Stewart v. Stewart , 78 Me. 548 ( 1887 )

E.wert, J.

The power of the court to decree divorces, is derived solely from the statute. It has no common law jurisdiction over such matters. It can decree a divorce for such cause only as the legislature authorizes. The only statute authority relied upon in this case, is that clause authorizing the court to decree a divorce for " utter desertion continued for three consecutive years, next prior to the filing of the libel.”

This case, therefore, presents the question whether the legislature, by that statute, intended to authorize a divorce where one party, without good cause, denies the other sexual intercourse for three consecutive years.

In England formerly, divorces were not allorved for desertion. The only remedy for such a wrong, was a suit in the Ecclesiastical courts for the restitution of conjugal rights. But, those courts, while requiring the offending party to return and live with the libellant, never undertook to compel the granting of sexual intercourse. They made a clear distinction between " marital intercourse,” (sexual intercourse) and "marital cohabitation” (living together). The latter was a right to be enforced by the courts. The former was a right to be enforced only in foro confidential. Lord Si'OWEim, in Foster v. Foster, 1 Hag. Con. 154, said, " the duty of matrimonial intercourse cannot be compelled by this court, though matrimonial cohabitation may.” In Orne v. Orne, 2 Adams, 382, the precise question arose. It was a libel by the wife for restitution of marital rights. It appeared that the husband lived with her in the same dwelling’, but refused to have sexual intercourse with her. The libel was dismissed on the ground there was no power in the court to remedy such a refusal.

It was also early held in England that such refusal was not an act of cruelty. Aguilar v. Aguilar, 1 Haggard, 776. It has been held in America that such refusal is not an act of cruelty, and that it will not justify desertion, nor any other marital dereliction by the other party. Reid v. Reid, 24 N. J. Eq. 332; Eshback v. Eshback, 23 Pa. St. 343; Cowles v. Cowles, 112 Mass. 298. It has also been expressly held that such refusal is not the desertion contemplated by the statutes authorizing divorces for desertion. Southwick v. Southwick, 97 Mass. 327; Steele v. Steele, 1 McArthur (D. C.), 505.

Decisions are cited from the courts of some other states, which seem to hold the contrary doctrine. There is a difference between the statutes of those states, and our statute. Our statute uses the phrase, " utter desertion.” The statutes upon which the opposing decisions are based, omit the word, utter. The language of our statute, enacted in 1883, is the same verbatim as that in the Massachusetts statute (Pub. Stats, of 1882, c. 143, § 1), which had already received judicial construction in Southwick v. Southwick, supra. The inference is, that our legislature in using the same language, intended the same construction.

Sexual intercourse is only one marital right or duty. There are many other important rights and duties. The obligations the parties assume to each other, and to society, are not dependent on this single one. Many of these obligations, fidelity, sobriety, kind treatment, &c., have legal sanctions, and can be enforced, or their breach remedied by legal process. This obligation in question is of a nature so personal and delicate, and dependent so much on sentiment and feeling, that the English Ecclesiastical courts, though reaching far-into the privacy of domestic life, have stopped short of this. We do not think our legislature intended to call the denial of this one obligation an "utter desertion,” while the party might be faithfully and perhaps meritoriously fulfilling all the other marital obligations.

Exceptions overruled.

Walton, Danfortii and Foster, JJ., concurred.