Campbell v. Campbell , 242 Ala. 141 ( 1941 )

The social implications behind the prevailing doctrine that divorce is purely a personal right, optional, elective on the part of the injured spouse is so compelling as to lead me, on fuller reflection, to conclude, in the absence of express statute, the door of the court of chancery should not be open to a third party to assume the role of next friend in the case here presented.

I think it not amiss to call attention to averments of the amended bill showing some of the social results involved. It is averred the wife remarried, reared a family of children, by the second husband, now deceased.

For sound reasons of public policy, where the legitimacy of children is involved, a presumption of the validity of the second marriage is indulged. Ex parte Young, 211 Ala. 508,101 So. 51; 27 C.J.S., Divorce, § 186, p. 845.

If now the insane husband should be restored to sanity, and confronted with the question of suing for divorce, or leaving matters as they are, he would face this proposition in his own mind: By my own unfortunate state, I have not been able to take the place of a husband in fact for these forty years. My wife has had a valid ground of divorce against me for many years. Not that this excuses her delinquency, but because of my own inability during all these years, shall I now sue for divorce, or shall I leave matters as they are?

I am impelled to concur in the opinion of Chief Justice GARDNER, merely noting the above as additional reasons therefor.