A History of Matrimonial Institutions, Vol. 3 of 3Howard, George Elliott
History
A History of Matrimonial Institutions, Vol. 3 of 3
Howard, George Elliott
Families; Marriage -- History
view of injuring the rights of the wife." Custody of the children of
the marriage, "whose provisional keeping is claimed by both husband
and wife," belongs to the husband, whether plaintiff or defendant,
"unless there shall be strong reasons to deprive him of it;" but
when a separation from bed and board has been decreed, the "children
shall be placed under the care of the party who shall have obtained
the separation, unless the judge shall, for the greater advantage
of the children and with the advice of the family meeting, order
that some or all" of them be intrusted to the other spouse. In all
cases of full divorce "the minor children shall be placed under the
tutorship of the party who shall have obtained" the decree.[336]
[333] _Code of Va._ (1887), 562; _cf._ _Code of W. Va._ (1900),
662.
[334] _Code of N. C._ (1883), I, 517.
[335] _Digest of Ark._ (1894), 681; _Ann. Stat. of Ind. Ter._
(1899), 326.
[336] Rev. _Civil Stat. of La._ (1888), 70-72; _ibid._ (1870),
19-21; _ibid._ (1897), 306.
Permanent alimony and the custody of the children after dissolution
of marriage are generally provided for. Sometimes the wife is
granted separate alimony without a decree of divorce, as in
Virginia, Florida, Georgia, and Oklahoma.[337] From an early period
the North Carolina statutes have been conspicuous for the relief
granted to the wife after divorce, or, under certain circumstances,
without formal separation. Thus by the act of 1814 the court may
grant a woman having a limited divorce for cruelty or abandonment
such alimony as the husband's means will admit, not exceeding
either one-third of his real or personal estate or a like share of
the annual profits of his estate, occupation, or labor.[338] The
deserted wife gains still further protection in 1816. "Whereas,"
declares an act of that year, "cases of great hardship often occur,
the husband being at liberty to return and squander away the
estate of the wife, subsequently obtained;" to remedy the evil it
is therefore enacted that in future the decree of separation from
bed and board shall have the effect of securing to the wife "any
property which she may subsequently obtain, either by her own labor,
gift, devise, or operation of law, unless the court shall in their
judgment otherwise order."[339] Furthermore, in 1828-29 the courts
were authorized to grant the wife separate alimony without divorce
"whenever a man shall become an habitual drunkard or spendthrift,
wasting his substance to the impoverishment of his family."[340] The
present law is conceived in the spirit of these early enactments.
In case of separation from bed and board, the amount of alimony is
the same as in 1814. Separate maintenance without a divorce is still
allowed. "When any husband shall separate himself from his wife
and fail to provide her with the necessary subsistence according
to his means and condition in life, or if he shall be a drunkard
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