LIMITED PROVINCE OF JURIES.

3746. Facts Only. The province of a jury as to facts is strictly limited to decisions of fact; for,

3747. No Right of Discrimination. They have no power of determining the nature of facts and circumstances; hence,

3748. Strict Limitation.—All they are allowed to decide is whether the alleged facts ever occurred, and whether the alleged circumstances are true; and,

3749. Categorical Proceedings.—The province of juries in the Divorce Court is so jealously circumscribed that all questions are put to them categorically; for,

3750. Irrespective of Consequences.-The legal consequence of a fact proved, or circumstance admitted, rests exclusively with the Court.

RESULT.

3751. Notwithstanding the numerous defences that may be entered against a petition for divorce, and though every petition is liable to a severe ordeal of opposition, if the ordeal is successfully passed through it will result in

THE DECREE.

3752. Invariable Qualification. — Every decree of divorce is invariably, in the first instance, only qualified; therefore,

THE DECREE NISI.

3753. The first form in which a divorce is pronounced by the Court is uniformly that of a decree nisi; and

3754. Only Provisional.—A decree nisi is, in its very nature, only provisional, so that,

3755. Always Revocable.-A decree nisi is invariably subject to revocation.

FORM OF DECREE NISI.

3756. The following is a copy of a decree nisi:—

DOE v. DOE and ROE,

Before the Right Honourable Sir James Plaisted Wilde, Knight, Judge Ordinary of Her Majesty's Court for Divorce and Matrimonial Causes, sitting in open Court at Westminster.

The 1st day of December, 1858. A jury (3776) having been sworn to try the questions of fact arising out of the pleadings in this cause, and the Judge Ordinary, having in their presence

taken the oral evidence of the witnesses produced on behalf of the petitioner in support of the petition filed in this cause, and having heard counsel thereon, the jury aforesaid by their verdict found that Ann Doe, the respondent, had committed adultery with Richard Roe, the co-respondent; that the said Richard Roe, the co-respondent, had committed adultery with the said Ann Doe, the respondent; that John Doe, the petitioner, had not committed adultery, and had not treated the respondent with cruelty, as mentioned in the answer filed in this cause. Whereupon the Judge Ordinary decreed that unless sufficient cause be shewn to the Court why this decree should not be made absolute within three months from the making thereof, the said marriage had and solemnized on the 14th day of September, 1840, at the parish church of St. James, Paddington, in the county of Middlesex, between John Doe, the petitioner, and Ann Doe, formerly Ann Thomas, spinster, the respondent, be dissolved by reason of the said Ann Doe having, since the celebration thereof, been guilty of adultery with Richard Roe, the co-respondent.

DECREED DAMAGES.

3757. Damages, according to the amount of the award by the jury, are decreed separately, and are thereby directed to be paid by the co-respondent, either to the petitioner or to trustees, according to the terms of the decree.

PROPERTY AND CHILDREN.

3758. The separate decree enforcing damages also decrees as to the custody of children, and usually directs that the amount of damages be secured for the maintenance and education of the children, unless the wife is made to sacrifice her settlement.

FORFEITURE OF SETTLEMENT.

3759. It is in the discretion of the Court, where there are children of a divorced marriage, to deprive the wife of her settlement, and to re-vest it in trustees for the sole benefit of the children, to their mother's exclusion.

INTERVENTION.

3760. Interested Intervention.-Any time during the continuance of a decree nisi, any person may intervene to set it aside and procure a revocation of the divorce; but,

3761. Official Intervention.-There are certain parties who are officially bound to intervene, should occasion for doing so fall under their notice; consequently,

* These expressions depend upon the details of the defence.

LAPSE OF TIME.

3762. Every decree nisi subsists for a defined time, during which it may possibly be set aside.

3763. Three Months.-The time defined by a decree nisi, during which intervention may arise, is usually three months; but,

3764. Six Months.—At the discretion of the Court a decree nisi must be submitted to, without further progress, for a period not exceeding six months.

THE PARTIES.

3765. Omission of Facts.-Any of the parties directly interested in preventing the divorce may intervene on showing that any facts have been omitted from the evidence which might reasonably appear to have been materially calculated to alter the decision.

3766. New Trial.-If the intervention is by the respondent or co-respondent, it must be a motion for a new trial.

THE ATTORNEY-GENERAL.

3767. Queen's Proctor.-As the sacred obligations of marriage, and the abuse of the Divorce Court, are held to be matters in which the public have a peculiar interest, express provision is made that in the event of any scandal arising upon the issue of a decree nisi, the Attorney-General is empowered to intervene through a Queen's Proctor; and

THE PUBLIC.

3768. Should all the parties to a divorce, and the AttorneyGeneral, or other authorities, refrain from intervening, any person possessed of information calculated to lead to a reversal of a decrce uisi, may intervene on public grounds; therefore,

FRUSTRATION OF PROCEEDINGS.

3769. Supposing John and Julia and Mary and Marmaduke (3708) succeed in obtaining a decree nisi, they run a multiplicity of risks that their respective delinquencies may be discovered, and all their proceedings frustrated.

COSTS OF INTERVENTION.

3770. The Petitioner.-Should the intervention be successful, the original petitioner is liable for all the costs of intervention; or,

3771. The Parties.-If collusion is proved, all guilty of the collusion are liable, and this expressly applies to a married woman with a settlement.

3772. The Movers.-If the intervention fails, then the parties moving for it bear the costs.

PERIOD NOT RESTRICTED.

3773. Though the decree nisi may name three months wherein intervention may be made, it is competent for any party to intervene any time previously to the issue of the decree absolute (3779).

DECREE ABSOLUTE.

3774. Application Essential.-Before the Court will grant a decree absolute, application must be made by the original petitioner, in strict compliance with the forms of the Court, any time exceeding three months from the date of the decree nisi; but,

3775. Option of Court.-Though the Court is authorized to entertain an application for a decree absolute at the end of three months, and may consent to one forthwith, it is not bound to pronounce a decree absolute till the expiration of six months from date of the decree nisi.

PERSONAL EFFECT.

3776. Dissolution of Marriage.-A decree absolute completely dissolves the marriage of the parties.

3777. No Longer Bound.-Subject only to the provisions in the decree, in respect of property and children (3758), the husband and wife are to each other, in law, as they were before their marriage.

3778. May Marry Again.-Mutual rights, restrictions, and obligations are destroyed and absolved from in all respects as in the case of judicial separation (3496), with the addition of the right to marry again.

PERPETUAL APPEAL.

3779. Against Decree Absolute.-Appeal can be made any number of years afterwards (3773), even against a decree absolute, if cause can be shown for the Court to entertain it (3760); so that it is provided that,

3780. Undisposed Appeal.—So long as any appeal remains in the Court, undisposed of, the parties cannot legally re-marry; but,

3781. Three Months Uninterrupted. If there is no appeal in Court undisposed of, any time exceeding three months after the date of the decree absolute, either or both of the parties divorced are at liberty; and

3782. As if Dead.-The Act expressly provides that "it shall be lawful for the respective parties thereto to marry again, as if the prior marriage had been dissolved by death."

DECREE IRREVOCABLE.

3783. When either of the parties to a divorce is legally re-married, the decree of divorce is then, but not tili then, utterly irrevocable, and no appeal against it can be entertained on any ground or repre

sentation whatever.

WIFE'S CLAIM TO DIVORCE.

CONTRAST.

3784. Absolute Right of Husband.—A husband of unimpeachable character can demand a divorce, upon proof of his wife's adultery, and that alone (3578); but,

3785. Qualified Right of Wife.-"The most innocent and deserving wife would sue in vain" for a divorce, upon the mere proof of her husband's adultery, however flagrant it may be, unless it is committed under circumstances prescribed by the law (3788).

GROUNDS OF PROCEEDING.

3786. Categorical Statement.--A wife's claim to divorce must be on the ground of adultery under circumstances of aggravation, rape, or sodomy by her husband. The last-named offence is disposed of previously (3465).

3787. Rape.-Proof of rape by a husband entitles his wife to divorce, without further evidence; but,

AGGRAVATED ADULTERY.

3788. The adultery of the husband, which entitles a wife to petition for a divorce, must be aggravated in its character, by one of the following accompanying circumstances:

3789. Adultery (incestuous) (3793); or,

3790. Adultery, with bigamy (3794); or, 3791. Adultery, with cruelty (3850); or, 3792. Adultery, with desertion (3801).

INCESTUOUS ADULTERY.

3793. Incestuous adultery is defined to be that committed by a husband with a woman whom the law would not suffer him to marry were he unmarried; that is, if the adultery be committed with any woman he would be prohibited from marrying, according to the prohibitions appearing under the head of Marriage (1652).