Swartz v. Swartz

147 A. 330, 105 N.J. Eq. 168, 1929 N.J. Ch. LEXIS 59

• Court: New Jersey Court of Chancery
• Decided: September 27, 1929
• Status: Published

Opinion

This is an independent suit for divorce. The petitioner alleges refusal of sexual intercourse for a period of over two years.

The special master to whom it was referred reported that the petition should be dismissed, as he was unable to find "the intent to desert was present in the mind of the defendant prior to October 15th, 1928." He stated, "she may have left the bed of the petitioner prior to that date, but that does not necessarily mean there was an intention to desert."

Unjustified refusal of sexual intercourse persisted in willfully, obstinately and continually for a period of two years is a ground for divorce for the cause of desertion. Haskell v.Haskell, 99 N.J. Eq. 399.

The surrounding circumstances, adequately established, may be of a nature to fully supply the office of corroboration which the law requires in matrimonial cases. Robinson v. Robinson,83 N.J. Eq. 150; affirmed, 84 N.J. Eq. 201.

While the evidence is not convincing that the wife intended to desert her husband, at the time of the alleged refusal, it is convincing that she persisted in such unjustified refusal of sexual intercourse, willfully, obstinately and continually for the statutory period.

The exceptions will be sustained, and a decree nisi advised.