RESTITUTION OF CONJUGAL RIGHTS.

MUTUAL CLAIMS.

3830. The parties to a marriage have each a personal claim upon the other, which claim is recognized and enforced, if need be, by the Court for Divorce and Matrimonial Causes.

FORM OF PETITION.

3831. A petition for Restoration of Conjugal Rights is the best explanation of the scope and power of the Court in such a case :

1. Same as previously given (3805).

2. That the said John Doe hath ever since the 18th day of June, 1857, without any just cause, refused and still refuses both to permit your petitioner to live and cohabit with him, and also to render her conjugal rights.

YOUR PETITIONER therefore humbly prays that your Lordship will be pleased to declare that your petitioner was, on the 14th day of September, 1853, lawfully married to the said John Doe, AND TO ORDER that the said John Doe do take home and receive your petitioner as his wife, and render her conjugal rights, AND TO DECREE that the said John Doe do pay the costs of and incident to this petition. (Signed) ANN DOE. The petition must be accompanied by affidavit to same effect.

CERTAINTY OF SUCCESS.

3832. The Court is bound, and the petitioner is entitled to require, a decree, no matter what the real motive may be, unless the petitioner has committed such a matrimonial offence as would be ground for judicial separation (3327); but,

3833. Qualification.—It appears that an amount of cruelty or a degree of misconduct which would not suffice for sustaining a petition for judicial separation will be held to be a sufficient plea for denying conjugal rights.

3834 Wife's Insanity.-Insanity on the part of a wife was pleaded in vain in one case where the wife had turned Roman Catholic, and had been induced to take vows of perpetual chastity. The wife afterwards repented her vows, and petitioned for restitution of conjugal rights. The husband pleaded her vows as the best proof of her insanity, but the Court rejected the plea on the ground that he had induced her to become a Roman Catholic and that he was therefore indirectly responsible for the insane vows she had made. 3835. Voluntary Deed.-A voluntary deed of separation (3293) is

no bar to restitution of conjugal rights, as the law does not recognize any private understanding to live separate (3285).

3836. Ante-Nuptial Incontinence.-It appears that ante-nuptial incontinence on the part of the wife is a successful plea by her husband against her petition for restitution.

UNDER HUSBAND'S PETITION.

3837. If the wife petitioned against does not make any of the foregoing pleas, nor prove that in withdrawing from living with her husband she was justified by such a matrimonial offence on his part as would be ground for judicial separation, the Court can and must compel her to return (3840), subject to penalties (3520); but,

3838. Wife's Ill Health.-Where the wife pleaded, in answer to her husband's suit for restoration, that he had no fixed abode in this country, but that his residence was in Ireland, and that she was in delicate health, and confined to her house in London, and medical attendants stated that she was incapable of removing to Ireland ; her opposition prevailed.

UNDER WIFE'S PETITION.

3839. Where the wife is the petitioner, she must prove that she is free from legal blame, and that the lawful profession or avocation of her husband does not prevent him from returning; if not, the Court can and must compel his return as in the case of a wife (3837); yet,

3840. Limited Power.-The Court cannot, and does not, assume to enforce cohabitation; it can only compel the husband and wife to live under the same roof.

JACTITATION OF MARRIAGE.

DEFINITION.

3841. One of the provinces of the "Court for Divorce and Matrimonial Causes," is to decide in cases of what is called "Jactitation of Marriage," that is, when one party falsely boasts or gives out that he or she is married to the other, whereby a common reputation of their marriage may ensue.

3842. Formerly Frequent.-Suits for jactitation were of very familiar occurrence in the Ecclesiastical Courts till the year 1776, when they were brought into disrepute by the associations of a celebrated trial before the House of Lords, charging the Duchess of Kingston with bigamy.

PROCEEDINGS.

3843. By the Aggrieved Party.-Proceedings for jactitation can, as a rule, only be taken by an aggrieved party; but,

3844. By Guardians.—Where the aggrieved party is a minor, the parents or guardians have been decided to be competent petitioners.

FORM OF PETITION.

3845. The precise meaning of jactitation will be best shown by giving a form of petition :

To the Right Honourable the Judge Ordinary of Her Majesty's Court of Divorce and Matrimonial Causes.

Court Starap.

SHEWETH,

The Thirtieth day of December, 1858. The PETITION of John Doe, of James Street, Hanover Square, in the county of Middlesex, Esquire,

1. That Ann Roe, of Margaret Street, Hastings, in the county of Sussex, did, in the several months of October, November, and December, 1858, at Johnson Street, Maida Hill, in the county of Middlesex, and in divers other places, wilfully and without the authority of your petitioner, boast and assert that she was married to your petitioner.

2. That your petitioner is a widower, and was and is in no way married to the said Ann Roe.

3. That the said Ann Roe refuses to desist from boasting and asserting that she is married to your petitioner.

YOUR PETITIONER therefore humbly prays that your Lordship will be pleased TO DECLARE that no marriage has ever taken place between your petitioner and the said Ann Roe, AND TO ORDER that the said Ann Roe do cease and desist from boasting or asserting that she was married to your petitioner, AND THAT she be enjoined perpetual silence (3847) in the premises, and that she do pay the costs of and incident to this petition.

(Signed) JOHN DOE.

3846. Costs only Punishment.-Payment of costs is the only punishment that the Court can inflict in cases of jactitation.

3847. Effect of Decree.-Perpetual silence includes everything required by the Court, and is enforced subject to the particulars given as the consequences of either party molesting the other in case of judicial separation (3520).

DEFENCE IN JACTITATION.

3848. Proof of Marriage.-If the party petitioned against can prove the marriage alleged, of course the petition must fail; and 3849. Otherwise Successful.—In the absence of such proof the defence has sometimes been successful; as where the boasting has not been proved, or that the charge was trivial, the boasting being unimportant or without malice.

DECLARATIONS OF LEGITIMACY.

IMPORTANT THOUGH RARE.

3850. Amongst the multifarious business which the Divorce Court is charged with, that of the Declaration of Legitimacy is not unimportant, though rare.

3851. Onus of Proof.-It sometimes happens that the marriage of a person's parents may be in some doubt, and in that case the onus of proof of legitimacy lies upon the children who may be charged with illegitimacy.

3852. Considerate Provision.—No provision of the law could be more truly considerate than that which enables a doubt of legitimacy to be settled by means of a declaration by an authorized tribunal.

FORM OF PETITION.

3853. A petition for a Declaration of Legitimacy may be as follows:

To Her Majesty's Court for Divorce and Matrimonial Causes. In the Matter of a Declaration of the Legitimacy of William Doe. The 19th day of January, 1864. The Petition of William Doe, of the parish of Burlington, in the county of

Sheweth,

Kent.

1. That your petitioner is a natural-born subject of her Majesty Queen Victoria, and is domiciled in England.

2. That on the 8th day of August, 1812, at the Quebec Arms, in the Town and Parish of Selkirk, in the kingdom of Scotland, Thomas Doe, then known as Alexander Fraser, was married to Mary Roe, spinster.

3. That the marriage of the said parties took place in the form and manner

following, to wit: the said Thomas Doe, in the presence of two witnesses. received and acknowledged the said Mary Roe as his lawful wife, and the said Mary Roe, in the presence of the said two witnesses, accepted and declared the said Thomas Doe to be her lawful husband.

4. That from and after the said 8th day of August, 1812, the said Thomas Doe and his said wife lived and cohabited together as man and wife, and have had issue of their said marriage several children.

5. That your petitioner is the son of the said Thomas Doe and his said wife, and was born on or about the 18th day of April, 1814, in a house then known as No. 4, George Street, in the county of Middlesex.

6. That the aforesaid marriage of your petitioner's said parents on the said 8th day of August, 1812, was and is by the laws of Scotland a valid marriage to all intents and purposes in the law whatsoever.

YOUR PETITIONER therefore humbly prays that this honourable Court will be pleased to order that her Majesty's Attorney-General (3856), and all other proper parties, may be cited, and thereafter to make a decree, declaring:1. That the said Thomas Doe and Mary his wife were, to wit, on the 8th day of August, 1812, lawfully married.

2. That your petitioner is the lawful son of the said Thomas Doe and Mary his wife, and is the lawful heir of the said Thomas Doe.

3. That your petitioner is a natural-born subject of her Majesty the Queen. AND that your petitioner may have such further and other relief in the premises as to this honourable Court may seem meet.

And your petitioner will ever pray, &c.

NOTE-The petition, of which this is a copy, will be filed on the expiration of one month from the 19th day of January, 1864, the date of delivery hereof, to her Majesty's Attorney-General.

(Signed) JOHN DOE.

3854. Must be Filed. The petition must be filed, as indicated, one month after a copy has been deposited with the AttorneyGeneral.

3855. Affidavit.—Affidavit to same effect must be filed at same time.

ATTORNEY-GENERAL NECESSARY RESPONDENT. 3856. In all cases of petitions for Declaration of Legitimacy, the Attorney-General is the necessary respondent, and the case has to be conducted as between the petitioner and him. Opponents of the petition must take action accordingly.

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