Weston v. Weston

9 N.E. 557, 143 Mass. 274, 1887 Mass. LEXIS 281

• Court: Massachusetts Supreme Judicial Court
• Decided: January 6, 1887
• Status: Published

Opinion

Holmes, J.

It was decided in Ross v. Ross, 103 Mass. 575, that the prohibition in the Gen. Sts. c. 107, § 12, (Pub. Sts. c. 146, § 4,) against granting a divorce if the parties have never lived together as husband and wife in the Commonwealth, is not avoided by a transitory cohabitation here, but requires a domicil in the State. In Eaton v. Eaton, 122 Mass. 276, which perhaps can be upheld on its special facts, domicil without cohabitation was thought to satisfy the condition, and a divorce was granted. In that case, however, the court appears to have overlooked the earlier decision of Schrow v. Schrow, 103 Mass. 574, where the parties seem to have been domiciled in Massachusetts, but it was held that their having lived in the State separately was not enough. We cannot escape from the literal meaning of the statute, which is not satisfied with residence merely, but requires the parties to have “ lived together as husband and wife.” If the result is an unintended anomaly, the remedy is in the Legislature. After a residence here for the statutory time, the libellant may be entitled to his divorce under the law as it stands.

Libel dismissed.