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Separation

am, husband, rep, wife and st

SEPARATION. A cessation of cohabita tion of husband and wife by mutual agree ment.

After much diversity of opinion in the English cases, the House of Lords upheld an agreement to live apart, and decreed specific performance of its covenants ; 1 H. L. C. 538, followed in 4 De G., F. & J. 221; separation deeds are not per se against public policy ; 12 Ch. Div. 605, per Jessel, M. R. See an in teresting historical review of the English cases by R. J. Peaslee in 15 Harv. L. Rev. 638.

In this country the weight of authority is that there may be a valid agreement for a separation directly between the husband and wife, without the intervention of a trustee, which the courts will sanction ; Carey v. Mackey, 82 Me. 516, 20 AU. 84, 9 L. R. A. 113, 17 Am. St. Rep. 500 ; Randall v. Randall, 37 Mich. 563 ; Stebbins v. Morris, 19 Mont. 115, 47 Pac. 642 ; Hilbish v. Hattie, 145 Ind. 59, 44 N. E. 20, 33 L. R. A..783 ; Sumner v. Sum ner, 121 Ga. 1, 48 S. E. 727 ; the husband will be treated as trustee ; Com. v. Richards, 131 Pa. 209, 18 Atl. 1007.

When subject to such an agreement, the court will prevent the husband from decreas ing the alimony, and will not aid the wife to increase the alimony ; Martin v. Martin, 65 Ia. 255, 21 N. W. 595 ; Henderson v. Hen derson, 37 Or. 141, 60 Pac. 597, 61 Pac. 136, 48 L. R. A. 766, 82 Am. St. Rep. 741.

But it is held that a husband and wife cannot contract to renounce their marital rights ; Hill v. Hill, 74 N. H. 288, 67 Atl. 406, 12 L. R. A. (N. S.) 848, 124 Am. St. Rep. 966; Rogers v. Rogers, 4 Paige (N. Y.) 516, 27 Am. Dec. 84, where it is said that the law does not sanction such agreements, but merely tolerates them when made in such a manner that they can be enforced by or against a third person acting on behalf of the wife; and to the same effect see Clark v. Post, 113

N. Y. 27, 20 N. E. 573 ; Baum v. Baum, 109 Wis. 47, 85 N. W. 122, 53 L. R. A. 650, 83 Am. St. Rep. 854, where such an agreement was held to be against public policy, as sub stituting the will of the parties for the judg ment of the court, and involving the assump tion of a false character in both parties con trary to the marriage contract and subver sive of the interests of society.

The wife's allowance is not forfeited by adultery unless so provided, which is usually by the "dwm casta" (while chaste) clause. If made in view of future separation, it is not good ; 6 B. & C. 200. It is avoided by reconciliation ; 31 Ch. D. 524 ; unless other wise provided ; [1904] 2 Ch. 121. But recon ciliation does not necessarily put an end to a separation deed ; e. g. where the husband had made in the separation deed a settlement on the children ; [1904] 1 Ch. 451; but when the parties changed their mind and did not separate, it was held that the consideration had failed and the settlement was avoided ; L. R. 7 Eq. 343 ; the distinction raised in this case is said to be a fine one ; 20 L. Q. R. 234.

Reconciliation after separation supersedes special articles of separation, in courts of law and equity ; 1 Dowl. P. C. 245 ; Wells v. Stout, 9 Cal. 479.

Articles of separation are no bar to pro ceedings for divorce for subsequent cause ; Rogers v. Rogers, 4 Paige (N. Y.) 516, 27 Am. Dec. 84; J. G. v. H. G., 33 Md. 401, 3 Am. Rep. 183.