ARTICLE LV.—OF DIVORCE AND SEPARATION.

 

§1313. The Supreme Court, any circuit court, or any justice of the Supreme Court at chambers, may, by a sentence of nulity, declare void the marriage contract for either of the following causes, existing at the time of marriage:

 

1.  That the parties were related to each other within the fourth degree of consanguinity.

 

2.  That the parties, or either of them, had not attained the legal age of marriage.

 

3. That the husband had an undivorced wife living, or the wife had an undivorced husband living, (or that either party being divorced, was the guilty party in such divorce, and that the former husband or wife was then living).

 

4.  That the husband, being a foreigner, had failed to comply with the requirements of the law validating marriages with the female subjects of this Kingdom.

 

5.  That one of the parties was an idiot or lunatic.

 

6.  That one of the parties was impotent or physically incapable of entering into the marriage state.

 

§1314. A suit to annul a marriage on the ground that one of the parties was under legal age, may be brought by the parent or guardian entitled to the custody of such minor, or by any person admitted by the court to prosecute as the friend of such minor; but in no case shall such marriage be annulled on the application of a party who was of legal age at the time it was contracted, nor when it shall appear that the parties, after they attained the legal age had for any time freely cohabited as man and wife.

 

§1315. A marriage may be declared null on the ground that one of the parties has an undivorced husband or wife living, on the application of either of the parties during the lifetime of the other, or on the application of such former husband or wife.

 

§1316. Every woman who shall be deceived into contracting an illegal marriage with a man having another wife living, under the belief that he was an unmarried man, shall be entitled to a just allowance for the support of herself and family out of his property, which she may obtain upon application to any judge of a court of record at chambers: provided, always, that such allow­ance shall not exceed one-third his real and personal estate.

 

§1317. The children of such illegal marriage shall be en­titled to succeed in the same manner as legitimate children, to all the real and personal estate of both parents in this Kingdom.

 

§1318. The marriage of an idiot or insane person may be an­nulled on the application of the sane party, or any relative of the idiot or lunatic, or on application of any person admitted by the court to prosecute as the next friend of the said idiot or lunatic, or upon the application of the lunatic himself after restoration to reason; but in such case, no sentence of nullity shall be pro­nounced if it shall appear that the parties freely cohabited as hus­band and wife, after the lunatic was restored to a sound mind.

 

§1319. Upon the annulment of a marriage on account of non­age, insanity, or idiocy of either party, the issue of the marriage shall be deemed to be in all respects the legitimate issue of the parent who, at the time of the marriage, was capable of contract­ing.

 

§1320. Upon the annulment of a marriage that is prohibited on account of consanguinity between the parties, (or for a failure on the part of the husband, being a foreigner, to comply with the requirements of the law validating marriage with the female sub­jects of this Kingdom,) the issue of the marriage shall be illegiti­mate.

 

§1321. A suit to annul the marriage on the ground of the physical incapacity of one of the parties at the time of marriage, shall only be maintained by the injured party, against the party whose incapacity is alleged; and shall in all eases be brought within two years from the solemnization of the marriage.

 

§1322. No sentence of nullity of marriage shall be pronounced solely on the declarations or confessions of the parties, but the court shall, in all cases, require other satisfactory evidence of the facts on which the allegation of nullity is founded.

 

RELATING TO DIVORCE.*

 

Section 1. Divorces from the bond of matrimony shall be Act granted for the causes hereinafter set forth, and no other.

     

First—For adultery in either party, or for willful and utter desertion for the term of three years, or when either party is sen­tenced to imprisonment for life, or for seven years or more, and no pardon granted to a p4rty so sentenced, after divorce for such a cause, shall restore such party to conjugal rights; and when it is shown to the satisfaction of the court that either party has contracted the disease known as Chinese leprosy, and is incapable of cure.

     

Second—For extreme cruelty, habitual intemperance, or when the husband being of sufficient ability to provide suitable main­tenance for his wife, neglects or refuses to do so. But if the party applying for a divorce, shall not insist upon a divorce from the bond of matrimony, a divorce only from bed and board shall be granted, and the relations of the parties after such divorce shall be regulated by existing laws concerning separation.

     

Section 2. Exclusive jurisdiction in matters of divorce is con­ferred upon the circuit courts of the judicial circuit, in which the parties shall have last lived together as husband and wife; pro­vided that if they shall have last lived together as husband and wife in Oahu, the Supreme Court shall exercise jurisdiction. But all such cases shall be regularly entered on the calendar like other civil actions. No such case shall be heard at chambers, and no consent of parties shall warrant the courts in hearing divorce causes, or any matter connected therewith, except during regular session in the public court rooms. No divorce shall be granted for any cause, if the parties have not lived together as husband and wife within this Kingdom.

 

Libels for divorce shall be heard by a justice of the Supreme Court, presiding at a regular term of the Supreme or Circuit Court.

 

*This Act was repelled by Ch. LI. of 1874, but the repealing statute was held unconstitutional and void in Marchant v. Marchant, 3d H.R., p. 661, and this statute subsequently amended.

     

Section 3. All proceedings for divorce shall be commenced by libel, to be signed by the libellant, and sworn to, and the same shall set forth the marriage of the parties and the cause of divorce with sufficient particularity to constitute a case for judicial action. Such libels shall be filed in the office of the clerk of the proper court, and upon filing thereof, a writ of summons, with a certified copy of the libel attached, shall be issued returnable at the term of the court next after the day of filing the same. Such process shall be served by delivering the same personally to the respon­dent; and the court shall not entertain jurisdiction of such libel, unless by consent of the respondent, unless such personal service shall have been completed more than twenty days bef6re the first day of the term, to which the same shall be returnable, except as provided in the following section.

 

Section 4. If personal service shall not have been made as aforesaid, and it appears by return of the officer, that after diligent search the respondent cannot be found, the court, at the return term, shall order that the case stand continued until the next succeeding term, and that in the meanwhile an attested copy of the summons shall be printed in the Government Gazette and Ke Au Okoa at least six times, the last publication to be at least twenty days before the next term of the court, and the court shall direct such further and other notice to be given as the circumstances of the case may require.

 

Section 5. Upon the hearing of every libel for divorce, the court shall require exact legal proof upon every point, notwith­standing the consent of parties; and the admission of the respon­dent shall not be competent evidence, except to prove the original marriage.

 

Section 6. No divorce for the cause of adultery shall be granted, First—Where there is reasonable cause to believe that the offense has been committed by the procurement or with the connivance of the libellant. Second—Where the offense charged has been forgiven by the injured party. Such forgiveness may be shown by express proof, or by the voluntary cohabitation of the parties, with knowledge of the fact. Third—Where the libel was not filed within one year after discovery by the libellant of the offense charged. Fourth—Where there is reasonable cause to be­lieve that the libellant has been guilty of any act which would entitle the defendant, if innocent to a divorce.

     

The fourth ground for refusing a decree above mentioned, shall Amendment not be applied to an application for a divorce for any other cause than that of adultery, nor shall any allegation with reference to such cause be necessary in the libel.

 

Section 7. If there be any reason to suspect collusion, or that important testimony can be procured which has not been produced, it shall be the duty of the court to continue the cause till the next term, and so from term to term, while such reason for suspicion continues, and the Attorney-General and parties not of record, shall be heard, to establish the fact of collusion or the existence of testimony not produced.

 

Section 8. If, after a full hearing, the court shall be of opinion that a divorce ought to be granted, either from the bonds of matrimony or from bed and board, an absolute decree shall be entered.

 

Section 9. Repealed by Act of 1878, Chapter XXVI., Sec. 5.

 

Section 10. Whenever it shall be made to appear to the Court, after the filing of any libel, that the wife is under restraint or in destitute circumstances, the court may pass such order to secure her personal liberty and reasonable support, pending the libel, as law and justice may require, and may enforce such orders by summary process. The court may also compel the husband to advance reasonable amounts for the compensation of witnesses and other reasonable expenses of trial to be incurred by the wife.

 

RELATING TO INTERLOCUTORY ORDERS IN DIVORCE CASES.

 

The several Justices of the Supreme Court, at Chambers, after the filing of any libel for divorce, may pass the orders authorized by the tenth section of Chapter XVI of the Act of 1870, entitled “An Act relating to Divorce,” and such orders may be revised and amended from time to time by said Court, or any Justice thereof, or by any circuit court having jurisdiction of the caused

 

Section 11. Any party aggrieved by any order or decision of the circuit court, may except thereto, and his exceptions shall be duly noted, and certified to the Supreme Court, and no order or decree for a divorce shall be made absolute, until such exceptions shall have been disposed of. Said exceptions shall be argued and determined in the Supreme Court, sitting in banco, and if the court in banco shall be of opinion that the order or decision ex­cepted to in said circuit court was erroneous, they shall so certify, and thereupon the case shall be heard anew.

 

Section 12. Sections 1323, 1324 and 1325, of the Civil Code, together with all Acts and parts of Acts authorizing divorce causes to be heard at chambers, and all Acts and parts of Acts incon­sistent herewith are repealed.

 

§1326. A divorce for the cause of adultery committed by the husband shall not affect the legitimacy of the issue of the mar­riage.

 

§1327. A divorce for the cause of adultery committed by the wife, shall not affect the legitimacy of the issue of the marriage, but the legitimacy of such children, if questioned, shall be tried and determined by the court. In every such case the legitimacy of such children shall be presumed, until the contrary be shown.

 

§1328. Upon granting a divorce for the adultery or other of­fense amounting thereto, of the husband, the court may make such further decree or order against the defendant, compelling him to provide for the maintenance of the children of the mar­riage, and to provide such suitable allowance for the wife, for her support, as the court shall deem just and reasonable, having regard to the ability of the husband, the character and situation of the parties, and all other circumstances of the case.

 

§1329. Upon annulling a marriage, or decreeing a divorce, the court may make such further decree as it shall deem ex­pedient, concerning the care, custody, education and maintenance of the minor children of the parties, and determine with which of the parents the children or any of them shall remain; and the court may from time to time afterwards, on the petition of either of the parties, revise and alter such decree concerning the chil­dren, and make a new decree concerning the same, as the circum­stances of the parents and the benefit of the children may re­quire.

 

§1330. When a divorce is decreed for the adultery, or other offense amounting thereto, of the husband, and the wife shall be the owner of real estate, or have in her possession any personal property given to her by her husband, acquired by her own in­dustry, given her by devise or otherwise, or to which she may be entitled by the decease of any relative, all such real and personal property shall be her sole and absolute property.

 

§1331. When a divorce is decreed for the adultery or other offense amounting thereto, of the wife, the husband shall hold her personal estate for ever, and he shall hold her real estate so long as they shall live; and if he shall survive her, and there shall have been issue of the marriage born alive, he shall hold her real estate for the term of his own life, as a tenant by the curtesy: provided that the court may make such reasonable provision for the divorced wife out of any real estate that may have belonged to her, as it may deem proper.

 

§1332. A wife divorced for adultery or any other offense amounting thereto, shall not be entitled to dower in her husband’s real estate, or any part thereof, nor to any share of his personal estate.

 

§1333. Whenever the court shall make an order or decree requiring a husband to provide for the care, maintenance, and education of his children, or for an allowance to his wife, the court may require him to give reasonable security for such maintenance and allowance; and upon neglect or refusal to give such security, or upon default of him and his surety to pro­vide such maintenance and allowance, the court may sequester his personal estate, and the rents and profits of his real estate, and may appoint a receiver thereof, and cause such personal estate and the rents and profits of such real estate to be applied towards such maintenance and allowance, as to the court shall from time to time seem just and reasonable.

 

TO PERMIT DIVORCED PERSONS TO MARRY AGAIN.*

 

Section 1. That Section 1334 of the Civil Code be, and the same is, hereby amended to read as follows, viz:

 

§1334. Whenever a marriage shall be dissolved for adul­tery or other offense amounting thereto, either party to the divorce may marry again at any time.

 

Section 2. Upon the application of any divorced person to any officer authorized to grant marriage licenses for a license to marry again, such officer shall, before granting such person a license to marry, require to be produced before him the original certificate of such person’s divorce, or a duly certified copy there­of, under the seal of the court in which the divorce was decreed.

 

§1335. If any persons, after being divorced for any cause, whatever, shall cohabit as husband and wife, they shall be liable to all the penalties provided by the laws against adultery.

 

*This Act repealed 1870, Chapter X, and the section re-enacted 1876, Chapter XLVIII.

 

SEPARATION.

 

§1336.  A separation from bed and board forever, or for a limited time, may be decreed by the Supreme Court, any Circuit court, or any Justice of the Supreme Court at Chambers, for the following causes:

 

1.  For excessive and habitual ill-treatment of the one party by the other.

 

2.   For habitual drunkenness of either party.

 

3.   For the refusal or neglect of the husband to provide his wife with the necessaries of life.

 

§1337. In any suit brought for a separation, the defendant shall be permitted to prove, in his justification, the ill-conduct of the complainant, and on establishing such defense, to the satisfac­tion of the court, the suit may be dismissed.

 

§1338. Upon, decreeing a separation, the court may make such further decree for the support and maintenance of the wife and her children, by the husband, or out of his property, as may appear just and proper.

 

§1339. Whenever a decree of separation is granted, the de­cree shall have the effect, during such separation, to reinstate the wife, whether the wrongdoer or not, in the right to sue or be sued, to alienate and convey property, to make contracts, and to do all other acts as if she were a feme sole.

 

§1340. Where a decree for a separation forever, or for a limited period, shall have been pronounced, it may be revoked at any time thereafter, under such regulations and restrictions as the court may impose, upon the joint application of the parties, and upon their producing satisfactory evidence of their reconciliation.

 

§1341. Upon the hearing of any petition for a divorce, or separation, the court shall have power, in its discretion, to ex­amine either or both of the parties, upon oath, in order to prevent collusion.

 

 

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