Sec. 46b-40. (Formerly Sec. 46-32). Grounds for dissolution of marriage; legal separation; annulment. - Connecticut Statutes

      Sec. 46b-40. (Formerly Sec. 46-32). Grounds for dissolution of marriage; legal separation; annulment. (a) A marriage is dissolved only by (1) the death of one of the parties or (2) a decree of annulment or dissolution of the marriage by a court of competent jurisdiction.

      (b) An annulment shall be granted if the marriage is void or voidable under the laws of this state or of the state in which the marriage was performed.

      (c) A decree of dissolution of a marriage or a decree of legal separation shall be granted upon a finding that one of the following causes has occurred: (1) The marriage has broken down irretrievably; (2) the parties have lived apart by reason of incompatibility for a continuous period of at least the eighteen months immediately prior to the service of the complaint and that there is no reasonable prospect that they will be reconciled; (3) adultery; (4) fraudulent contract; (5) wilful desertion for one year with total neglect of duty; (6) seven years' absence, during all of which period the absent party has not been heard from; (7) habitual intemperance; (8) intolerable cruelty; (9) sentence to imprisonment for life or the commission of any infamous crime involving a violation of conjugal duty and punishable by imprisonment for a period in excess of one year; (10) legal confinement in a hospital or hospitals or other similar institution or institutions, because of mental illness, for at least an accumulated period totaling five years within the period of six years next preceding the date of the complaint.

      (d) In an action for dissolution of a marriage or a legal separation on the ground of habitual intemperance, it shall be sufficient if the cause of action is proved to have existed until the time of the separation of the parties.

      (e) In an action for dissolution of a marriage or a legal separation on the ground of wilful desertion for one year, with total neglect of duty, the furnishing of financial support shall not disprove total neglect of duty, in the absence of other evidence.

      (f) For purposes of this section, "adultery" means voluntary sexual intercourse between a married person and a person other than such person's spouse.

      (P.A. 73-373, S. 1; P.A. 74-169, S. 1, 18; P.A. 78-230, S. 18, 54; P.A. 91-19, S. 1.)

      History: P.A. 74-169 rephrased Subsec. (c) and applied provisions to decrees of legal separation; P.A. 78-230 restated provisions, adding Subdiv. indicators in Subsec. (c) and creating Subsecs. (d) and (e) from provisions formerly in Subsec. (c); Sec. 46-32 transferred to Sec. 46b-40 in 1979; P.A. 91-19 added Subsec. (f) defining "adultery".

      See Sec. 46b-48 re dissolution of marriage or annulment upon conviction of crime against chastity.

      Annotations to former section 46-13:

      Petitioner's presence dispensed with in certain cases. K. 270. "Fraudulent contract" includes those cases only which render marriage void ab initio. 1 D. 114. Decree may be reversed on error. Id. The fact that a petition was to be made by procurement of respondent would be good ground for dismissing it. 4 D. 351. Sufficient if nonresident has actual notice and appears by attorney. 5 D. 358. Corporal imbecility in former statute means a permanent and incurable impotency to consummate the marriage, and such impotency must be shown by proper averment. 8 C. 167. Fraudulent representations must be set forth. Id. Divorce terminates husband's curtesy rights. Id., 541; 10 C. 230. Adultery condoned by cohabitation after knowledge. 9 C. 235. Knowledge that offending party had been convicted of adultery sufficient. Id., 235. An act of general assembly dissolving marriage procured by fraud renders it void only in futuro. Id., 328. Language calculated to wound the feelings insufficient; the cruelty required must be intolerable in fact. 17 C. 193, 194; 97 C. 694; 99 C. 430; 100 C. 3; 102 C. 755. Unreasonable exercise by husband of his marital right is not the cruelty contemplated unless he knew it was injurious and dangerous to wife. 17 C. 195; 61 C. 234. Husband not liable for wife's legal expenses in procuring divorce. 18 C. 421. Effect of, on responsibility for support of children. 22 C. 417. Proof of adultery inadmissible unless distinctly charged. 41 C. 40. Petition alleging adultery should be defined as to times, places and persons. Id., 40. A general finding of court that "respondent had not been guilty of intolerable cruelty" negatives specific allegation of cruelty. 43 C. 274. Desertion consists in a cessation of cohabitation, with a determination on part of offender not to renew it. Id., 318. Separation from necessity, such as inability by husband to support wife, does not constitute desertion. Id., 318, 319. Divorce granted for misconduct of wife as a matter of law does not revoke a legacy to her. 48 C. 504. Habitual intemperance a question of fact left to determination of trial court. 68 C. 192. When act of adultery was brought about by the connivance of petitioner, divorce will not be granted. Id., 195. Attitude of state as to divorce. 68 C. 186; 72 C. 151; Id., 569; 78 C. 242. Nature of legislative divorce. 69 C. 585. Who may attack decree for fraud. 69 C. 652; 73 C. 493. Humiliating wife by obscene profane language and appearing before her intoxicated, knowing her dangerous condition of health, and communicating to her infectious disease constitutes intolerable cruelty. 70 C. 427. Desertion. 72 C. 569; 84 C. 591; 90 C. 660; 91 C. 617; 97 C. 490; 126 C. 178; 131 C. 356; Id., 437. Furnishing support to a wife under order of court, though having deserted her, does not necessarily prevent court from finding husband guilty of desertion with total neglect of duty. 72 C. 571. No one has vested right to divorce; cause must exist at time of trial; evidence of actions since bringing of action admissible. 73 C. 54. Discretion of court. 78 C. 262. Fraudulent contract. 78 C. 242; 90 C. 399; 110 C. 443; 114 C. 7; 115 C. 303. Prior divorce a defense. 88 C. 689; not so, foreign divorce a mensa et thoro. 91 C. 617. Rabbinical divorce as abandonment. 90 C. 213. What constitutes intolerable cruelty. 95 C. 61; 107 C. 489; 110 C. 695; 126 C. 178. Proof of adultery should be clear. 96 C. 275. Four elements necessary to constitute desertion. 97 C. 490. Subsequent misconduct justifying divorce destroys effect of condonation and revives earlier, condoned offense. 100 C. 523. Unfounded accusations of adultery held to constitute intolerable cruelty under circumstances. 101 C. 84. Jurisdiction of court to order allowance to defend. 103 C. 197; 104 C. 415. Jurisdiction of superior court in general. 97 C. 443. State of domicile may grant divorce for any cause allowed by its laws, even though it was not a ground for divorce in place where committed. 108 C. 302. Law of forum governs throughout. Id. Condonation; removal of bar by subsequent conduct. Id., 303. Fraud by nondisclosure of facts. 110 C. 446. Misrepresentations as to age, name and nationality insufficient to dissolve consummated marriage. 114 C. 12. Misrepresentations as to continence in past condoned. Id., 11. Laches as ground for denial of divorce based on fraudulent contract. 115 C. 303. Concealment of epilepsy as fraudulent contract: Id. Divorce and annulment distinguished. 119 C. 197. Refusal of martial relations is not in itself desertion. 126 C. 178. Assault with intent to commit rape is an "infamous crime". 128 C. 128. In desertion an innocent plaintiff need not attempt reconciliation. 131 C. 356; Id., 437. Cited. 133 C. 457. Fact that parties lived in same house pending decision is not conclusive on issue of intolerable cruelty. 134 C. 658. Cited. 136 C. 192; 143 C. 727. Where court did not find as a fact that separation was without plaintiff's consent, a conclusion of wilful desertion could not be sustained. 137 C. 165. Interest which state has in outcome justified court in denying decree despite unequivocal testimony on vital element in desertion case. 138 C. 490. Rule of superior court which permits amendment to complaint stating a ground for divorce alleged to have arisen since commencement of action does not affect substantive rights and is purely procedural. 139 C. 163. Intolerable cruelty must be shown subjectively as well as objectively. 144 C. 568. If ground for divorce is clearly established, plaintiff is not precluded from judgment by reason that evidence lacked corroboration of other witnesses. 151 C. 180. Cited. 152 C. 156 (Fn 2). Adultery will be presumed upon proof that spouse has gone through a formally valid marriage ceremony with another and that spouse is living with that other. 153 C. 301. Cited. 154 C. 703. These grounds for divorce not necessary for granting divorce upon basis of continued legal separation under section 46-30. 157 C. 85.

      Institution of confinement must be in this state. 4 CS 243. Voluntary furnishing of support prevents proof of "total neglect of duty". Id., 499; 11 CS 14. Cited. 5 CS 34. Refusal of sexual intercourse as desertion discussed. 7 CS 197. Attempt to commit rape only attempt to violate conjugal duty and therefore not grounds for divorce. 9 CS 122. Silence as consent to separation. Id., 231. Ingredients of desertion. 10 CS 71. "Duty" in wilful desertion means the duty to cohabit and includes no others. 14 CS 129. Plaintiff cannot amend a complaint for intolerable cruelty to include desertion unless three years have elapsed prior to the commencement of the original suit. Id., 442. Confinement in an institution must be actual. The fact that one who escapes is still subject to confinement is not enough. 16 CS 130. Proving that habitual intemperance existed until the separation of the parties comes directly within the provisions of section 1-1 as to pending actions. Id., 446. Desertion provision of three years discussed. 17 CS 161. Cited. Id., 233. To justify divorce on ground of mental illness, court must find that illness is incurable. Id., 410. Three years of desertion must elapse before suit is brought not before trial. Id., 483. Adultery by plaintiff after desertion by defendant is a recriminatory bar to divorce. 18 CS 312. False accusations of adultery or unchastity held to constitute intolerable cruelty. 20 CS 435. Evidence of conviction of a crime of injury or risk of injury to children held not to support a divorce decree, for the crime is not of such a nature that the record of conviction necessarily conveys the essentials that it is infamous, that involves a violation of conjugal duty, and that it is punishable by imprisonment in the State Prison. 21 CS 198. Condonation should be specially pleaded as a defense. Id., 228. An offense which has been condoned may be revived not only by a repetition of the same offense but also by the subsequent commission of other marital offenses constituting a ground of divorce. Id. Conditions necessary to sustain a decree of divorce for desertion. Id., 301. In action on ground of intolerable cruelty, mere wrangling over money matters held not intolerable cruelty and that plaintiff desired freedom from marriage is not enough. 22 CS 96. Nagging not intolerable cruelty. Id., 146. Claim of husband that conduct was not adulterous because the woman was not married held not relevant in divorce action although criminal statute (section 53-218) specifies married woman. Id., 147. If there is necessary domicile and requirements of our statutes as to notice to nonresident defendant are complied with, court has jurisdiction to grant divorce. 23 CS 161. Discussion of what constitutes wilful desertion; desertion may be actual or constructive. Husband may choose and fix domicile if, in doing so, he acts reasonably, and wife's unjustifiable refusal to accompany or follow him to new domicile constitutes desertion which is constructive. Id. Where parties gave no proof of Nevada divorce decree, nor of ground upon which it was granted, court refused to make Nevada judgment its own judgment by stipulation of parties. Also refused to award alimony to wife where Nevada divorce was obtained because of her misconduct. Id., 368. Cited. 25 CS 239. Special defense to complaint alleging intolerable cruelty that defendant is under conservatorship is insufficient and plaintiff's demurrer thereto is sustained. 27 CS 459. In action on ground of intolerable cruelty proof was lacking that conduct of defendant was intended by him to be cruel and that plaintiff had become tired of defendant as husband was no grounds for divorce. 28 CS 24. Continued relations of plaintiff with another man for whom she bought a trailer was sufficient provocation to constitute defense to her action for divorce on grounds of intolerable cruelty, her conduct having provoked husband to strong language complained of. Id., 336.

      Cited. 4 Conn. Cir. Ct. 647.

      Annotations to former section 46-28:

      "Alimony" discussed. 77 C. 31. New York marriage void for lack of consent. 119 C. 197. Consent and intent essential to afford mutuality of a valid contract existed. 136 C. 196. Where both parties to an action for annulment of a void marriage are nonresidents and the defendant is not served with process within this state, the fact that the marriage was performed within this state does not empower the court to obtain jurisdiction over the defendant by constructive service and render a judgment annulling the marriage. 142 C. 175. Superior court has jurisdiction over subject matter of annulment where plaintiff is domiciled in Connecticut whether ground relied on would make marriage voidable. 152 C. 155.

      Power and jurisdiction of court over marriage is purely statutory and must be strictly construed. 1 CS 76. Court does not have power to order alimony pendente lite in annulment proceeding. 5 CS 224. In declaratory judgment with respect to marital status where one has gone through form of second marriage, second woman not entitled to alimony pendente lite, but is entitled to allowance to defend. 9 CS 1. Legislature intended laws of state where marriage was performed relating to voidability of marriage apply. Id., 100. Deception as to osteomyelitis not reason to annul marriage. 11 CS 361. An action for declaratory judgment declaring a Connecticut marriage void may be maintained in the superior court, notwithstanding that all the parties are nonresidents, where service was made in accordance with Connecticut statutes. 12 CS 276. Cited. 14 CS 317. Couple married in New York entitled to annulment where one was physically incapable of entering into marriage even though action in Connecticut brought more than five years after marriage and would be cut off by New York statute of limitations. 15 CS 77. Where agreement between parties that defendant would seek annulment six weeks after marriage annulment not warranted. Cases reviewed. 16 CS 101. Request of husband to join Roman Catholic church after marriage not basis for rendering marriage voidable. Id., 419. Does not empower courts of this state to apply the law of the state in which the marriage took place as to the legitimacy of the children of such marriage. 18 CS 474. Fraudulent premarital representation by wife that she is willing to bear children held not sufficient cause to declare marriage void. 23 CS 201. In action for annulment on grounds of invalidity of defendant's Mexican divorce from first wife, held plaintiff could not make collateral attack on validity of divorce because she had no legally protected interest which was adversely affected by the decree. Id., 275. Where defendant had no intention, at the time of the ceremony, to consummate marriage, decree of annulment was granted. 25 CS 239. Annulment is decree based on theory that marriage is void ab initio. Id. Action brought under this section seeks relief which is equitable in nature. 26 CS 260. Marriage entered into by plaintiff with defendant in New York while plaintiff was already married is bigamous and void under New York law. Hence action for annulment allowed although lawful husband of plaintiff had since died. 27 CS 342. Court has same power to award alimony in annulment cases as in divorce. 29 CS 44.

      Annotations to former section 46-32:

      Subsec. (b):

      Cited. 183 C. 433.

      Subsec. (c):

      Standard for marriage dissolution of "irretrievable breakdown" is not unconstitutional as a denial of due process since language is reasonably precise and not vague, uncertain or indefinite. 35 CS 123.

      Annotations to present section:

      Constitutional even without judicial guidelines to limit discretionary fact-finding of trial courts as to irretrievable breakdown (Subsec. (c)(1)). 178 C. 254. Cited. 184 C. 307. Cited. 190 C. 269; Id., 657. Cited. 194 C. 312. Cited. 224 C. 749.

      Cited. 13 CA 282. Cited. 25 CA 210.

      Cited. 44 CS 431.

      Subsec. (a):

      Subdiv. (1) cited. 35 CA 581.

      Subsec. (b):

      Cited. 15 CA 96.

      Subsec. (c):

      Subdiv. (1) cited. 179 C. 568. Irretrievable breakdown not unconstitutionally vague within strictures of due process. 181 C. 225. Subdiv. (1) cited. 183 C. 512. Cited. 184 C. 558. Subdiv. (3) cited. 185 C. 156.

      Subdiv. (1) cited. 4 CA 611. Subdiv. (9) cited. 13 CA 632. Trial court rejected defendant's claim that statute infringed on his religious beliefs because statute permitted plaintiff to obtain a divorce against his wishes. Statute is a valid and neutral law of general applicability. 82 CA 41.