Ex parte Spencer

Paterson, J., dissenting.

For the reasons given by me when this matter was before me in chambers,! dissent. (In re Spencer, 82 Cal. 110.) I do not believe that the legislature intended to provide that the immediate daily earnings of a man, having a wife and child dependent upon him for surport, should be taken to support the wife of another, because he may have had, at some prior period of his life, the fortune or misfortune to be her husband; yet to that extent the exigencies of the conclusion reached by my learned associates carry us. It is a construction which seems to me to be at variance with the entire scope and spirit of the law governing the subject of “ personal relations.” Such a law, if it exist, should be repealed, or the right to an absolute divorce and privilege of remarriage be abolished. The case of Eidenmuller v. Eidenmuller was based upon statutes entirely different from the provisions of our code. At that time divorces were granted from bed and board, and there was no provision like that of section 141 of the Civil Code, viz., “that in executing the five preceding sections the court must resort, first, to the community property; then second, to the separate property of the husband.” The meaning of these provisions I attempted to point out in the opinion above referred to.

In view of the construction given to the provisions of the code by the majority, a word as to the policy — im*467policy rather — of such a law may not be out of place, as a suggestion to the legislative department, not, however, in an attempt to show that the construction adopted by the court is erroneous.

The law encourages the marriage of persons competent to assume the marriage relation, and fosters its continuance. All contracts and conditions in restraint of marriage are void, being against public policy. In this state divorce is absolute; there is no such thing as divorce from bed and board under the law as it now exists. When • a marriage is dissolved, each party is relieved from all the obligations of the bond. From the time of the dissolution they are single persons, and their acts are, as between themselves, the acts of strangers, — no obligations or duties are due from one to the other. They are free to marry again, — indeed, as stated above, the law encourages them in the assumption of marital rights and obligations. (Perhaps one good effect of the court’s construction will be to discourage them in the future.) Recognizing the fact that the marriage relation in some instances should no longer exist, six different grounds are prescribed, upon any one of which, in a proper case, the relation may be dissolved. In certain cases penalties are fixed to be imposed upon the guilty party, but they all relate to the property, separate and community. No personal penalty is provided, such as imprisonment, or forfeiture of or limitation upon the privilege of remarriage.

Under these provisions a divorced man marries a second or third time. The divorced wife does the same thing. The man upon whom devolves the duty of supporting his family is dependent upon his daily earnings to perform this duty. The woman, who has by the decree of divorce been released from all duties toward him, demands that his earnings, or a portion of them, shall be devoted to her support, and his lawful wife and their children must take what is left. If he refuse to take the *468bread from them and give it to her who owes him no duty, he may be thrown into jail, and be thus deprived of the power to support any of them. Such a law as this —a law which permits or encourages a man to assume the responsibilities of husband and father, and imposes at the same time such inconsistent conditions, and such unequal and inequitable burdens—■ ought not to blister the pages of our statute-books. Either absolute divorce should be denied and the privilege of remarriage be abolished, or it should be provided—• as I believe our law's under proper construction do now provide—that only the property, separate and community, in existence at the time the marriage is dissolved, may be taken for the support of the divorced w'ife. It is an anomalous condition of domestic affairs w'hich requires a man who has been permitted and encouraged to assume new marital duties and obligations to support a legal relict, who is not only matrimonially dead to him, but is perhaps married to another, who is unable or unwilling to support her.

The leading opinion does not discuss the question whether or not the subject before us can be tested properly on habeas corpus. I deem it unnecessary, therefore, to investigate or consider that matter.