JUDICIAL SEPARATION.

FORMERLY UNKNOWN.

3321. Previously to 1847, the process now known as judicial separation was unknown; as,

3322. First Instituted.—Judicial separation, as at present administered, was first introduced upon the establishment of the Divorce Court (3569); hence,

DIVORCE COURT.

3323. All proceedings for judicial separation must be taken in connection with the "Court for Divorce and Matrimonial Causes," in London.

3324. By Special Acts.-The power and jurisdiction of the Court is determined and regulated by special Acts of Parliament.

SOLICITOR ESSENTIAL.

3325. The employment of a solicitor is an essential preliminary to proceedings in the Divorce Court.

3326. London or Provincial.-It may be, in the first instance, either a London or provincial solicitor.

GROUNDS FOR PROCEEDING.

BY EITHER PARTY.

3327. Judicial separation may be obtained at the instance of either husband or wife, on all or any of the following grounds :3328. Adultery (3342);

3329. Cruelty (3355);

3330. Desertion, without cause, for more than two years (3450); 3331. Attempted sodomy (3465).

3332. Incompatibility of Temper.-It is expressly laid down that proceedings for judicial separation cannot be sustained by proof of mere "incompatibility of temper ;" and

3333 Unhappy Differences.-An allegation of "unhappy differ

ences, however acute the suffering may be, or however strong the evidence of it, will not support proceedings for judicial separation.

COMMENCEMENT OF ACTION.

3334. By Petition.—All proceedings for judicial separation must be by petition (3474); and

3335. By the Aggrieved Party.-The petition must be by the party suffering from the alleged delinquency; for instance,

3336. Delinquent Husbands.-A husband's petition on account of his own cruelty, or other abuse of his wife, would be of no avail; and

3337. Delinquent Wives.-A wife's petition on the ground that she had deserted her husband for two years, or that she had otherwise abused him, would not avail.

OPTION OF THE PETITIONER.

3338. Either husband or wife, if suffering from any of the abuses referred to, is at liberty to proceed for a judicial separation, even though entitled, upon the facts, to a divorce (3567); but,

3339. Usually by Wives.-Petitions for judicial separation are almost invariably presented by wives (3785); so that,

3340. General Presumption.—It will be useful and save repetition to presume that all petitions of such nature are by wives; though, 3341. Husband Equally Entitled.—A husband can procure judicial separation for any of the causes (3327) for which a wife can obtain similar relief.

ADULTERY.

3342. Certain Plea.-Adultery, if proved, and there be no defence (3354), is certain to suffice for procuring judicial separation; and

EVIDENCE.

3343. No Proof Needed.-When there is no defence, it is not necessary to prove an act of adultery; though,

3344. The Court must be satisfied that a criminal attachment subsisted between the parties, and that opportunities occurred when the offence might have taken place.

3345. Ineffectual Charges.—Insulated and detached charges, as a rule, will not suffice;

3346. Incidental Evidence.-The whole of the circumstantial evidence available must be taken together; for,

3347. Proof of Bona Fide Belief.-Though the Court does not require absolute proof of adultery, it must be sworn that adultery is believed to have taken place.

3348. Paid Witnesses.-Witnesses who have avowedly come forward with evidence, upon a stipulation for a reward of their services as witnesses, are admissible by the Court; but,

3349. Severe Criticism.-The evidence of paid witnesses, though admissible, is open to more than ordinary criticism; notwithstanding,

3350. At its Worth.-Evidence procured from paid witnesses is weighed according to the circumstances, and taken for what it is apparently worth.

3351. Confession.-Confession of a delinquent, unsupported by other evidence, will, as a general rule, be accepted by the Court as proof of adultery, in support of a petition for judicial separation, but not for divorce (3585); though,

3352. By an Alleged Paramour.-Where the only evidence in support of a charge of adultery against a husband was the testimony of the alleged paramour, a woman of loose character, the Court held that the charge had not been proved with sufficient certainty, and dismissed the petition.

3353. No Compulsion.—The Court has no power to compel the alleged delinquent to attend and confront the evidence (3711).

IRRESISTIBLE DEFENCE.

3354. Counter Charge.-Adultery, judicially proved against the petitioner, will suffice to dismiss a petition either for judicial separation or divorce (3636).

CRUELTY.

FACT AND DEGREE.

3355. Cruelty is not only a question of facts but of degree; for, 3356. Insufficient.-There may be cruelty, but not enor to sustain a petition.

BODILY INJURY.

3357. The question is, whether the husband has so treated his wife, and so manifested his feelings towards her as to have inflicted bodily injury; or,

3358. Reasonabie Apprehension.-To have caused reasonable apprehension of bodily injury; or,

3359. Injured Health.-To have caused marked injury to health. 3360. Austerity of Temper.-Cruelty cannot be legally alleged upon proof of austerity of temper; or,

3361. Violent Language.-Violence of language (3381), if not threatening (3376), though excessive and incessant; or,

3362. Passion.-Passionate ebullitions of temper, however violent, if such conduct does not threaten bodily harm (3403).

3363. Difference of Rank.—The rank and previous mode of life of the petitioner will affect a plea of cruelty; for, it is held that,

3364. Privilege of Birth.-"A wife brought up as a gentlewoman would suffer in her health and constitution, nay, even her life might be endangered, by a mode of living which would be even comfortable to a woman in a different grade of life." On the other hand, it is held that,

WILFUL ILL-TREATMENT.

3365. There must be proof of wilful ill-treatment, and bodily injury resulting therefrom, or of a reasonable apprehension of such bodily injury.

VICIOUS ECCENTRICITIES.

3366. Sleeping Apart.—It has been decided that the husband taking to a separate bed is not pleadable as cruelty.

3367. Neglect and Indifference.—A husband treated his wife with neglect and indifference; and

3368. Ceasing Intercourse.-Ceased to have matrimonial intercourse with her; and

3369. Open Adultery at Home.-Carried on an adulterous intercourse with a servant in the same house where he and his wife were residing; and

3370. Not Cruelty.-It was held that, in the absence of any threats or acts of positive violence, his conduct did not amount to legal cruelty.

3371. Fictitious Execution.—A petition alleging cruelty was filed by a wife because her husband, in order to extort money from her, had put into their house a fictitious execution, a process which would appear to be a malignant invention of the most refined and deliberate cruelty; but,

3372. Case Dismissed.—The case was dismissed by Dr. Lushing ton; when he said,

3373. Not Illegal.-"The causing a fictitious execution to be

put into the wife's house, for the purpose of extorting money from her, is, no doubt, of great moral iniquity, and of gross and unjustifiable oppression; but I do not apprehend that I could found any judgment upon it, as a substantive act of legal cruelty."

ABUSE.

3374. Words of abuse and reproach are not legal cruelty; but, 3375. Words of Menace.—Words of menace, indicating an intention of doing bodily harm and affecting the security of life, are legal cruelty; for, it has been held that

THREATS SUFFICIENT.

3376. The Court will not wait till threats are carried into execution; but,

3377. Reasonable Apprehension.-Must interpose when words raise a reasonable apprehension of violence; or,

3378. Real Terror.-Excite such terror as makes life intolerable ; and

3379. Indirect Menaces.—If a menace of a wife by her husband raise a reasonable apprehension, it matters not whether it is made direct to the wife or to a third person; and

QUARRELS.

3380. Interposition Justified.-"There can be no doubt that words of menace, creating a reasonable apprehension of personal injury, will call for and justify the interposition of the Court;" but, 3381. No Bodily Violence.-A menace or words of violence by a husband towards his wife must imply an intention to commit bodily violence, before legal cruelty can be adduced, for Dr. Lushington has said, in a remarkable case, "Quarrels, and much improper language by the husband passed, but there was no conduct to excite in the wife any reasonable apprehension of danger to her person," and thereupon he declared cruelty not proved; again,

3382. Family Squabbles." Family squabbles, not accompanied by personal violence nor by threats of personal violence, will not call for such interference;" again,

3383. Hard Words."Hard words break no bones,' and it is only in cases of danger to the health, life, or person of the party that the Court interferes;" again,

3384. "For Better or for Worse."-"The Court has a solemn duty to perform, and it will not suffer family quarrels to be made sufficient evidence of cruelty between parties who have contracted to live together for better or for worse.'"