Cass v. Cass

New Jersey Court of Chancery

Cass v. Cass

31 N.J. Eq. 626

DecidedOctober 15, 1879

StatusPublished

This text of 31 N.J. Eq. 626 (Cass v. Cass) is published on Counsel Stack Legal Research, covering New Jersey Court of Chancery primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Cass v. Cass, 31 N.J. Eq. 626 (N.J. Ct. App. 1879).

Pincite

Opinion

The Vice-Chancellor.

This is a suit for divorce a vinculo, by a husband against his wife. The complainant has proceeded by bill. His bill alleges that the defendant deserted him July 1st, 1871, since which date she has persistently remained absent from his residence, and hath and doth desert her child.

The cause of divorce here specified, is unknown to the laws of this state. Simply living separate, is not a ground for divorce. Mere absence is not desertion. Rogers v. Rogers, 3 C. E. Gr. ; Test v. Test, 4 C. E. Gr. 342. To constitute desertion by a wife, she must forsake her husband in violation of her duty to him, and against his will, and willfully and obstinately continue in a state of separation from him for a continuous period of three years. But [627]*627the absence here charged, is merely from the husband’s residence, and not from him. The parties may have constantly cohabited. Desertion is charged as happening on a certain date, but then the charge dwindles to a mere accusation of absence from the husband’s residence. This is not enough. Absence is not the equivalent of desertion, and desertion itself is no ground of divorce, but may become so by willful and obstinate continuance for the statutory period.

Eb ground of divorce is alleged in the bill, and it must, therefore, be dismissed.

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The Vice-Chancellor.

This is a suit for divorce a vinculo, by a husband against his wife. The complainant has proceeded by bill. His bill alleges that the defendant deserted him July 1st, 1871, since which date she has persistently remained absent from his residence, and hath and doth desert her child.

The cause of divorce here specified, is unknown to the laws of this state. Simply living separate, is not a ground for divorce. Mere absence is not desertion. Rogers v. Rogers, 3 C. E. Gr. ; Test v. Test, 4 C. E. Gr. 342. To constitute desertion by a wife, she must forsake her husband in violation of her duty to him, and against his will, and willfully and obstinately continue in a state of separation from him for a continuous period of three years. But [627]*627the absence here charged, is merely from the husband’s residence, and not from him. The parties may have constantly cohabited. Desertion is charged as happening on a certain date, but then the charge dwindles to a mere accusation of absence from the husband’s residence. This is not enough. Absence is not the equivalent of desertion, and desertion itself is no ground of divorce, but may become so by willful and obstinate continuance for the statutory period.

Eb ground of divorce is alleged in the bill, and it must, therefore, be dismissed.

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Bluebook (online)

31 N.J. Eq. 626, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cass-v-cass-njch-1879.