Clapp v. Clapp

97 Mass. 531

• Court: Massachusetts Supreme Judicial Court
• Decided: October 15, 1867
• Status: Published

Opinion

Chapman, J.

The libellant seeks to obtain a divorce from his wife on the ground that she deserted him on the 5th of April, 1860, and continued the desertion for five years and more. She proves in defence, that before the lapse of the five years, namely, on the 25th of April, 1864, the libellant married another woman, and occupied the same house and bed with her for several days. This is sufficient evidence to prove adultery on his part.

1. He replies to this evidence, that his adultery is no defence, because her offence is of a different character; and he contends that she cannot recriminate his delictum unless it is an offence of the same kind, and not of a different character. Some authorities are cited to sustain this point. But the offence of each of them was of such a character as would by our statutes entitle the other party, if not in fault, to a divorce from the bonds of matrimony. In that respect, the offences were alike. The court had occasion to consider the validity of such a defence in Hall v. Hall, 4 Allen, 39. It was there held that where a wife has deserted a husband for a period of five years, so that he would be entitled to a divorce against her on that ground, she cannot maintain a libel against him on the ground of his adultery after the lapse of the five years; but she may maintain it if be has committed adultery within the five years and before her offence is complete. This doctrine stands on the obviously just ground stated in Hope v. Hope, 1 Swab. & Trist 107, where it is said that “a party guilty of a breach of the marriage vow should not have the assistance of the court to enforce any marital right.” At the time when the libellant committed his offence, a locus penitentice remained to the wife, and she might have returned to him. His offence justified her in never returning.

2. He further replies to this defence by offering his own testimony that, though he married another woman, he did it under a mistake as to his legal rights, and, though he occupied the same bed with her for a few nights, he did not commit adultery. His mistake of the law cannot avail him ; and we do not think he has a right to require the court to enter into an investigation of such particulars of his conduct as he proposes. At best, it would be an exposure of himself and his proceedings which decency and good morals would require the court to suppress as far as possible; and we do not think he has a right to inflict it upon anybody for the sake of enabling him to obtain a divorce from his wife. Libel dismissed.