Cooke v. Cooke

Brown, J.,

concurring: I concur fully in the opinion of the Court by Justice Ilolce. It clearly demonstrates that under the act of 1907, as amended, the fact of separation for ten successive years, the residence of the plaintiff within this State for that period, and that there áre no living children of the marriage, are all'the facts required to be alleged or proved to support a decree for divorce a vinculo.

It is contended that the plaintiff must allege and prove that the plaintiff is the injured party. There are no such words in the act, although they are and have been in the Revisal long prior to the act of 1907.

I think those words plainly apply only to those causes of action which grow out of the personal misconduct of the parties. They would be out of place in the act of 1907, and are entirely inconsistent with its spirit and purpose. That act does not create a cause for divorce, so to speak, but only a ground for the annulment of the marriage tie.

As the opinion of the Court points out, this act differs in its language from other somewhat similar statutes, in that it uses the past tense: “and they shall have lived apart for ten successive years.”

*279It is impossible to conceive tbat after tbe expiration of so long a period tbe Legislature intended tbat tbe married life of tbe parties should be opened up and tbe dread skeleton of an unhappy past be resurrected and displayed in all its nakedness to tbe public gaze.

Gui bonof Tbe parties bave been separated so long tbat reconciliation is hopeless, and there are no children to be con--cerned. "Why expose their unhappy past? There may bave been no disgraceful wrong on tbe part of either, only irreconcilable differences.

It is plain to me tbat tbe object of tbe act is to annul tbe marriage tie, and to give such unfortunate persons an opportunity to marry again, and perchance to make a happy and congenial union, as such relation leads to virtue and unselfishness and makes better and more useful citizens.

After ten long years of separation, why inquire into whose fault it was ? Why dig up from their graves tbe buried memories of broken lives ?

It is better to let tbe dead past bury its dead, and not disturb tbe remains. Such was evidently tbe wise and humane purpose of tbe Legislature.