Small v. Small

Shepley, C. J., orally.

The wife left her husband’s home, and, at the institution of this process, had been absent about eleven months. During the additional two months, since the filing of the libel, she has declined to return, and her language indicates a purpose of living hereafter separate from him. There does not appear to have been any just occasion for her conduct. Against her husband, or against the arrangements he has always made for her support and comfort, there has not been shown any thing to justify her absenting herself from him. Against her, there has appeared no occasion for this legal proceeding, except the desertion charged in the libel. Is this a sufficient ground on which to decree a divorce? One cause only is alleged. That is to say, the desertion. The statute of 1841 has made such provision for that description of cause, as to the Legislature, in their judgment, seemed proper. Their view was, that it would be unsuitable to authorize a divorce for that cause alone, unless it was continued for at least five successive years. That is an exposition of what the Legislature deemed to be a sound discretion, in such cases. That provision is unrepealed. It is unaltered and unaffected by the Act of 1849, upon which, probably, this libel was expected to be sustained.

If, on every occasion of a departure for a short time, by one of the parties from the other, a divorce could be had, the marriage contract could be rescinded with great facility; it would in effect, be but an arrangement to continue during the pleasure of both parties. Such a rule could not be consistent with public morals. But whatever our own reasonings might be, we have in this class of cases, no discretionary power. The will of the Legislature, declared in Revised Statute, chap. 89, sect. 2, clause 3, is imperative. Libel dismissed.