CHAPTER II. DIVORCE. The provisions of this chapter have been modified from ARTICLE I. Nullity. II. Dissolution. III, Separation. IV. General Provisions. ARTICLE I. NULLITY. SECTION 54. Cases where marriages may be annulled. 55. Application for a decision of nullity. 56. Children of annulled marriage. 57. Custody of children. 58. Effect of judgment of nullity. S 54. A marriage may be annulled for any of the following causes, existing at the time of the marriage :1 1. That the party seeking to have the marriage annulled was under the age of legal consent; unless, after attaining the age of consent, such party for any time freely cohabited with the other as husband or wife ;3 2. That the former husband or wife of either party was living, and the marriage with such former husband or wife was then in force;" 3. That the wife was under the age of fourteen years, and that the marriage was without the con Cases where may be an marriages nulled. Applica tion for a sent of the person having the legal charge of her person, and was a punishable offense on the part of the husband, and has not been followed by cohabitation, nor ratified by any mutual assent of the parties since the wife attained the age of fourteen years ;5 4. That either party was of unsound mind; unless such party, after coming to reason, freely cohabited with the other as husband or wife;" 5. That the consent of either party was obtained by fraud, unless such party afterwards, with full knowledge of the facts constituting the fraud, freely cohabited with the other as husband or wife;8 6. That the consent of either party was obtained by force, unless such party afterwards freely cohabited with the other as husband or wife; or, 7. That either party was, at the time of marriage, physically incapable of entering into the married state; and such incapacity continues, and appears to be incurable.12 12 New. but in accordance with the decisions in Devanbagh v. Devanbagh, 5 Paige, 554; 6 id., 175. S55. Within the time limited by law for the com decision of mencement of actions, application to annul a marriage may be made: nullity. 1. If for the cause that a former husband or wife was living; by either party during the life of the other, or by such former husband or wife; 2. If for the cause of idiocy; by any relative of the idiot, interested to avoid the marriage, during the life of either party; 3. If for the cause of insanity other than idiocy; by any relative of the insane party interested to avoid the marriage, and at any time during such insanity, or after the death of the insane party in that condition, and during the life of the other party; or by the insane party after the restoration of reason; 4. If for the cause of fraud or force; by the injured party, or the parent or guardian of such party, or a relative of such party interested to avoid the marriage, during the life of either party; 5. If no application has been made by the party or a relative, application may be made in any of the foregoing cases, at any time during the life of both parties, by a guardian of the insane or injured party, appointed by the court for the purpose; 6. If for the cause of physical incapacity; application can only be made by the injured party against the incapacitated party, and in all cases must be made within two years from the time of contracting the marriage; 7. If for the cause specified in subdivision 3 of section 54, by the wife only. 2 R. S., 142, §§ 22, 24, 27, 30, 33. 2 R. S., 144, § 36, should be inserted in the Code of Civil The words "within the time limited by law" have been annulled $56. Where a marriage is annulled on the ground Children of that a former husband or wife was living, and it is marriage. adjudged that the subsequent marriage was contracted in good faith, and with the full belief of the parties Custody of children. Effect of judgment that the former husband or wife was dead, or where a marriage is annulled on the ground of insanity, children begotten before the judgment must be specified in the judgment, and are entitled to succeed in the same manner as legitimate children to the estate of the parent, who, at the time of the marriage, was competent to contract. 2 R. S., 142, §§ 23, 28. $57. The court must award the custody of the children of a marriage annulled on the ground of fraud or force, to the innocent parent, and may also provide for their education and maintenance out of the property of the guilty party. 2 R. S., 142, § 32. S 58. A judgment of nullity of marriage rendered of nullity. during the life of the parties, is conclusive evidence of nullity; but if rendered after the death of either party to the marriage, it is conclusive only as against the parties to the action, and those claiming under them. 2 R. S., 144, § 37. ARTICLE II. Marriage, how dissolved. Divorce for adultery. DISSOLUTION. SECTION 59. Marriage, how dissolved. 60. Divorce for adultery. 61. Cases in which divorce for adultery is denied. 62, 63. Legitimacy of issue. 64. When re-marriage is forbidden. $59. Marriage is dissolved: 1. By the death or sentence to imprisonment for life of either of the parties; or 2. By the judgment of a competent tribunal. $60. The dissolution of a marriage may be adjudged, whenever adultery has been committed by husband or wife, in any of the following cases: 1. Where both husband and wife were actual inhabitants of this state at the time of the commission of the adultery; 2. Where the marriage took place within this state;1 3. Where the injured party, at the time of the commission of the adultery, and at the commencement of the action, was an actual inhabitant of this state;2 4. Where the adultery was committed in this state, and the injured party, at the commencement of the action, was an actual inhabitant of this state.1 12 R. S., 144, § 38; modified by substituting "took place was contracted or solemnized," and the word "inhabitant" for "resident," wherever the latter occurs. 'Laws of 1862, 446, ch. 246. S 61. Although the fact of adultery is established, Cases in a judgment of divorce may be denied: 1. Where the application for divorce was not made within five years after the discovery by the applicant of the adultery charged; 2. Where the adultery appears to have been committed by the procurement, or with the connivance of the party asking the divorce ;1 3. Where the injured party has expressly forgiven the adultery charged, or has voluntarily cohabited with the guilty party as husband or wife, with full knowledge of the fact; and has ever since been treated by the latter party with conjugal kindness; or, 4. Where it appears that the applicant has also been guilty of adultery, without the procurement or connivance of the other party.* 12 R. S., 145, § 42, subds. 1, 2. 2 Modified from 2 R. S., 142. See Rish. Mar. and Div., 32 R. S., 145, § 42, subd. 4. These words are substituted for "under such circum- which di vorce for adultery is denied. |