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Grounds For Divorce: Adultery - Defenses To Adultery

Insanity

In an action based upon adultery, proof that a spouse was mentally incapable at that time of understanding the nature, quality, effect, and consequences of the adulterous act, is a complete defense to an action for divorce. Laudo v. Laudo (1919) 188 App Div 699, 177 NYS 396; Horn v Horn (1911) 142 App Div 848, 127 NYS 448; Rathbun v. Rathbun, 40 How Pr 328.

Pajak v. Pajak (1981, 4th Dept) 85 App Div 2d 923, 446 NYS2d 765, motion gr 55 NY2d 1035, 449 NYS2d 712, 434 NE2d 1079 and affd 56 NY2d 394, 452 NYS2d 381, 437 NE2d 1138, held that since there is no statutory defense to a divorce action in New York based on defendant's cruel and inhuman treatment (citing Biamonte v. Biamonte (1977, 4th Dept) 57 App Div 2d 1052, 395 NYS2d 839), and that an attempt to explain or excuse conduct, which would otherwise constitute actionable cruelty, by reason of a defendant's mental illness, cannot be justified.

The Court said that the statutory test is the effect of the conduct upon the plaintiff and that it must make it unsafe or improper for the plaintiff to cohabit with the defendant and the burden of such proof is on the plaintiff.

The defendant's argument was that the defendant's conduct must be intentional and that her mental illness renders her incapable of the required intent. The Third Department held that there is nothing in the statute to indicate a requirement of intent and the Courts should not interpose a test lacking in the statute.

The Court overruled its earlier decision in Tobin v. Tobin (1966, 4th Dept) 25 App Div 2d 948, 270 NYS2d 532 (ovrld Pajak v. Pajak (4th Dept) 85 App Div 2d 923, 446 NYS2d 765, motion gr 55 NY2d 1035, 449 NYS2d 712, 434 NE2d 1079 and affd 56 NY2d 394, 452 NYS2d 381, 437 NE2d 1138), insofar as it might have application to the instant case. There is no statute expressly making insanity on the part of the defendant at the time the adultery was committed a defense to the action, but insanity is involved in the main issue with respect to the adultery, since adultery within the spirit and intent of the statute implies consent or acquiescence, and consent must be regarded as lacking in the act of an insane person. Laudo v. Laudo (1919) 188 App Div 699, 177 NYS 396; Cook v. Cook 53 Barb 180.

Affirmative Defenses

- Statute of Limitations

The Domestic Relations Law provides that no action for divorce may be maintained on a ground which arose more than five years before the date of the commencement of the action except where abandonment or separation pursuant to agreement or judgment is the ground.[Dom Rel L 210.] The Domestic Relations Law also provides that a divorce will not be granted although the adultery of the defendant is established, where there has been no express forgiveness, and no voluntary cohabitation of the parties, but the action is not commenced within five years after discovery by the plaintiff of the offense charged. [Dom Rel L 171, subd (3)]. Where the injured party acquiesces for five years after knowledge of adultery, he or she is presumed to have pardoned or forgiven the offense. Ackerman v. Ackerman (1910) 200 NY 72, 93 NE 192; Gouch v Gouch (1910) 69 Misc 436, 127 NYS 476. Moreover, continuous adultery of the defendant, existing and known to the plaintiff for more than five years before the commencement of the action for divorce, is a bar even though the plaintiff produces evidence of adultery with the corespondent within the five-year period.Ackerman v. Ackerman (1910) 200 NY 72, 93 NE 192; Valleau v. Valleau, 6 Paige 207; Coyne v. Coyne (1946) 271 App Div 895, 67 NYS2d 488, affd 297 NY 927, 79 NE2d 748; Rosenbaum v. Rosenbaum (1968) 56 Misc 2d 221, 288 NYS2d 285. [Plaintiff husband who sued for divorce for adultery committed more than five years before commencement of the action may not amend complaint to allege cruel and inhuman treatment based upon same act of adultery. Garelick v. Garelick (1968) 56 Misc 2d 76, 287 NYS 2d 815.]

Civil Practice Law and Rules, Section 207, which suspends the running of a statute of limitations during the absence of the defendant from the state applies to actions for divorce. Ackerman v. Ackerman (1910) 200 NY 72, 93 NE 192; Gouch v. Gouch (1910) 69 Misc 436, 127 NYS 476. In other words, the period of absence of the defendant from the state must be added to the ordinary five-year period for commencing an action for divorce. Ackerman v. Ackerman (1910) 200 NY 72, 93 NE 192; Hawkins v. Hawkins (1905) 110 App Div 42, 96 NYS 804; Gouch v. Gouch (1910) 69 Misc 436, 127 NYS 476. This is so even though the plaintiff might have brought an action in rem for divorce by service by publication on the defendant. Simonson v. Nafis (1899) 36 App Div 473, 55 NYS 449.

Recrimination - Adultery of Plaintiff

The Domestic Relations Law provides that the plaintiff is not entitled to a divorce even though the adultery of the defendant is established, "where the plaintiff has also been guilty of adultery under such circumstances that the defendant would have been entitled, if innocent, to a divorce." Dom Rel L 171(4).

The misconduct of the plaintiff, to bar recovery, must be such as could be made the basis of an action for divorce by the defendant. Weiger v. Weiger (1946) 270 App Div 770, 59 NYS2d 444; Kapitola v. Kapitola (1919) 189 App Div 459, 178 NYS 734; Ryan v Ryan (1928) 132 Misc 339, 229 NYS 511. Thus, where the adultery of the plaintiff was committed with the connivance of the defendant, the defendant cannot use such adultery as a defense to a divorce action brought against him or her, Bleck v Bleck (1882, NY) 27 Hun 296, since the defendant could not maintain an action for divorce against the plaintiff because of the defendant's connivance. Similarly, the commission of an act or acts of adultery by the plaintiff more than five years before the commencement of the action, and then known by the defendant to have been committed, does not bar the plaintiff's right to a judgment; since the defendant could not maintain an action for divorce against the plaintiff because of the lapse of time, it follows that the plaintiff's misconduct is not a defense.Fleischer v Fleischer (1947) 188 Misc 402, 68 NYS2d 6; Mays v. Mays 18 (1940, Sup) 22 NYS2d 702, affd 261 App Div 984, 27 NYS2d 436; Ryan v. Ryan (1928) 132 Misc 339, 229 NYS 511. Moreover, the commission of an act or acts of adultery by the plaintiff does not operate as a defense to the plaintiff's action for a divorce where such misconduct has been forgiven or condoned by the defendant, since the defendant could not maintain an action for a divorce on the basis of a condoned offense. However, the commission of an act or acts of adultery by the plaintiff bars a judgment of divorce by him or her, even though the defendant, for want of ability to comply with residence requirements, could not have maintained an action for divorce based upon such misconduct.Leseuer v. Leseuer, 31 Barb 330.

Where the defendant in an action for divorce sets forth the adultery of the plaintiff as a defense or counterclaim, that issue must be determined before the plaintiff is entitled to a divorce, even though it is shown that the defendant is guilty of adultery. Paul v. Paul (Sup) 11 NYSR 71.

"If the marriage contract is to be destroyed for adultery, then that issue must be alleged, joined and squarely met and not raised collaterally or urged as justification for an invalid and wrongfully procured foreign decree of divorce." Pszczola v. Pszczola (1957) 8 Misc 2d 924, 167 NYS2d 695.

Where actions for divorce by the wife against the husband and by the husband against the wife were consolidated, the Appellate Division affirmed the trial court's finding of adultery by the husband, but reversed the trial court's finding that the wife's adultery had not been proven. The Appellate Court stated further that "recrimination is established ....... We now do what the trial court should have done ....... , and we make appropriate substitute findings, and correct both judgments accordingly, denying divorce to both parties, stripping the wife of the award of alimony and leaving intact the provisions for custody support and visitation of the child." Recht v. Recht (1971, 1st Dept) 36 App Div 2d 939, 321 NYS2d 398.

Condonation - Forgiveness

Even though in a divorce action on the ground of adultery, the adultery of the defendant is established, the Domestic Relations Law provides that a divorce will not be granted where the offense charged has been forgiven by the plaintiff. [Dom Rel L 171(2)]. Forgiveness, thus legally releasing the injury, is called "condonation." Wood v. Wood, 2 Paige 108. In Uhlmann v. Uhlmann, 17 Abb NC 236, the Court held that "condonation" is a purely technical term of the English ecclesiastical law. The New York statute uses the word "forgiveness." This is a word of a more popular kind than "condonation" Anglo-Saxon instead of Latin but with the same general meaning.

The defense of condonation or forgiveness may, in the words of the statute, be proved "either affirmatively [Dom Rel L 171(2)] or by the voluntary cohabitation of the parties with knowledge of the fact."

Condonation is merely a conditional forgiveness of the offense, and a subsequent adultery revives the condoned adultery.

By Voluntary Cohabitation

Where the defendant in an action for a divorce based on adultery sets forth the defense that the offense of adultery has been forgiven by the plaintiff, the forgiveness may be proved by the voluntary cohabitation of the parties, [Dom Rel L 171(2)]

provided it is with knowledge of the facts. Where the plaintiff has voluntarily cohabited with the defendant with full knowledge that the defendant has been unfaithful, it is presumed that the plaintiff has condoned or forgiven the injury, and the action for divorce is barred thereby.

Wood v. Wood, 2 Paige 108. The court said that the inference of condonation on the part of a wife who cohabits with her husband after knowledge of his adultery should not be as strictly drawn as in the case of the husband, inasmuch as the wife is to a certain extent under the control of her husband.

Brown v. Brown (1940, Dom Rel Ct) 21 NYS2d 325. Cohabitation, and thus condonation, will be inferred from the fact of living together as husband and wife, where nothing appears to the contrary. Karger v. Karger (1897) 19 Misc 236, 44 NYS 219.

In a divorce action, it was held that testimony by the defendant to sustain a claim of condonation, to the effect that, although she was living apart from the plaintiff, cohabitation was a monthly occurrence, did not establish the defense of condonation, since the story showed an unusual, if not improbable, condition of affairs. Abbott v. Abbott (1928) 132 Misc 11, 228 NYS 611.

However, in the absence of any other evidence tending to establish forgiveness, a single act of intercourse between the parties is not such a voluntary cohabitation of the parties as to prove forgiveness, particularly where the intercourse was committed while the plaintiff was emotionally upset and under the influence of liquor. Kinley v. Kinley (1952, Sup) 115 NYS2d 341.

Necessity of Knowledge of Offense

For cohabitation to constitute forgiveness of the adultery, it must take place with full knowledge of the fact.[Dom Rel L 171(2)] This means that the cohabitation must be with knowledge that the defendant committed adultery. Donnelly v Donnelly (1947) 272 App Div 779, 69 NYS2d 651; Uhlmann v Uhlmann, 17 Abb NC 236. It must appear with reasonable clearness Merrill v. Merrill (1899) 41 App Div 347, 58 NYS 503. that the plaintiff had knowledge sufficiently substantial upon which to base a belief in the guilt of the defendant, Diggs v. Diggs (1919) 187 App Div 859, 175 NYS 791; Harris v. Harris (1903) 83 App Div 123, 82 NYS 568; Deisler v. Deisler (1901) 59 App Div 207, 69 NYS 326; Abbott v Abbott (1928) 132 Misc 11, 228 NYS 611, not only of the particular act of adultery, but of all the then existing charges of adultery.[Uhlmann v. Uhlmann, 17 Abb NC 236, held in reference to the requirement that the plaintiff have "knowledge of the fact": "It is to be observed that the Code does not use the word 'facts,' but 'fact.' The expression used is, 'the knowledge of the fact.' What fact? There is only one fact that can possibly be referred to, and that is the fact of adultery. In construction that word may be substituted, and then the section would read, 'with the knowledge of the adultery.' In this respect the Code differs from the Revised Statutes, where the word 'facts' is used (2 RS 145, 42)."] The plaintiff must not only have some indication of the fact of adultery, but must believe the fact to be true. Abbott v Abbott (1928) 132 Misc 11, 228 NYS 611. Evidence that the husband, while his wife was living apart from him, received a letter from her landlord, complaining of her conduct, but apparently did not believe the charges therein, as he threatened to prosecute the landlord for sending such a letter through the mail, was held to be insufficient to show condonation by subsequent cohabitation.

In an action by a wife for divorce on the ground of adultery, evidence that the husband of the woman with whom defendant had the adulterous relations came to defendant's house and in the presence of the plaintiff charged defendant to his face with the improper relations was held insufficient to sustain a finding of condonation, in view of the additional circumstance that defendant, when so accused, protested his innocence and at that time convinced both the plaintiff and the accuser that some other man was the guilty party and volunteered his aid in discovering the identity of the culprit. Merrill v. Merrill (1899) 41 App Div 347, 58 NYS 503. Mere circumstances of a suspicious nature, where the adultery is denied by the alleged guilty party, do not constitute such knowledge of the misconduct that subsequent cohabitation establishes forgiveness, for a husband or wife is justified in relying upon the other's denial so long as he or she is not in possession of substantial evidence of guilt.Harris v. Harris (1903) 83 App Div 123, 82 NYS 568; Deisler v. Deisler (1901) 59 App Div 207, 69 NYS 326; Merrill v. Merrill (1899) 41 App Div 347, 58 NYS 503; Uhlmann v. Uhlmann, 17 Abb NC 236. Moreover, the plaintiff may not be held to have condoned the adultery where his or her knowledge of the adultery lies entirely in the other's confession, Merrill v. Merrill, supra. Uhlmann v. Uhlmann, 17 Abb NC 236. but rather it must appear that the plaintiff has some proof in addition to the confession. Merrill v. Merrill (1899) 41 App Div 347, 58 NYS 503. This is a practical rule, since the confession alone is not sufficient as proof of adultery charged as a ground for divorce.

Revival of Condoned Offense

Condonation or forgiveness of the offense of adultery which constitutes a defense to an action for divorce is not absolute, but is conditioned upon the defendant's future good conduct. Ohms v. Ohms (1955) 285 App Div 839, 137 NYS2d 397; Kreighbaum v. Kreighbaum (1922) 118 Misc 100, 192 NYS 516

Where the defendant commits adultery subsequent to the condonation, the condoned adultery is revived so that a divorce may be granted therefor.Smith v Smith, 4 Paige 432. Clark v. Clark (1867) 30 NY Super Ct 276. Moreover, the condonation will be nullified and the original offense of adultery revived by subsequent cruelty, abuse, or indignities amounting to marital misconduct or conjugal unkindness. Johnson v Johnson, 14 Wend 637; Ohms v. Ohms (1955) 285 App Div 839, 137 NYS2d 397; Timerson v. Timerson, 2 How Pr NS 526.

Where the defendant's offense of adultery was condoned, but subsequent thereto his misconduct caused him to be convicted of a felony and sentenced to prison, it was held that the defendant by his own act put it out of his own power to provide for the plaintiff, and that such conjugal unkindness revived the condoned offense. Hoffmire v Hoffmire, 3 Edw Ch 173, affd 7 Page 60.

Where the wife with full knowledge of the husband's adultery continued to cohabit with him until he was convicted of an assault upon her and sentenced to the penitentiary for one year, the original adultery was revived and she might secure a divorce. Kreighbaum v Kreighbaum (1922) 118 Misc 100, 192 NYS 516.

Connivance and Collusion

(i) Connivance or Procurement

Even though in a divorce action the adultery of the defendant is established, there is a statutory bar if the offense was committed by the procurement or with the connivance of the plaintiff. [ Dom Rel L 171(1)]"Connivance" has been defined to be the corrupt consenting of a married party to that offense of the spouse for which that party afterward seeks a divorce.Santoro v. Santoro (1945, Sup) 55 NYS2d 294, affd 269 App Div 859, 56 NYS2d 539. The basis of the defense of connivance is volenti non fit injuria, or that one is not legally injured if he or she has consented to the act complained of or was willing that it should occur, Myers v Myers, 41 Barb 114. and it is closely associated in many cases with the defense of collusion. It may be established by declarations of the plaintiff and by evidence of his or her conduct and the surrounding circumstances.Santoro v. Santoro (1945, Sup) 55 NYS2d 294, affd 269 App Div 859, 56 NYS2d 539; Myers v. Myers, 41 Barb 114.

Where the plaintiff has conspired with another person to have the latter commit adultery with the defendant, the plaintiff connives at such adultery.Fisher v. Fisher (1917) 220 NY 710, 116 NE 1044.

In Armstrong v. Armstrong (1904) 45 Misc 260, 92 NYS 165, the husband induced the corespondent to try to seduce his wife in 1901. The corespondent accomplished his mission in 1903 and 1904. The court held that it could assume, in the absence of evidence to the contrary, that the husband's original connivance set in motion the acts finally resulting in the adultery complained of. The plaintiff, however, is not guilty of connivance merely because he or she failed to prevent or discourage the commission of the adultery by the defendant.Reiersen v. Reiersen (1898) 32 App Div 62, 52 NYS 509; Pettee v Pettee (1894) 77 Hun 595, 28 NYS 1067, affd 148 NY 735, 42 NE 725.

Where a husband believes that his wife has already committed adultery and intends to persist in her adulterous practices whenever she has the opportunity, and he, desiring to obtain evidence thereof, does not actively interfere to prevent the commission of the offense, where had he desired to do so, he could have prevented it, he is not by reason of that fact guilty of such connivance in her act as will preclude his taking advantage of it as a ground for divorce (Reiersen v Reiersen (1898) 32 App Div 62, 52 NYS 509. Where a spouse employs detectives or agents for the express purpose of committing adultery with the other spouse, there is a corrupt consent and a connivance at the adultery.Helmes v. Helmes (1898) 24 Misc 125, 52 NYS 734. An act of adultery, moreover, is deemed to have been procured by the plaintiff where it appears that it was committed by the defendant with an agent of the plaintiff employed by the plaintiff to procure evidence of the defendant's adultery, since the plaintiff is charged with responsibility for the act of the agent, albeit the agent was not hired for the purpose of committing adultery. In McAllister v. McAllister (1912, Sup) 137 NYS 833, the court held that a husband was charged with responsibility for his detective's act where he employed the detective to obtain evidence of his wife's adultery, and the detective employed an assistant who spent money on different occasions in taking the wife to theatre and to dinner and later induced her to accompany him to the place where the alleged adultery occurred.

The court distinguished Tuck v. Tuck, infra, saying that in the Tuck Case the agent employed was of the same sex as the defendant and that the agent merely suggested that he and the husband should visit a house of prostitution.

In Tuck v. Tuck (1907) 117 App Div 421, 102 NYS 688, it was held that a wife had not connived where she employed a detective to obtain evidence of her husband's adultery in another state and the detective became acquainted with the husband and suggested that they visit a house of prostitution. The husband readily agreed and did commit adultery in that place. The appellate court, reversing the judgment of the trial court and itself granting a divorce, found that the husband understood what he was doing and acted on his own volition, that the wife did not employ the detective to aid or connive at the commission of the offense, and that neither she nor her attorneys were in any way responsible for her husband's acts.

(ii) Collusion

Collusion between the parties to a divorce proceeding will bar the granting of a judgment of divorce, Hanks v. Hanks, 3 Edw Ch 469; Dodge v. Dodge (1904) 98 App Div 85, 90 NYS 438; Galloway v. Galloway (1904) 92 App Div 300, 86 NYS 1078; Goldner v. Goldner (1900) 49 App Div 395, 63 NYS 431; Bowe v. Bowe (1907) 55 Misc 403, 106 NYS 608; Cowan v. Cowan (1898) 23 Misc 754, 53 NYS 93; Huntley v. Huntley (1893) 73 Hun 261, 26 NYS 266 and may be a ground for vacating the judgment, since collusion is deemed to be a fraud on the court. Crowley v. Crowley (1959) 18 Misc 2d 586, 186 NYS2d 60. The term "collusion" as applied to a divorce proceeding has been broadly defined to be an agreement between a husband and wife to procure a judgment dissolving the marriage contract, which judgment, if the facts were known, the court would not grant. Doeme v. Doeme (1904) 96 App Div 284, 89 NYS 215. The term "collusion" also has been more narrowly defined as an agreement between husband and wife for one of them to commit, or to appear to commit, or to be represented in court as having committed, a breach of the matrimonial duty, for the purpose of enabling the other to obtain the legal remedy of divorce as for a real injury. Fuchs v. Fuchs (1946, Sup) 64 NYS2d 487; McIntyre v. McIntyre (1894) 9 Misc 252, 30 NYS 200. It should be noted that the General Obligation Law was amended in 1966 to provide that an agreement made between a husband and wife shall not be considered a contract to alter or dissolve the marriage unless it contains an express provision requiring the dissolution of the marriage or provides for the procurement of grounds for divorce. [Gen Oblig L 5-311]. Conduct that formerly might be regarded as "collusive" may not be so regarded under the new expression of public policy.

The courts have not always been careful to distinguish between connivance and collusion. In one case it was said that the collusion which is fatal to a valid judgment of divorce is collusion in procuring or conniving at the act or acts of adultery. Dodge v. Dodge (1904) 98 App Div 85, 90 NYS 438. While connivance and collusion are closely related, the distinction between them is that connivance is a corrupt consenting, whereas collusion is a corrupt agreement. Thus, to constitute collusion there must be an agreement between husband and wife looking to the procuring of a divorce.Doeme v. Doeme (1904) 96 App Div 284, 89 NYS 215; Bowe v. Bowe (1907) 55 Misc 403, 106 NYS 608; McIntyre v. McIntyre (1894) 9 Misc 252, 30 NYS 200

The readiness of one of the parties to a divorce action to assist the other in the legal proceedings is not of itself collusive, although it invites scrutiny into the facts to ascertain whether they are false, or, if true, whether there was an arrangement to procure a divorce. Dodge v. Dodge (1904) 98 App Div 85, 90 NYS 438. Similarly, the mere furnishing of information to the plaintiff by the defendant of his past acts of adultery does not constitute collusion barring the plaintiff from a divorce; it is only a circumstance to be taken into consideration by the court in determining whether there actually has been collusion. Rosenzweig v. Rosenzweig (1931) 231 App Div 13, 246 NYS 231; Lake v. Lake (1946, Sup) 60 NYS2d 105.

In a divorce action brought by the first wife on the ground of adultery, the mere fact of the appearance of the second wife, who married defendant after he had procured an illegal mail-order Mexican divorce, as a witness for the first wife, did not establish collusion. Maroth v. Maroth (1946, Sup) 64 NYS2d 260. The law contemplates collusion in the offense, not in furnishing evidence thereof. Rosenzweig v. Rosenzweig (1931) 231 App Div 13, 246 NYS 231. This is particularly true in view of the new provision of the General Obligation Law set forth above.

The commission of an act of adultery, or the creation of the appearance of having committed it, with the consent or privity of the other party, or under an arrangement between the spouses, has been held to be collusion. Dodge v. Dodge (1904) 98 App Div 85, 90 NYS 438; Goldner v. Goldner (1900) 49 App Div 395, 63 NYS 431; Huntley v. Huntley (1893) 73 Hun 261, 26 NYS 266.

In Cowan v. Cowan (1898) 23 Misc 754, 53 NYS 93, a divorce was refused a wife, it appearing that the husband committed adultery for the avowed purpose of furnishing grounds for a divorce, and in collusion with her son, who informed her of the facts. However, the failure of the defendant to appear and defend an action of divorce is not of itself collusion, although it may, in connection with other circumstances, be evidence thereof. In Galloway v. Galloway (1904) 92 App Div 300, 86 NYS 1078, the defendant in a divorce action interposed an answer denying the allegations of the complaint with respect to the commission of adultery. It was unverified, and on the trial no cross-examination of witnesses was made by the defendant's attorney save in slight particulars which tended to strengthen the plaintiff's case rather than to show a defense and the defendant offered no testimony. The court held that the circumstances were sufficiently strong to show collusion and to justify the court in refusing to grant a decree of divorce.

Any arrangement or plan between the parties whereby evidence of a valid defense to a divorce action is suppressed constitutes collusion, which bars a judgment of divorce. Peck v. Peck (1887, NY) 44 Hun 290. The court said that it is not the policy of the law to allow judgments of divorce to be taken where a valid defense exists, and courts on their own motion interfere to prevent such result where the facts are brought to their knowledge. Clearly, an agreement between the parties to an action for a divorce that the defendant shall withdraw opposition to, or not defend the action, is collusive and bars a judgment of divorce. McIntyre v. McIntyre (1894) 9 Misc 252, 30 NYS 200. However, agreements relating to alimony, or the adjustment of property rights which do not directly induce the procurement of a divorce, do not constitute such collusion as will bar a divorce. Daggett v.Daggett, 5 Paige 509; Doeme v Doeme (1904) 96 App Div 284, 89 NYS 215.

In Doeme v. Doeme, supra, the court said that it has never before been claimed that the settlement of financial transactions between a husband and wife at or about the time a divorce is granted is a badge of fraud or collusion, or even a suspicious circumstance requiring investigation. The court, by its decree, in a majority of actions where a divorce is granted, makes some provision for the support of the wife, but that a husband voluntarily does so, of itself, no more constitutes evidence of collusion than does the court's decree. There is a moral as well as a legal obligation resting upon a husband to support his wife, and even if she errs, the fact that he sees fit to make provision for her support, at the time a divorce is granted, cannot deprive him of the right which the statutes give him, to dissolve the marriage contract, nor does it furnish ground of suspicion that the judgment is the result of collusion and conspiracy between the parties, or that the court, had that fact been known, would not have granted the judgment. The same rule is equally applicable to the wife. If she has means and the husband has none, there is no impropriety on her part in making some provision for his future support and maintenance, however indelicate it may be for him to accept it.