Opinion
November 19, 1928.
December 13, 1928.
Divorce — Desertion — Offer by respondent to re-establish family relation within statutory period — Effect.
In a libel for divorce on the ground of desertion, a decree was properly refused, where the evidence disclosed that the parties separated by mutual consent and that the respondent attempted to effect a reconciliation and re-establishment of their family life within two years of the separation.
A deserted spouse is required to take back a deserting mate, if in good faith the latter returns within two years of the desertion and seeks to re-establish the family relation; to the extent, at least, that if he refuses to do so, he connot found an action of divorce on the subsequent separation.
Appeal No. 84 October T., 1928, by libellant from decree of C.P., Chester County, August T., 1926, No. 1, in the case of Wm. E. Lockwood, Jr. v. Helen H. Lockwood.
Before HENDERSON, TREXLER, KELLER, LINN, GAWTHROP and CUNNINGHAM, JJ. Affirmed.
Libel in divorce. Before HAUSE, P.J.
The facts are stated in the opinion of the Superior Court.
The case was referred to George H. Rupert, Esq., as master, who recommended that the libel be dismissed. On exceptions to the master's report the court overruled the exceptions and dismissed the libel. Libellant appealed.
Error assigned was the decree of the court.
Cipriano Andrade, Jr., and with him Granville L. Rettew, for appellant.
Paul Reilly, and with him George B. Johnson, for appellee.
Argued November 19, 1928.
A careful consideration of the evidence in this case leads us all to the conclusion that the appellant was not entitled to a divorce.
We agree with the Master and the court below that the evidence failed to establish a wilful and malicious desertion by the wife of her husband. She left him in October, 1923, with his consent, because their home, after the fire, was unfit for her to live in.
But even if there was a desertion on her part in April, 1924, it did not become complete, so as to justify a decree in divorce, until two years after that date. It must be persisted in for that length of time before there is sufficient cause to grant a divorce for desertion.
No one can read the respondent's letters to her husband of December 31, 1924, and January 20, 1925, without being satisfied of their good faith and of her desire for a reconciliation and re-establishment of their family life. Such an offer made in good faith within the two year period relieves her of further responsibility for their continued living apart, and stops the running of her desertion against her; for if the offer is accepted and the family life is resumed, the desertion is ended; if, as in this case, it is not accepted and the husband refuses to provide a home and receive her back again, the separation thereafter is due to his act, no less than hers, and he cannot base an action of divorce upon it. Desertion is not like adultery in its effects on the marriage relation. The innocent spouse cannot be required to forgive or take back an adulterous mate. But a deserted spouse is required to take back a deserting mate, if in good faith the latter returns within two years of the desertion and seeks to re-establish the family relation; to the extent, at least, that if he refuses to do so, he cannot found an action of divorce on the subsequent separation.
The decree is affirmed at the costs of the appellant.