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the wife to save, to stay at home, and to distribute that which is gotten for the nurture of the children and family; which to maintain God has given the man greater wit, better strength, better courage, to compel the woman to obey by reason or force; and to the woman beauty, fair countenance, and sweet words, to make the man obey her again for love. Thus each obeyeth and commandeth the other; and they two together rule the house so long as they remain in one." 1

In accordance with these principles, and perhaps, too, the laws of nature and divine revelation, the husband is the head of the family, and dignior persona. As to the more strictly personal consequences of the marriage union, his rights and duties have suffered no violent change at our modern law. It is for the wife to love, honor, and obey: it is for the husband to love, cherish, and protect. The husband is bound to furnish his wife with a suitable home; to provide, according to his means and condition of life, for her maintenance and support; to defend her from personal insult and wrong; to be kind to her; to see that the offspring of their union are brought up with tenderness and care; and generally to conduct himself, not according to the strict letter of the matrimonial contract, but in its spirit. So long as he does this, his authority is acknowledged at the common law and fairly upheld even to this later date; and if the wife's wishes and interests clash with his own, she must yield.2

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§ 35. Duty of Spouses to Adhere or Live Together. Marriage necessarily supposes a home and mutual cohabitation. Each party has therefore a right to the society of the other. They married to secure such society. And the obligation rests upon both to live together, or, as the expression sometimes goes, to adhere. This is the universal law. Its observance is

1 Commonwealth of England, Book 1, ch. 2, quoted in Bing. Inf. & Cov. p. 184.

2 Lord Stowell observes that the law intrusts the husband not only with a certain degree of care and protection, but also" with authority over his wife. He is to practise tenderness and affection, and obedience is her duty." Oli

ver v. Oliver, 1 Hag. Con. 361; 4 Eng.
Ec. 429. Modern statutes recognizing
the wife's separate property or charging
family necessaries upon the property of
both spouses do not deprive the husband
of his legal consideration as head of
the house. Tyler v. Sanborn, 128 Ill.
136; Yarborough v. State, 86 Ga. 396.
8 1 Fraser, Dom. Rel. 447, 452.

essential to the mutual comfort of husband and wife, and the well-being, if not the existence, of their children. But to this rule there are obvious exceptions. The wife is not bound to live with her husband where he is imprisoned, or has otherwise ceased to be a voluntary agent and to perform the duties of a husband. Nor if he is banished. For marriage does not force the parties to share the punishment of one another's crimes. This was the rule of the civil as it is that of the common law.1 And in general such causes as would justify divorce in any State justify the innocent party in breaking off matrimonial cohabitation likewise. But partial and temporary separation for purposes connected with the husband's profession or tradeas, for instance, where he is an army officer-constitutes no breach of the marriage relation unless continued beyond necessary and reasonable bounds, or accompanied by negligence to provide, while absent, for the maintenance of wife and family. And under some other circumstances cohabitation may be properly allowed to cease for a time without involving the breach of marital obligations.2

§ 36. Breach by Desertion, &c.; Duty of making Cohabitation Tolerable. — This subject is most commonly considered where redress is sought because one or the other party deserts, such desertion formerly calling for the restitution of conjugal rights, but in these days furnishing rather a cause of divorce to the injured spouse, not to speak of the enlargement of an abandoned wife's rights and responsibilities, despite the rules of coverture. These matters, and particularly divorce for desertion, are found duly considered in other books, and the duty of matrimonial adherence more fully developed.3 We observe here that, in conformity to the world's customs and general principle, it is the wife's actual withdrawal from home which admits the less readily of a justifying explanation, and exposes the pair to scandal. But the husband may be at fault by mak

1 Co. Litt. 133; 1 Bl. Com. 443; 1 Fraser, Dom. Rel. 448; 2 Kent, Com. 154.

2 See 2 Kent, Com. 181; 1 Fraser, Dom. Rel. 240 et seq.; Ib. 447; Chre

tian v. Husband, 17 Martin (La.) 60; Watts v. Watts, 160 Mass. 464.

8 See Schouler, Hus. & Wife, Part IX.; 1 Bishop, Mar. & Div. §§ 771-810. 4 Ib.; Starkey v. Starkey, 21 N. J.

Eq. 135.

ing the home unfit for an honest wife to occupy with dignity, or by turning his wife out, or even by encouraging her to leave it when it was right that she should remain.1 It happens often that the husband instead forsakes the home, leaving the wife in it, such withdrawal being rightful or wrongful according to the circumstances.2

Mere frailty of temper on a wife's part, not shown in marked and intolerable excesses, would hardly justify a husband in withdrawing the protection of his home and society. But it is held that the wife's violent and outrageous behavior justifies a husband in seeking divorce from bed and board, and, seemingly, in leaving her. The moral duty of living together involves, doubtless, the reciprocal obligation of making that life agreeable, according to the true status of the married parties; but the extent of the legal duty is not so easily definable. Upon the point of redress, in fact, codes widely differ; the practical difficulty being, under our laws, that married spouses have little remedy until it comes to the last extremity of divorce.5 Manifestations of bad temper on one side must necessarily weaken the duty of adherence on the other; extreme cruelty, or cruel and abusive treatment (which on a husband's part may consist in mental torturing, and not in physical violence alone) is now frequently made a legal cause of divorce; yet, at the same time, mutual forbearance and self-sacrifice are essential to the well-being of every household; marriage, when rightly considered, working a harmony of character by the constant attrition to which the two natures are exposed; and mere bickerings and misunderstandings ought not to afford legal cause for separation. Ill-treatment, too, followed by a peaceable and on the whole harmonious life together, is not to be brought up long after against the offender.6

Under this head we may add that the duty of cohabitation

1 McCormick v. McCormick, 19 Wis. 639. Nor even her occasional intem172. perance, semble, according to Heyes v. Heyes, 13 P. D. 11.

2 McClurg's Appeal, 66 Penn. St. 366. See, as to divorce for desertion, Schouler, Hus. & Wife, §§ 515-523.

8 Yeatman v. Yeatman, L. R. 1 P. & D. 489; Johnson v. Johnson, 49 Mich.

4 Lynch v. Lynch, 33 Md. 328.

5 See, as to divorce for cruelty, Schouler, Hus. & Wife, §§ 507-514. 6 Ib.; 49 Mich. 600.

or adherence is not fulfilled by literal or partial compliance. Thus the refusal of sexual intercourse and the nuptial bed, without good excuse, is a serious wrong which husbands, at all events, are disposed to construe into justifying ground for divorce. Living in the same house, but wilfully declining matrimonial intimacy and companionship, is per se a breach of duty, tending to subvert the true ends of marriage. So, too, a husband who unreasonably withdraws cohabitation from his wife may be deemed guilty of legal desertion, even though he continue to support her.2 But sexual intercourse, the use of the same chamber, or the occupation of the same bed should be mutually regulated with considerations of health as well as kindly forbearance; and a husband who wantonly abuses his wife so as to inflict needless pain and injury upon her, who regards only his animal cravings and disregards her health and delicate organization, is guilty of legal cruelty. Mere preference, however, for living apart, founded upon agreeable and convenient considerations, 'ought not, even though one's health might be the better for it, be indulged in by husband or wife.

§ 37. The Matrimonial Domicile. As there must be a home, so there is also a matrimonial domicile of the parties recognized by universal law. And the husband, as dignior persona, has the right to fix it where he pleases. The wife's domicile merges in that of her husband. Grotius says: "De domicilio constituere jus est marito." 5 But this applies only to the real domicile of the husband; not to a fictitious place of residence which he may take up for a special purpose, or as an involuntary agent. In a genuine sense the domicile of the husband becomes that of the wife, and wherever he goes she is bound to go likewise; not, however, unless his intent be bona fide and without fraud upon her person or property rights. In

1 See Schouler, Hus. & Wife, § 528; Southwick v. Southwick, 97 Mass. 327; 1 Bishop, Mar. & Div. 5th ed. § 778.

2 Yeatman v. Yeatman, L. R. 1 P. & D. 489.

Ib.; Moores v. Moores, 1 C. E. Green, 275; Melvin v. Melvin, 58 N. H.

569; Mayhew v. Mayhew, 61 Conn. 233. See Shaw v. Shaw, 17 Conn. 189, criticised in 1 Bishop, § 760.

Morse v. Morse, 65 Vt. 112.

5 2 Kent, Com. 181; 1 Fraser, Dom. Rel. 240 et seq.; Ib. 447.

61 Fraser, Dom. Rel. 447, 448; 1 Burge, Col. & For. Laws, 260; Whar

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certain cases the wife may perhaps be said to acquire a domicile or legal forum for divorce and similar purposes. But the exception, if it exist, is limited by the just necessity. To a wife living apart from her husband, no separate domicile is conceded for testamentary purposes.2 Nor does a change of the wife's abode change the husband's or the matrimonial domicile. In general, where husband and wife live together the domicile of the wife follows that of the husband.1

§ 38. Same Subject; Husband's Right to establish Domicile. -Any contract, therefore, which the husband may make with his wife or her friends, before marriage, not to take her away from the neighborhood of her parents, is void. Public policy repudiates all contracts in restraint of such marital rights. There might be circumstances under which such a promise would be reasonable, but at best it can create a moral obligation only. Nor is a secret compact of the parties before marriage that they would not live together a binding contract to supersede their open vows at the ceremony.5 The husband has the right to establish his domicile at any time wherever he pleases, and the wife must follow him through the world. If she refuses to go with him, his own conduct being upright and honorable in the premises, she places herself in the wrong, and while she persists he is not bound to support and maintain her.7

But the courts of our day hesitate often to apply a rule so apparently harsh as that announced in the last sentence. With the increasing regard for female privileges has grown up a strong disposition to reduce the husband's right over the

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47.

Scholes v. Murray Iron Works Co., 44
Iowa, 190; Johnson v. Johnson, 12
Bush, 485; Anderson v. Watt, 138 U. S.
694.

4 77 Ga. 84.

5 Franklin v. Franklin, 154 Mass. 515. 6 Hair v. Hair, 10 Rich. Eq. 163; McAfee v. Kentucky University, 7 Bush, 135; Gahn v. Darby, 36 La.

2 Paulding's Will, 1 Tuck. (N. Y.) Ann. 70.

Babbitt v. Babbitt, 69 Ill. 277;

Porterfield v. Augusta, 67 Me. 556; Morse v. Morse, 65 Vt. 112.

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