Jett, William S., Jr.

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University of Kentucky

Kentucky Law JournalVolume 24 | Issue 4 Article 91936Domestic Relations: Adultery as a Ground forDivorceWilliam S. Jett Jr.University of KentuckyFollow this and additional works at: https://uknowledge.uky.edu/kljPart of the Family Law CommonsRight click to open a feedback form in a new tab to let us know how this document benefitsyou.This Note is brought to you for free and open access by the Law Journals at UKnowledge. It has been accepted for inclusion in Kentucky Law Journal byan authorized editor of UKnowledge. For more information, please contact UKnowledge@lsv.uky.edu.Recommended CitationJett, William S. Jr. (1936) "Domestic Relations: Adultery as a Ground for Divorce," Kentucky Law Journal: Vol. 24 : Iss. 4 , Article 9.Available at: https://uknowledge.uky.edu/klj/vol24/iss4/9STUDENT NoTs 499compensation with optional compensation as the only alternative.Optional compensation, in turn, discriminates outrageously againstmotorists as a class, since they pay compensation when not at fault,and damages when they are at fault, with no offsetting benefits. Theargument is sound but the premise is wrong. A distinction is to benoted between the kind of statute this contention is based on, andthe kind advocated by the majority of those who favor the plan. Inthe former the taking out of insurance by every motorist is manda-tory; while in the latter it is conditioned upon violation of somemotor car law, or upon being involved in an accident as provided bythe particular statute. No person is compelled to furnish security ofany kind until he has violated some provision of the statute. Thestatute does not compel the motorist class as a whole to furnish se-curity, but only those individuals who are violators of motor car lawsand are reckless in their driving. It is submitted that this is in noway unjust or discriminatory.Such a statute would act as a strong preventive of future acci-dents. The average wage earning owner who is unable to afford insurancewould guard against careless or reckless driving, when he knows thatonce he has been in an accident or has violated some motor car law(as provided by the particular statute) he will be compelled to furnishsecurity or else be barred from the roads. Certainly even a slight re-duction in the number of accidents causing loss of life and limb justi-fies the increased burden placed upon the type of motorist the statutewould require to furnish security.In summary there are two reasons for having such an act: (1)protection of accident victims, (2) prevention of future accidents. Dothese two interests outweigh the slight increase in the burden placedupon the motorist? The answer to this question must be in the affirm-ative. In conclusion it is proposed that Kentucky adopt a statutesimilar to that of Connecticut. There is no doubt as to the great needwhen it is recalled that in Kentucky in 1923 there were only 166 autofatalities while in 1930 the number jumped to 514,-an increase ofover 200% in seven years. Certainly the present system of regulatingthe matter in this State is antique in its methods and wholly inade-quate to cope with the problem. EMERSON SALISBURY.DOMESTIC RELATIONS: ADULTERY AS A GROUND FORDIVORCE.A husband sued for divorce on the grounds of adultery. It ap-peared that the wife had been guilty of adultery, but such had beencondoned by the husband by subsequent cohabitation. Thereafter sheagain committed adultery. The court held that the second offenserevived the original cause of action, and that the husband was en-titled to a divorce.115World's Almanac (1935 ed.) p. 858.'Wagner v. Wagner, 130 Md. 346, 100 AtI. 364 (1917).KENTUCKY LAW JOURmALAdultery is the voluntary sexual intercourse of a Married personwith a person other than the offender's husband or wife2 It was not,by itself, indictable at common law,3 but was left to the ecclesiasticalcourts for punishment. However, even in the English ecclesiasticalcourts adultery was only a ground for divorce a mensa et thoro.' Atthe present time in this country all forty-seven states which permit anabsolute divorce will grant it for adultery;5 as do Alaska, the Districtof Columbia, and Hawaii.6 An absolute divorce is not permitted inSouth Carolina.7As to the number of acts of guilt necessary by either the husbandor -the wife in order to constitute adultery, the general rule is thatone is sufficient.8According to the general interpretation of the present law it isnot necessary to prove the direct fact of adultery, for, being committedin secrecy, it is seldom susceptible of proof except by circumstances,which however are sufficient when they would lead the guarded discre-tion of a reasonable and just man to a conclusion of guilt.' It isfrequently said by the courts that the circumstantial evidence must beof a "clear and positive nature." 0 And'that a clear preponderance ofthe evidence is sufficient.In all cases there is a presumption of innocence which must beovercome before adultery is proved."In order to prove adultery by circumstantial evidence the con-currence of both the disposition and opportunity must be shownm"The general rule in the United States is that a divorce for adulterywill not be granted on the uncorroborated admissions of the defend-ant." There are statutes in many states requiring the corroborationof the complainant's testimony.u4If the party committing the adultery was insane at the time ofcommitting the act it is no ground for a divorce.6 Adultery com-mitted while intoxicated is, however, a ground for a divorce. 6As to what constitutes a condonation of the offense of adulterythe authorities are to a degree in conflict. The general rule is that2Bouvier, Law Dictionary.3Wharton, Criminal Law, Sec. 1717.4Madden on Persons and Domestic Relations (1931), 264-267.5 Vernier, Am. Family Laws (1932), Vol. 11, p. 18.S Supra, Note 4.1 upra, Note 4.8 Supra, Note 4.9 Supra, Note 3.1 OMarshall v. Marshall, 55 App. D. C. 173, 3 F. (2d) 344 (1925);Brown v. Brown, 27 Idaho 205 (1915); Miller v. Miller, 94 W. Va. 177,118 S. E. 137 (1923)."Supra, Note 3.2Supra, Note 3.1" Supra, Note 3.4 Local statutes should be consulted.,6Supra, Note 3." Supra, Note 3.STUDENT NoTEsif either the husband or the wife condone the infidelity of the othersuch infidelity cannot be set up as a ground for divorce, 7 for "he whoseeks equity must do equity." The weight of authority is that a con-tinuance of cohabitation after knowledge of the commission of adulteryis a condonation of that offense.1 Some American courts use the termcohabitation as including sexual intercourse;2 while the English courtsrecognize the fact that there can be cohabitation without sexual inter-course.0 It is submitted that the English rule is the better rule.If an act of adultery is condoned, and there is a renewal of themarital status, and thereafter the offending spouse again commits anact of adultery, it amounts to a revival of the original cause, and theInjured party is entitled to a divorce on the grounds of adultery." It issubmitted that "condonation" is but a conditional forgiveness basedupon the future good behavior of the offending spouse.The doctrine of connivance, which is based on the maxim volenti-non fit injuria, is a good defense in a divorce action." Merely refrain-ing from interfering with the commission of adultery by a suspectedspouse is not connivance."Under the Kentucky statutes, section 2117, a single act of adulteryby the husband is not sufficient to entitle the wife to a divorce, sincethe statute declares there shall be a living in adultery. The casesbear out the statute in this respect.4 The wife must prove the husbandis living in adultery," but there need not be a living together con-tinuously or for a given time.2 Under the same statute a single actof adultery by the wife is sufficient to entitle the husband to adivorce." The reason for this distinction between husband and wifehas been thus stated: "The offense is a social as well as a moral one,and it is agreed by the civilians to be less grievous to the sufferer,though not less immoral, when it is committed by the husband, whosetransgression cannot impose a suppositious offspring on the wife,than it is when committed by the wife, whose transgression may im-pose such an offspring on the husband; and hence it probably was,though the kindred fault of barrenness was also cause of divorce, thatthe right of repudiation was confined in the primitive ages to thehusband; for there is no instance of an exercise of it by a wife tillthe time of Cicero or shortly before it. '""1'69 U. Pa. Law Rev. 76 (1920-21)."Supra, Note 17."Burns v. Burns, 60 Ind. 259 (1877).0 Dictum in Keats v. Keats, 1 S. W. & Tr. 334 (1858)."Supra, Note 1."2 Bishop, Marriage and Divorce, 6th Ed., Sec. 5, p. 3."Wilson v. Wilson, 154 Mass. 194, 28 N. E. 167 (1891); Engle v.Engle, 153 Iowa 285, 133 N. W. 654 (1911)."Williams v. Williams, 136 Ky. 71, 123 S. W. 337 (1909); Baker v.Baker, 136 Ky. 617, 124 S. W. 866 (1910)." Booth v. Booth, 12 Ky. L. Rep. 988 (1891).'Baker v. Baker, supra, Note 24."Kentucky Statutes (1930), Section 2117.Cooper's Notes to Justinian, Lib. 1, Tit. 9, Section 1, p. 435.RmNTucKy LAW JouExALIn this state, to entitle a wife to a divorce on the grounds of herhusband's adultery, it is not necessary to prove him guilty beyond areasonable doubt, but only to establish his adulterous relations by theweight of the evidence and to the satisfaction of the chancellor.:*This distinction made by the Kentucky statutes between husbandand wife as to the number of acts of guilt necessary to constituteadultery is without foundation. The modern tendency of the law isto treat the husband and wife as if they stood on equal footing. Nolonger is it the policy of the law to treat the wife as if she were apart of the personal property of the husband. She is entitled to thesame degree of conjugal respect that he is. The law should not berelaxed in favor of the wife, but made stricter in regard to the husbandso as to hold both to the same standard of conjugal loyalty to eachother and require both to obey God's commandment.Surely some future general assembly will see the light and abolishthis unjust discrimination, thus following the example of forty-twoother states in dealing impartially with those who plight their mutualfaith at the altar.WnIAM S. JETT, Js.GIFTS: RECOVERY OF ENGAGEMENT RING ON BREAKING OFENGAGEMENT TO MARRY.M gave W an engagement ring in consideration of her promise tomarry him; at the same time each agreed and promised to marry theother. Approximately two years later M informed W of his unwilling-ness to perform his part of the contract and refused to marry her.A few days later while M and W were together, W took the ringfrom her finger and M took it from her hand and put it in his pocket.W demanded that the ring be returned to her possession, but M re-fused. W sued to recover the ring, if M still had it, or, if not, itsvalue. Held, that the plaintiff was the owner of the ring and wasentitled to it, or its value if the defendant did not have it.'After a consideration of the problem as raised and decided invarious cases the court concluded that where the donee breaches thecontract, the donor has a right to recover any property or moneywhich the donee received from the donor "in consideration of themarriage contract." The court went on to say that although themarriage contract may be supported by the promise of one to marrythe other, i. e., the mutual promise of the parties, yet if the partieschoose to promise or pay an additional consideration they will bebound thereby in the same manner as if it had been an ordinary com-mercial contract, for in modern ages the ring has become a part ofthe real consideration of the contract and can no longer be considereda mere custom or symbol. The court believed that the ring could belikened unto purchase money, or "earnest" money in a commercial"0 Supra, Note 24.'Schultz v. Duitz, 253 Ky. 135, 69 S. W. (2d) 27, 92 A. L. R. 600(1934).

Domestic Relations: Adultery as a Ground for Divorce

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Domestic Relations: Adultery as a Ground for Divorce

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