Delaware General Assembly

CHAPTER 221.

OF MARRIAGE AND DIVORCE.

AN ACT Regulating Annulment of Marriage and Divorce.

Be it enacted by the Senate and House of Representatives of the State of Delaware in General Assembly met:

Section 1. That a marriage may be annulled for any of the following causes existing at the time of the marriage:

(a) Incurable physical impotency, or incapacity for copulation, at the suit of either party: Provided, That the party making the application was ignorant of such impotency or incapacity at the time of the marriage.

(b) Consanguinity or affinity according to the table of 20 degrees established by law, at the suit of either party; but when any such marriage shall not have been annulled during the lifetime of the parties the validity thereof shall not be inquired into after the death of either party.

(c) When such marriage was contracted while either of the parties thereto had a husband or wife living, at the suit of either party.

(d) Fraud, force or coercion, at the suit of the innocent and injured party, unless the marriage has been confirmed by the acts of the injured party.

(e) Insanity of either party, at the suit of the other, or at the suit of the committee of the lunatic, or of the lunatic on regaining reason, unless such lunatic, after regaining reason, has confirmed the marriage: Provided, That where the party compos mentis is the applicant, such party shall have been ignorant of the other's insanity at the time of the marriage, and shall not have confirmed it subsequent to the lunatic's regaining reason.

(f) At the suit of the wife when she was under the age of sixteen years at the time of the marriage, unless such marriage be confirmed by her after arriving at such age.

(g) At the suit of the husband when he was under the age of eighteen at the time of the marriage, unless such marriage be confirmed by him after arriving at such age.

Section 2. Divorce shall be of two kinds:

(a) Divorce from the bonds of matrimony, or divorce a vinculo matrimonii.

(b) Divorce from bed and board, or divorce a mensa et thoro.

Section 3. The causes for divorce from the bonds of matrimony shall be:

(a) Adultery.

(b) Bigamy, at the suit of the innocent and injured party to the first marriage.

(c) Conviction and sentence for crime by a competent Court having jurisdiction, followed by a continuous imprisonment for at least two years, or in the case of indeterminate sentence, for at least one year: Provided, That such conviction has been the result of trial in some one of the states of the United States, or in a Federal Court, or in some one of the territories, possessions or courts subject to the jurisdiction of the United States, or in some foreign country granting a trial by jury, followed by an equally long term of imprisonment.

(d) Extreme cruelty, on the part of either husband or wife, such as to endanger the life or health of the other party or to render cohabitation unsafe.

(e) Willful desertion for two years.

(f) Habitual drunkenness for two years.

Section 4. The causes for divorce from bed and board causes shall be:

(a) Adultery

(b) Bigamy, at the suit of the innocent and injured party to the first marriage.

(c) Conviction and sentence for crime by a competent court having jurisdiction, followed by a continuous imprisonment for at least two years, or in the case of indeterminate sentence, for at least one year: Provided, That such conviction has been the result of trial in some one of the states of the United States, or in a Federal Court, or in some one of the territories, possessions or courts subject to the jurisdiction of the United States, or in some foreign country granting a trial by jury, followed by an equally long term of imprisonment.

(d) Extreme cruelty, on the part of either husband or wife, such as to endanger the life or health of the other party or to render cohabitation unsafe.

(e) Willful desertion for two years.

(f) Habitual drunkenness for two years.

(g) Hopeless insanity of the husband.

Section 5. No decree for divorce shall be granted if it appears to the satisfaction of the court that the suit has been brought by collusion, or that the plaintiff has procured or connived at the offense charged, or has condoned it, or has been guilty of adultery not condoned.

Section 6. The Superior Court of this State shall have and entertain jurisdiction of all actions for annulment of marriage, or for divorce.

Section 7. The proceedings for divorce, or to have a marriage annulled, shall be by petition filed with the Prothonotary of the Superior Court in the county of the petitioner's residence, stating the true cause of the complaint and verified by the affidavit of the petitioner that the facts stated are true and that the complaint is not made out of levity or by collusion, whereupon a summons shall issue, for the defendant's appearance and upon proof of the service of such summons more than twenty days before the time of its return or upon proof of substituted service by publication as hereinafter provided, the cause shall proceed to trial, and shall be heard, tried and determined by the court without the intervention of a jury, and the court shall pass judgment thereon as to the court shall seem meet and proper.

Section 8. For purposes of annulment of marriage, jurisdiction may be acquired by personal service upon the defendant within this State when either party is a bona fide resident of this State at the time of the commencement of the action.

Section 9. For purposes of divorce, either absolute or from bed and board, jurisdiction may be acquired by personal service upon the defendant within this State, under the following conditions:

(a) When, at the time the cause of action arose, either party was a bona fide resident of this State, and has continued so to be down to the time of the commencement of the action; except that no action for absolute divorce shall be commenced for any cause other than adultery or bigamy, unless one of the parties has been for the two years next preceding the commencement of the action a bona fide resident of this State.

(b) When, since the cause of action arose, either party has become, and for at least two years next preceding the commencement of the action has continued to be, a bona fide resident of this State: Provided, The cause of action alleged was recognized in the jurisdiction in which such party resided at the time the cause of action arose, as a ground for the same relief asked for in the action in this State.

Section 10. When the defendant cannot be served personally within this State, and when at the time of the commencement of the action the plaintiff is a bona fide resident of this State, an alias summons shall issue to the second term next after issuing the original writ, which the sheriff shall publish for one month in such newspapers of the county, one or more, as he may judge best for giving the defendant notice; and the case may then proceed to trial with or without the defendant's appearance, subject to the provisions in the next succeeding Section.

Section 11. When the defendant cannot be served personally within this State, and when at the time of the commencement of the action the plaintiff is a bona fide resident of this State, jurisdiction for the purpose of divorce, whether absolute or from bed and board, may be acquired by publication as hereinbefore provided, to be followed where practicable by service upon or notice to the defendant without this State, under the following conditions:

(a) When, at the time the cause of action arose, the plaintiff was a bona fide resident of this State, and has continued so to be down to the time of the commencement of the action; except that no action for absolute divorce shall be commenced for any cause other than adultery or bigamy, unless the plaintiff has been for the two years next preceding the commencement of the action a bona fide resident of this State.

(b) When, since the cause of action arose, the plaintiff has become; and for at least two years next preceding the commencement of the action has continued to be, a bona fide resident of this State: Provided, The cause of action alleged was recognized in the jurisdiction in which the plaintiff resided at the time the cause of action arose, as a ground for the same relief asked for in the action in this State.

Section 12. The Court may grant alimony to the wife for her sustenance pending her petition for divorce, and may order and direct the husband to pay such sum as may be deemed necessary to defray the expenses in conducting her case, whether the application be on the part of either the wife or husband, and shall protect her from personal restraint.

Section 13. On a petition for divorce for the cause of adultery, if the defendant shall recriminate and prove that the complainant has been guilty of the like crime, or has admitted the defendant into conjugal society, or embraces, after knowledge of the adultery; or that the complainant, if a husband, allowed of his wife's prostitution, the petition shall be dismissed.

Section 14. When the cause of divorce is the adultery of the wife, she shall forfeit any estate, charge, or benefit, settled upon her, or in trust for her use, in lieu of dower.

Section 15. When a divorce shall be decreed for the aggression of the husband, the complainant shall be restored to all here real estate, and be allowed, out of her husband's real and personal estate, such share as the court shall think reasonable; but if the divorce be for the wife's aggression, the court may restore the whole or a part of her real estate, and also such share of her husband's personal property as may seem reasonable.

Section 16. Any such allowance, or division of the property, may be by a gross sum, or an annual allowance, or an assignment by metes and *bonds; and the court may appoint commissioners to execute any order in the premises, and may issue writs of possession, as in case of land sold on execution process. (*So Enrolled.)

Section 17. Any one charged as a particeps criminis shall be made a party, upon his or her application to the court, subject to such terms and conditions as the court may prescribe.

Section 18. All hearings and trials shall be had before the court, and not before a master, referee, or any other delegated representative, and shall in all cases be public.

Section 19. In all uncontested cases, and in any other case where the court may deem it necessary or proper, a disinterested attorney may be assigned by the court actively to defend the case.

Section 20. No decree for annulment of marriage, or for divorce, shall be granted unless the cause is shown by affirmative proof aside from any admissions on the part of the defendant.

Section 21. No record or evidence in any case shall be impounded, or access thereto refused.

Section 22. If after the hearing of any cause, the court shall be of opinion that the plaintiff is entitled to a decree annulling the marriage, or to a decree for divorce from the bonds of matrimony, a decree nisi shall be entered.

Section 23. A decree nisi shall become absolute after the expiration of one year from the entry thereof, unless appealed from or proceedings for review are pending, or the court before the expiration of said period for sufficient cause, upon its own motion, or upon the application of any party, whether interested or not, otherwise orders; and at the expiration of one year such final and absolute decree shall then be entered upon application to the court by the plaintiff, unless prior to that time cause be shown to the contrary.

Section 24. In all cases of divorce from bed and board for any of the causes specified in Section 4 of this Act, the court may decree a separation forever thereafter, or for a limited time, as shall seem just and reasonable, with a provision that in case of a reconciliation at any time thereafter, the parties may apply for a revocation or suspension of the decree; and upon such application the court shall make such order as may be just and reasonable.

Section 25. The court upon granting a divorce from the bonds of matrimony to a woman may allow her to resume her maiden name, or the name of a former deceased husband.

Section 26. In an action brought by the wife, the legitimacy of any child born or begotten before the commencement of the action shall not be affected.

Section 27. In an action brought by the husband, the legitimacy of any child born or begotten before the commission of the offense charged shall not be affected; but the legitimacy of any other child of the wife may be determined as one of the issues of the action. All children begotten before the commencement of the action shall be presumed to be legitimate.

Section 28. Full faith and credit shall be given in all the courts of this State to a decree of annulment of marriage or

divorce by a court of competent jurisdiction in another State, territory, or possession of the United States when the jurisdiction of such court was obtained in the manner and in substantial conformity with the conditions prescribed in Sections 8, 9, 10 and 11 of this Act. Nothing herein contained shall be construed to limit the power of any court to give such effect to a decree of annulment or divorce by a court of a foreign country as may be justified by the rules of international comity; Provided, that if any inhabitant of this State shall go into another state, territory or country in order to obtain a decree of divorce for a cause which occurred while the parties resided in this State, or for a cause which is not ground for divorce under the laws of this State, a decree so obtained shall be of no force or effect in this State.

Section 29. That this Act shall not affect any suit for divorce or for annulment of marriage now pending in any of the Courts of this State but that any such suit shall proceed to a final determination under the law as it existed prior to the passage and approval of this Act.

Section 30. That Chapter 75 of the Revised Code of the State of Delaware as amended in 1893; Chapter 290 of Volume 21 of the Laws of Delaware, and Chapter 291 of Volume 21 of the Laws of Delaware, are hereby repealed;

and all other Acts or parts of Acts inconsistent with the provision of this Act are hereby repealed.

Approved March 29, A. D. 1907.