, depends on other principles, and involves different considerations. ■ Those principles and considerations have been educed from the books and cases, and are comprehensively, and with careful discriminations, stated and illustrated in 2 Bishop Mar. & Div. ss. 76, 78, 88 to 96.

Without copying or stating, it suffices to say, that upon principle and authority, adultery of the petitioner is a bar to her having a divorce for any of the causes set forth in the petition.

Judgment affirmed.