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§ 157. Separation Agreements. Agreements of separation between husband and wife are valid, if the separation has actually taken place at the time of the agreement or immediately follows it; but it is otherwise if a future separation is contemplated. The agreement to live separately will not be enforced, but only the provisions for maintenance, and other collateral engagements. If the parties live together again, the agreement is rescinded, and the parties are restored to their full marital rights.92

§ 158. Divorce or Judicial Separation. Divorce is the legal separation of husband and wife by the judgment of a court. There are two kinds: (1) It may dissolve the marriage, in which case it is called a divorce a vinculo matrimonii- meaning " from the bond. of marriage"; also commonly referred to as an absolute divorce. (2) Or it may suspend the effect of the marriage only in so far as cohabitation is concerned, in which case it is called a divorce a mensa et thoro- meaning "from bed and board." The effect of this is not to put an end to the marriage relation itself, but rather to do away with the principal obligations incident thereto. It is also known as a judicial separation, because such a divorce provides that the parties shall no longer cohabit. 93

In this country, jurisdiction of the courts to entertain a suit for divorce is entirely statutory; but when once conferred, it is generally exercised as in the English ecclesiastical courts.94 In the absence of constitutional restrictions, the legislature of a State has the power to grant divorces by special act; and such an act is not within the constitutional prohibition against laws impairing the obligation of contracts, marriage not being a contract within the meaning of that prohibition. This power was exercised by parliament in England and has in a number of cases been exercised by the State legislatures in this country.95

The grounds which will justify the court in granting a divorce are usually statutory. In the State of South Carolina divorces are not granted for any cause. In the State of New York absolute divorces are granted in cases of adultery, but for no other reason. The other States are much more liberal, recognizing various kinds of misconduct as proper grounds. In most of the States extreme cruelty, adultery, desertion for a certain prescribed time, and hab itual drunkenness are considered sufficient. In some States divorces are also granted for conviction of crime and imprisonment under certain circumstances; for incurable insanity; for non-support

92. See 9 Cyc. 519; 21 Cyc. 1592 et seq.; Tiffany Pers. & Dom. Rel. 168.

93. See 14 Cyc. 573 et seq.; Tiffany Pers. Dom. Rel. 171.

94. See 14 Cyc. 581; Tiffany Pers. & Dom. Rel. 172.

95. See 14 Cyc. 574; Tiffany Pers. & Dom. Rel. 208.

under certain circumstances; where the other party has obtained a divorce in another State; for causes rendering marriage void or voidable; and even for the "habitual indulgence of a violent and ungovernable temper.

29 96

The principal defenses in suits for divorce, aside from the nonexistence of the ground alleged, are: (1) connivance, (2) collusion, (3) condonation, and (4) recrimination. Connivance is the corrupt consent by one spouse to an offense by the other, and will bar a suit for such offense.97 Collusion is any agreement between the parties whereby they seek to obtain a divorce by an imposition on the court, and is ground for refusing relief.98 Condonation is the forgiveness of a marital offense constituting a ground for divorce, and bars the right to a divorce.99 Recrimination is a countercharge in a suit for divorce that the complainant has been guilty of an offense constituting a ground for divorce. Adultery is universally, and any conduct which is a ground for divorce is in most States, a complete bar to a divorce when set up in recrimination.1

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§ 159. Legitimacy of Children. The relation of parent and child springs naturally from that of husband and wife. The mutual rights and duties of the parties to this relation depend largely upon whether the child is legitimate or illegitimate. legitimate child is one who is born in lawful wedlock or within a competent time afterward, and is not the result of adulterous intercourse. An illegitimate child is one who is not born in lawful wedlock or within a competent time afterward, or who is the offspring of an act of adultery.2

There is a strong presumption that the child of a married woman is legitimate, but this presumption is one of fact, not of law, and may be rebutted by clear and convincing evidence that the husband could not have been the father.

Furthermore, under the statutes of most of our States, as in most other civilized countries, a child who is originally illegitimate

96. See 14 Cyc. 593 et seq.; Tiffany Pers. & Dom. Rel. 173 et seq.

97. See 14 Cyc. 644; Tiffany Pers. & Dom. Rel. 195.

98. See 14 Cyc. 646; Tiffany Pers. & Dom. Rel. 198.

99. But condonation is on the condition, implied by law when not express, that the wrong-doer shall not again commit that offense, and also that he shall thereafter treat the other with "conjugal kindness"; and a breach of the condition will revive

the original offense as a ground for divorce. Condonation may be by express words, if acted upon; or it may be inferred from conduct alone. See 14 Cyc. 637; Tiffany Pers. & Dom. Rel. 199.

1. See 14 Cyc. 648; Tiffany Pers. & Dom. Rel. 203.

2. See 5 Cyc. 625; Tiffany Pers. & Dom. Rel. 213.

3. See 5 Cyc. 626; Tiffany Pers. & Dom. Rel. 217.

may be made legitimate, either by a subsequent marriage of the parents, or by such subsequent marriage and acknowledgment of the child by the father.*

By the weight of authority the legitimacy of a child, not only for the purpose of determining whether he can inherit, but for all other purposes, is to be determined by the law of the place where he was born and the parents were domiciled.5

§ 160. Status of Illegitimate Children. The natural relation between a parent and his illegitimate children does not, at common law, give rise to those rights and duties which pertain to the legal status of parent and child; but to some extent the law recog nizes bastards as children. Thus:

(1) The mother is entitled to the custody and services of her illegitimate child, as against the father or strangers; but if the welfare of the child requires it, the court may award its custody to another. And, subject to the same qualifications, the father is entitled to its custody as against all but the mother.


(2) The child's domicile is determined by that of the mother.7 (3) At common law a bastard cannot inherit, either from or through his father or mother or otherwise, and he can have no heir except of his own body. His rights, says Blackstone," are very few, being only such as he can acquire; for he can inherit nothing, being looked upon as the son of nobody, and sometimes called filius nullius,' sometimes' filius populi.’ 10 These harsh rules of the common law, however, have in most States been greatly modified by statute.11

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(4) At common law the father is under no legal obligation to support his illegitimate child, but now, by statute, he may very generally be compelled to do so.12 Nor, at common law was there any such liability on the part of the mother, although it seems to be otherwise in this country." 13

§ 161. Adoption of Children. The legal adoption by one person of the child of another, giving him the status of a child by adoption, was unknown to the common law. It was recognized, however, by the Roman or civil law, and exists in many countries on the continent of Europe, which derive their jurisprudence from that law. It was long ago introduced, from the law of France or of Spain into Louisiana and Texas, and more recently, at various times and by different statutes, into most of the other

4. See 5 Cyc. 632.

5. See 5 Cyc. 642; Tiffany Pers. & Dom. Rel. 216.

6. See 5 Cyc. 637; Tiffany Pers. & Dom. Rel. 225.

7. See 14 Cyc. 845.

8. 1 Blackstone Comm. 459.
9. Meaning "the son of nobody."
10. Meaning "a son of the people."
11. See 5 Cyc. 639 et seq.
12. See 5 Cyc. 638.
13. See 5 Cyc. 638.

States. Where the artificial relation of parent and child is created by adoption under the statutes, the relation will generally give rise to substantially the same rights, duties, and liabilities as arise out of the natural relation of parent and child.14

§ 162. Duties and Liabilities of Parents-a. Duty to Maintain Child. In England and in some of our States, by statute, it is made the duty of the parent to maintain his child. In some States it is made a penal offense if he neglects to do so. Whether there is a legal duty on the part of the parent at common law to maintain his minor child, so as to render him liable for necessaries furnished the child, is a question upon which the authorities are conflicting. In England and in some of our States it is held that there is only a moral obligation, in the absence of a statute, and that there is no liability for necessaries unless there is a promise in fact to pay for them, express or implied. In other States it is held that the obligation is a legal one, and that there is a liability for necessaries, in case of non-support by the parent, in the absence of any promise in fact, or else that, if the obligation is merely a moral one, it is nevertheless sufficient to create such a liability.15

Primarily, the duty to support and maintain a child rests upon the father, and during his lifetime there is no such duty on the part of the mother; but on the death of the father the duty devolves upon the mother, subject, however, to certain limitations not applicable in the case of the father.16

b. Duty to Educate Child. Parents, however wealthy, are not under any legal duty to educate their children, although they are under moral duty to do so, if able.1

c. Allowance in Equity out of Child's Estate. When a parent is unable to support his child and the child has property, equity will make allowances therefrom for his future or past maintenance. An allowance will not be granted, however, if the parent is able to support his child, except where the child's fortune exceeds the parent's, in which case it may be maintained according to its fortune.18

d. Duty to Protect Child. The law recognizes the duty of a parent to protect his child and will uphold him therein. Thus, a parent may justify an assault and battery, or even a homicide, in the necessary defense of the person of his child. 19

e. Contracts by Child as Parent's Agent. The child, if expressly or impliedly authorized, but not otherwise, may act as his parent's

14. See 1 Cyc. 914 et seq.; Tiffany

Pers. & Dom. Rel. 221.

15. See 29 Cyc. 1605 et seq.; Tif

fany Pers. & Dom. Rel. 230.

16. See 29 Cyc. 1606.

17. Tiffany Pers. & Dom. Rel. 238. 18. See Tiffany Pers. & Dom. Rel. 235; 29 Cyc. 1616 et seq.

19. Tiffany Pers. & Dom. Rel. 237; 3 Cyc. 1048; 21 Cyc. 826.

agent and bind him by a purchase of goods, or by any other contract; and if the parent allows the child to have an apparent authority he constitutes him his agent by estoppel — that is, he will not be allowed to deny his agency.20

f. Parent's Liability for Child's Torts. A parent is not liable, merely because of the relation, for the torts or wrongs of his child; but he may be liable for torts committed by the child as his agent or servant, or with his knowledge or acquiescence. There was such a liability under the civil law, but it never was recognized by the common law.21

g. Parent's Liability for Child's Crimes. The relation of parent and child does not render the parent liable for his child's crimes; although he may become liable, of course, by counseling, aiding, or abetting the child therein.22

§ 163. Rights of Parents and of Children—a. In General. To enable them to perform their duties, parents have, subject to certain restrictions, (1) the right to correct their children; (2) the right to their custody; and (3) the right to their services and earnings. Blackstone says that these rights are given to parents, partly to enable them to more effectively perform their duty, and partly as a recompense for their care and trouble in discharging it.23

b. Parent's Right to Correct Child. A parent, or one standing in loco parentis, that is, in the place of a parent, may correct and panish his child in a reasonable manner; but if the correction is grossly excessive, either in its nature or extent, or if it is wanton or without cause, he will be guilty of assault and battery and otherwise amenable to the criminal law.2 24

c. Custody of Children. At common law, in England, the father, and on his death the mother, was entitled as a matter of course to the custody and control of their minor children, except in case of their gross unfitness. Equity, however, would not allow the right to control as against the well-being of the child. The common-law doctrine has also been modified by statute in England. In this country the courts recognize the parental right of custody in the different jurisdictions, but the prevailing doctrine is that, in awarding the custody of a child, the welfare of the child is

20. See 29 Cyc. 1664; and supra, 88 145, 147.

21. See 29 Cyc. 1665; Tiffany Pers. & Dom. Rel. 239.

22. See 29 Cyc. 1667; and supra, § 92.

23. 1 Blackstone Comm. 452.

Kent says: "The rights of parents result from their duties. As they are bound to maintain and educate their

children the law has given them a right to such authority, and, in the support of that authority, a right to the exercise of such discipline as may be requisite for the discharge of their sacred trust. This is the true foundation of parental power." 2 Kent Comm. 203.

24. See 29 Cyc. 1585; Tiffany Pers, & Dom. Rel. 243.

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