State of Ransas
Domestic Relations laws Divorce and Alimony laws as of 1947
Edurard F. Arn, Attorney General FOREWORD
During World War II a similar pamphlet was prepared to meet the requests of military authorities and servicemen relative to the Kansas Law on Domestic Relations, and Divorce and Alimony. With the war ended, such requests have continued and this re vision was prepared to meet that demand. DOMESTIC RELATIONS
Chapter 23, G. S. 1035 Article 1. Mnl'l'inge, 23-101 to 23-124. 2. Mnrrle
-3- MARRIAGE LICENSE (Name of place where office is located, month, day and year) To ANY PEnsoN authorized by law to perform the n1arriage ceremony, Greeting: You ore hereby authorized to join in marriage A B of ---, aged --, and C D of ---, aged -.- (and name of parent or guardian consenting)_, and of this license, dulYr endorsed, you will make due return to the office of the state registrar of vltnl statistics at Topeka immediately after performing the ceremony. E F, Probate Judge. Provided, No probate judge shall issue a marriage license before the third calendar day (Sundays and holidays included) following the date of the filing of the application therefor in his office except in cases of emergency or extra ordinary circumstances, a judge of the district court may, upon proper show ing being made, permit by order of the court the issuance of such marriage license without waiting said three days; and every probate judge shall record in a book kept for that purpose, all applications filed for marriage licenses, which records shall show the name of the person applying for such license and the date of the filing of such application and the names of the parties to the proposed marriage: Provided, No probate judge shall issue a license author izing the marriage of any male person under age of twenty-one years, or fe male person under the age of eighteen years, except with the consent of his or her father or mother, ol', if both be dead or incapable, his or her guardian, as the case may be, if she or he have one, which consent, if not given at the time in person, shall be evidenced by a certificate in writing subscribed thereto and duly attested: Provided further, That where such consent shall have .been given as herein provided, no license shall be issud to any male person under the age of eighteen years, or female person under the age of sixteen years, without the consent of the probate judge in addition thereto: Provided /ttr ther, That the probate judge may issue a license upon the affidavit of the party personally appearing and applying therefor, to the effect that the parties to whom such license is to issue are of lawful age, as required by this section, and the probate judge is hereby authorized to administer oaths for that pur pose. Every person swearing falsely in such affidavit shall be deemed guilty of a violation of this act and shall be punished by a fine not exceeding five hundred dollars. The probate judge shall state in every license the age of the parties applying for the same, and, if either or both are minors, the name of the father, mother, or guardian consenting to such marriage. [L. 1867, ch. 84, § 5; G. S. 1868, ch. 61, § 5; L. 1905, ch. 302, § 1; L. 1913, ch. 224, § 2; April 30; R. S. 1923, § 23-106; L. 1947, ch. 240; June 30.] NoTE.-Section 23-106 is a part of article 1, chapter 23 of the General Stat utes which article deals with the subject of marriage and as such is special legislation pertinent to this particular subject. Consequently, the provisions of this particular section relative to the computation of time being also legis lation pertinent to a special subject would supersede general legislation upon the same subject. This requires that the time for issuing a license as provided for in House bill No. 88, be determined by the provisions quoted above. The language used is clear and unambiguous, and provides that Sunday and holi days shall be included in the count to determine "the third calendar day." It is not mandatory that the license be issued on "the third calendar day." If the third calendar day falls on Sunday or a holiday, it would be discretionary with the probate judge as to whether or not he would issue it on that day or on the first regular business day following. Applying the above interpretation to two suggested examples: (1) Application for license made July 5, license could not be issued before July 8, and would be issuable on that day. (2) Application for license made July 3,
-4- license could not be issued before July 6, and would be issuable on that day at the discretion of the probate judge. It should also be noted that House bill No. 88, is mandatory in requiring that the application for a marriage license be made by at least "one of the parties to such proposed marriage," appearing in person before the probate judge.-Excerpts of attorney general's opinion, May 21, 1947. 23·107. Forms for licenses. The forms for license shall be furnished by the state registrar and shall contain a part to be detached and forwarded to the s.tate registrar by the probate judge as hereinafter provided, and also a part to remain as a stub for the record of the probate judge in addition to the marriage license to be delivered to the applicant therefor. [L. 1913, ch. 224, § 3; April 30; R. S. 1923, § 23-107.] . 23·108. Collection of registration fee. That the probate judge shall collect from the applicant for said marriage license an additional registration fee of one dollar (81). [L. 1913, ch. 224; §4; R. 8.1923, §23-108; L. 1925, ch. 201, § 1; May 28.] 23·1 09. Return by minister or officer; records; report to state regis trar. That every person who shall perfom1 any marriage ceremony under the provision of this act, shall within ten days after such marriage, return the said license to the probate judge who issued the same, with his certificate of such marriage endorsed thereon; and said probate judge shall forthwith enter the same on the marriage record in his office, and shall not later than the third day of each month, forward to the state registrar the license and certificate of marriage, together with a statement of the names of the parties and the name and address of the party who performed said marriage ceremony, and shall re mit to the state registrar the one dollar ($1) provided for in section 23-108 of the Revised Statutes of Kansas for 1923, immediately preceding this section: Provided, That in case no marriage license has been issued by the probate judge during the month, he shall promptly notify the state registrar to that effect on a blank provided for that purpose. [L. 1913, ch. 224, § 5; L. 1917, ch. 236, § 1; R. S. 1923, § 23-109; L. 1925, ch. 201, § 2; May 28.] 23·110. Index of records by state registrar; certified copies; fees. The state registrar shall index all records thus received and shall, when applied to, issue a certified copy of the same which shall be prima facie evidence in all courts and places of the facts stated therein, and for which he shall receive a fee of one dollar. He shall keep an accurate account of all fees received from the probate judges and all other sources and turn mme over to the state treas urer not' later than the 15th day of each month, and shall file with the state auditor a complete statement thereof. The fees thus collected and turned over to the state treasurer shall be used for the maintenance of the central division of vital statistics and the auditor is authorized to draw his warrants against such funds upon vouchers properly itemized and sworn to for the payment of all salaries, necessary traveling, office and other expenses: Provided, That the amount so drawn shall not exceed the amount collected and turned in to the stare treasurer under the provisions of this act. [L. 1913, ch. 224, § 6; April 30; R. s. 1923, § 23-110.] 23·111. Penalty for violating §§ 23-105 to 23-111. Any probate judge or person authorized by law to perform the marriage ceremony in this state who shall fail to comply with any of the provisions of this act shall be deemed guilty of a misdemeanor and upon conviction thereof shall be punished by a -5- fine of not more than one hundred dollars, and the county attorney of any county when presented with a statement of facts and circumstances shall forth with initiate and promptly follow up the necessary court proceedings against the parties responsible for the alleged violation of the law. [L. 1913, ch. 224, § 8; April 30; R. S. 1923, § 23-111.] ~3-1.1.~. Copy of license and return by probate judge; fees. The pro bate judge shall keep a correct copy of all marriage licenses by him issued in a book to be provided for that purpose, together with a copy of the return, endorsed on such license by the person performing the marriage ceremony, and shall be entitled to receive the sum of one dollar for the same, to be paid by the parties applying for the same. [L. 1867, ch. 84, § 6; May 27; G. S. 1868, ch. 61, § 6; R. S. 1923, § 23-112.] ~3-1.1.3. Penalty for refusal to issue marriage license or to record copy of license and return. If any probate judge shall refuse or neglect to issue any marriage license to any person legally entitled thereto on applying for the same, or shall neglect to record a copy of such license on the return endorsed thereon within thirty days after such return, he shall be deemed guilty of a misdemeanor, and shall be fined in any sum not exceeding one thousand dol lars, to be recovered with costs for the use of the county. [L. 1867, ch. 84, § 7; May 27; G. S. 1868, ch. 61, § 7; R. S. 1923, § 23-113.] ~3-1.1.4. Proof of relationship of parties; penalty for granting license to parties not entitled without examination. In ali cases, before granting a marriage license the probate judge shall require the applicant for such license to take and subscribe to an oath to the effect that none of the reasons set forth in section 2 [23-102] of this act exist why such applicant should not be granted a marriage license; and the probate judge may in his discretion examine wit nesses under oath concerning the matters referred to in section 2 [23-102] of this act, as applied to the applicant for such-marriage license, and for the pur pose of this act shall have power to administer oaths. If the probate judge fail to examine sucH applicant for license as provided in this section, he shall be liable to fine for granting license to parties not legally entitled thereto, in any sum not exceeding one thousand dollars, to be recovered by indictment or information, with cost. [L. 1867, ch. 84, § 8; G. S. 1868, ch. 61, § 8; L. 1886, ch. 124, § 1; Feb. 27; R. S. 1923, § 23-114.] ~3-1.1.5. Validity of marriages contracted without state. All marriages contracted without this state, which would be valid by the laws of the country in which the same were contracted, shall be valid in all courts and places in this state. [L. 1867, ch. 84, § 9; May 27; G. S. 1868, ch. 61, § 9; R. S. 1923, § 23-115.] ~3-1.1.6. Who authorized to perform ceremony; return. Every judge, justice of the peace, or licensed preacher of the gospel, twenty-one years of age or older, may perform the marriage ceremony in this state, and shall certify over his proper signature on the back of the license the fact of such marriage and the date thereof, and shall cause such license to. be returned to the probate judge of the proper county within thirty days: Provided, All marriages solemnized among the society called Friends, m· Quakers, in the form heretofore practiced and in use in their meetings, shall be good and valid, and shall not be construed as affected by any of the foregoing provisions of this act: And provided further, That all marriages -6- heretofore solemnized in this state by said society, in accordance with said forms and usage, are hereby declared legal and valid. (G. S. 1935, § 23- 116; L. 1945, ch. 196, § 1; June 28.) 23·116a. Same; penalty for Yiolation. It shall be unlawful for any person under the age of twenty-one years of age to perform the marriage ceremony in this state. Any person violating the provisions of this act shall be deemed guilty of a misdemeanor, and upon conviction thereof shall be punished by a fine of not more than one hundred dollars or by imprison ment in the county jail for not more than six months or by both such fine and imprisonment. (L. 1945, ch. 196, § 2; June 28.) · 23·117. Records or copies as eYidence. The books of record of mar riage licenses issued, to be kept by the probate judges of· the several counties, and copies of entries therein, certified by such judge under his official seal, shall be evidence in all courts. [L. 1867, ch. 84, § 11; May 27; G. S. 1868, ch. 61, § 11; R. S. 1923, § 23-117 .] 23·118. Unlawful cohabitation; penalty. That any persons living to gether as man and wife within this state without being married shall be deemed guilty of a misdemeanor, and on conviction thereof shall be fined in a sum not less than five hundred nor more than one thousand dollars, or be im prisoned in the county jail not less than thirty days nor more than three months. [L. 1867, ch. 84, § 12; May 27; G. S. 1868, ch. 61, § 12; R. S. 1923, § 23-118.] 23·119. Clerks to deliver records to probate judges. It shall be the duty of the several county clerks of this state to deliver to the judge of pro bate of the proper county all records of marriages in their office, within thirty days after taking effect of this act. [L. 1867, ch. 84, § 13; May 27; G. S. 1868, ch. 61, § 13; R. S. 1923, § 23-119.] 23·120. Marriage of epileptics or insane or feeble-minded persons. No woman under the age of forty-five years, or man of' any age, except he marry a woman over the age of forty-five years, either of whom is epileptic, imbecile, feeble-minded or afflicted with insanity, shall hereafter intermarry or marry any other person within this state. It shall be unlawful for any person to marry any such feeble-minded, imbecile or epileptic person, or anyone afflicted with insanity. Children born after a parent was insane shall not man-y except under the above-named conditions, unless the parent or parents of such children shall have been discharged from the state hospital for insane or any other legally constituted institution for the treatment of the insane more than nine months before the birth of the child, as cured and remained cured for a period· of twenty years after such discharge. [L. 1903, ch. 220, § 1; L. 1915, ch. 239, § 1; L. 1919, ch. 230, § 1; June 17; R. S. 1923, § 23-120.] 23·121. Issue of license to such persons. No officer authorized by law to issue marriage licenses in this state shall hereafter issue such a license to any persons either of whom is afflicted with any of the diseases mentioned in section 1 [23-120] of this act, knowing them to be so afflicted, unless the female party to such marriage is over the age of forty-five years, but said officer shall in all cases ask of the party applying for a marriage license and require him to make answer thereto in writing under oath to the following question: Have you or has the person you are expecting to marry ever been afflicted .with
-7- epilepsy, imbecility, feeble-mindedness, or insanity? [L. 1903, ch. 220, § 2; L. 1919, ch. 230, § 2; June 17; R. S. 1923, § 23-121.] 23·122. Performing ceremony in such cases. No clergyman or officer authorized by law to solemnize marriages within this state shall hereafter per form a marriage ceremony uniting persons in matrimony either of whom is affiicted with epilepsy, imbecility, feeble-mindedness, or insanity, knowing them to be so afflicted, unless the female party to such marriage is over the age of forty-five years. [L. 1903, ch. 220, § 3; June 1; R. S. 1923, § 23-122.] 23·123. Penalty for violating §§ 23-120 to 23-123. Any person knowingly violating any of the provisions of this act shall upon conviction thereof be punished by a fine of not more than one thousand dollars, or by imprisonment in the state's prison for not more than three years, or by both such fine and imprisonment. [L. 1903, ch. 220, § 4; June 1; R. S. 1923, § 23-123.] 23·124. Children of a marriage, voidable or void in law, legitimate. All children heretofore or who may be hereafter born the issue of a marriage shall be deemed and considered as legitimate although the marriage may be voidable or void for some reason in law. [L. 1935, ch. 221, § 1; March 19.] Article 2.-MARRIED WOMEN 23·201. Separate property of married woman. The property, real and personal, which any woman in this state may own at the time of her marriage, and the rents, issues, profits or proceeds thereof, and any real, personal or mixed property which shall come to her by descent, devise or bequest, or the gift of any person except her husband, shall remain her sole and separate property, notwithstanding her maJTiage, and not be subject to the disposal of her husband or liable for his debts. [G. S. 1868, ch. 62, § 1; Oct. 31; R. S. 1923, § 23-201.] 23·202. Conveyances and contracts concerning property. A married woman, while the mlJ.rriage relation subsists, may bargain, sell and convey her real and personal property and enter into any contract with reference to the same in the same manner, to the same extent and with like effect as a married man may in relation to his real and personal property. [G. S. 1868, ch. 62, § 2; Oct. 31; R. S. 1923, § 23-202.] 23·203. Sue and be sued. A woman may, while married, sue and be sued, in the same manner as if she were unmarried. [G. S. 1868, ch. 62, § 3; Oct. 31; R. S. 1923, § 23-203.] 23·204. Married woman may carry on trade or business; earnings. Any married woman may carry on any- trade or business, and perform any labor or services, on her sole and separate account; and the earnings of any married woman from her trade, business, labor or services shall be her sole and separate property, and may be used and invested by her in her own name. [G. S. 1868, ch. 62, § 4; Oct. 31; R. S. 1923, §23-204.] 23·205. Loss or impairment of services, right of action; rights of hus band. That where, through the wrong of another, a married woman shall sus tain personal injuries causing the loss or impairment of her ability to perform services, the right of action to recover damages for such loss or impairment shall vest solely in her, and any recovery therefor, so far as it is based ppon the loss or impairment of her ability to perform services in the household and
-8- in the discharge of her domestic duties, shall he ior the benefit of her husband so far as he shall be entitled hereto: Provided, however, That nothing herein shall in any way affect the right of the husband to recovel' damages for the wrongful death of his wife. [L. 1921, ch. 177, § 1; May 25; R. S. 1923, § 23-205.] 23·206. Rights of woman married out of state. Any woman who shall have been married out of this state, shall, if her husband afterwards becomes a resident of this state, enjoy all the rights as to property which she may l1ave acquired by the laws of any other state, territory or country, or which she may have acquired by virtue of any marriage contract or settlement made out of this state. [G. S. 1868, ch. 62, § 5; Oct. 31; R. S. 1923, § 23-206.] 23·207. Marriage settlements or contracts. Nothing in this act con tained shall invalidate any marriage settlement or contract now made or to be hereafter made. [G. S. 1868, ch. 62, § 6; Oct. 31; R. S. 1923, §23-207.] Article 3.-PREMARITAL EXAMINATION AND TEST 23·301. Certificate of premarital examination must be filed before marriage license issued; contents; examination, by whom made. Before any probate judge shall issue a marriage license, each applicant therefor shall file with him a certificate signed by a physician legally qualified under the laws of the state of Kansas or of the state of the applicant's residence, which certificate shall state that the applicant has been given an examination, in cluding a standard serological test for the discovery of syphilis, made not more than thirty days prior to the date of the i8Suance of such license, and stating whether or not in the opinion of the physician making such certificate, the applicant is infected with syphilis Ol' shows symptoms indicating infection with othel' venereal disease, and, if so infected, further stating whether or not in his opinion the disease is in a stage which is or may become com municable to a marital partner. Said certificate shall also show whether or not in the opinion of such physician the applicant is feeble-minded. Any person who by law is legally able to obtain a marriage license in this state shall also be legally able to give his consent to an examination and test re quired by this act. Any specimen submitted to a laboratory for serological test under the provisions of this act ~ -10- 23•306. District court may order issuance of marriage license, when; copy of order sent to state board of health; order filed with probate judge. In any case where such examinations and tests have been made and certificate or certificates have been issued and filed pursuant to this act and a marriage license refused. becatise one or both of the applicants have been found to be infected with venereal disease, or have not been found to be free from syphilis, the judge of the district court in the county in which the license is to be issued shall nevertheless be authorized and empowered on application of both parties to such marriage to order the probate judge to issue the license, if all other requirements of the marriage laws have been complied with and if the district judge is satisfied and shall find from the record, by affidavit or other proof, that an emergency or other sufficient cause for such order exists and that the interests of the parties will be better served and the public health and welfare will not be injuriously affected thereby. In every such case, how ~ver, the clerk of the district court shall transmit to the Kansas state board of health a certified copy of the order thereon for such followup by said board as if required by law or deemed necessary by said board for the protection of the public health. The order of the court shall be filed with the probate judge, who shall thereupon issue such marriage license. All proceedings instituted under the provisions of this section shall be confidential and private, except as hereinafter provided. No court costs or fees shall be charged or collected in any proceedings under the provisions of this section. 23·307. Certain acts unlawful; penalties. Any applicant for a mar riage license, physician, any person in charge of or authorized to make such reports or statements for a laboratory, or any other person who shall mis represent his identity or any of the facts called for by or set out in the cer tificate form prescribed by this act; or elicited in any hearing before a district judge as provided for in this act or any probate judge who shall issue a marriage license in violation of any of the provisions of this act, or who shall have reason to believe that any of the facts on the certificate forni are untrue or have been misrepresented, and shall nevertheless issue a marriage license; or any person who shall otherwise violate or fail to comply with the provisions of this act shall be guilty of a misdemeanor, and, upon conviction, shall be fined not less than one hundred dollars nor more than five hundred dollars. 23·308. Certificates, laboratory reports, applications, etc., confi dential; penalties for violations. Certificates, laboratory statements or re ports, applications and court orders, files and records, in this act referred to and the information therein contained, other t.han the marriage license and the ap plication therefor, shall be confidential and shall not be divulged to or open to inspection by any person other than state or local health officers or their duly authorized representatives, except by written permission of the party or parties affected. Any person who shall divulge such information or open to in spection such certificates, statements, reports, applications or court orders, with out authority, to any person not by law entitled to the same shall be guilty of a misdemeanor, and, upon conviction, shall be fined not less than one hundred dollars nor more than five hundred dollars. · 23·309. Constitutionality. If any part or parts of this act shall be held to be unconstitutional by any court, it shall be conclusively presumed that the . -11- legislature would have pa~sed this act without such invalid part or parts. [L. 1947, ch. 241; June 30.] NoTE :-A marriage license obtained on or prior to the expiration of the old law, and without serological examinations is valid on and subsequent to the effective date of the new laws (23-106 and 23-301); and any persons having obtained such a valid license on or prior to the expiration date of the old law, may be manied at any time on or subsequent to the effective date of the new laws without a serological examination. In other words, persons may be mar ried after the new laws take effect by presenting a marriage license properly obtained under the old law. See opinion of attorney general, June 17, 1947. -12- DIVORCE AND ALIMONY Chapter 60, Article 15, G. S. 1936 60•1.501.. Grounds for divorce. The district court may grant a divorce for any of the following causes: First, when either of the parties had a former husband or wife living at the time of the subsequent marriage. Second, abandonment for one year. Third, adultery. Fourth, impotency. Fifth, when the wife at the time of marriage was pregnant by another than her husband. Sixth, extreme cruelty. Seventh, fraudulent contract. Eighth, habitual drunk enness. Ninth, gross neglect of duty. Tenth, the conviction of a felony and imprisonment therefor subsequent to the marriage. Eleventh, insanity for a period of five years, the insane person having been an inmate of any state or federal institution for the insane, or of a private sanitarium, and affected with any incurable type of insanity: Provided, That no divorce shall be granted be cause of insanity until after a thorough examination of such insane person by three physicians who are recognized authorities on mental diseases, one of which physicians shall be a superintendent of a state hospital for the insane and the other two physicians to be appointed by the court before whom the action is pending, all of whom shall agree that such insane person is incurable: Pro vided further, however, That no divorce shall be granted on this ground to any person whose husband or wife is an inmate of a state institution in any other than the state of Kansas, unless the person applying for such divorce shall have been a resident of the state of Kansas for at least five years, prior to the com mencement of an action: And provided further, That a decree granted on this ground shall not relieve the successful party from contributing to the support and maintenance of the defendant. (G. S. 1935, 60-1501; L. 1939, ch. 232, § 1; June 30; L. 1947, ch. 318; June 30.) 60·1.502. Residence of plaintiff. The plaintiff in an action for divorce must have been an actual resident in good faith of the state for one year next preceding the filing of the petition, and a resident of the county in which the action is brought at the time the petition is filed, unless the action is brought in the county where the defendant resides or may be summoned: Provided, That any person who has been a resident of any United States army post or military reservation within the state of Kansas for one year next preceding the filing of the petition may bring an action for divorce in any county adjacent to said United States army post or military reservation. [L. 1909, ch. 182, § 664; R. S. 1923, § 60-1502; L. 1933, ch. 216, § 1; June 5.] 60•1.503. Same; wife deemed resident though husband not. A wife who resides in this state at the time of applying for a divorce shall be deemed a resident of this state, though her husband resides elsewhere. [L. 1909, ch. 182, § 665; May 29; R. S. 1923, § 60-1503.] 60•1.504. Petition must be verified; summons or publication; affidavit when residence is unknown. The petition must be verified as true, by the affidavit of the plaintiff. A summons may issue hereon, and shall be served, or publication made, as in other cases. When service by publication is proper, a copy of the petition, with a copy of the publication notice attached thereto, -13- shall within three days after the first publication is made be enclosed in an envelope addressed to the defendant at his or her place of residence, postage paid, and deposited in the nearest post office, unless the plaintiff shall make and file an affidavit that such residence is unknown to the plaintiff, and cannot be ascertained by any means within the control of the plaintiff. [L. 1909, ch. 182, § 666; May 29; R. S. 1923, § 60-1504.] 60·1505. Answer of defendant; allegations; new matter to be verified. The defendant in his or her answer may allege a cause for a divorce against the plaintiff, and may have the same relief thereupon as he or she would be entitled to for a like cause if he or she were plaintiff. When new matter is set up in the answer, it shall be verified as to such new matter by the affidavit of the defendant. [L. 1909, ch. 182, § 667; May 29; R. S. 1923, § 60-1505.] 60·1506. Parties in equal wrong; orders concerning children and property; effect of division of property. When the parties appear to be in equal wrong, the court may in its discretion refuse to grant a divorce, and in any such case or in any other case where a divorce is refused, the court may for good cause shown make such order as may be proper for the custody, maintenance and education of the children, and for the control and equitable division and disposition of the property of the parties, or of either of them, as may be proper, equitable and just, having due regard to the time and manner of acquiring such property, whether the title thereto be in either or both of said parties, and in such case the order of the court shall vest in the parties a fee-simple title to the property so set apart or decreed to them, and each party shall have the right to convey, devise and dispose of the same without the con sent of the ot.her. [L. 1909, ch. 182, § 668; May 29; R. S. 1923, § 60-1506.] 60·1507. Interlocutory orders; temporary alimony, costs and at torney's fees; probate judge may act, when. After a petition has been filed in an action for divorce and alimony, or for alimony alone, the court, or the judge thereof in vacation, may make without bond, and enforce by attachment, such order to restrain the disposition of the property of the parties or either of them, and for the use, management and control thereof, or for the control of the children and support of the wife or the wife and children, during the pend ency of the action, as may be right and proper, and may make such order relative to the expenses of the suit as will insure to the wife an efficient prepa ration of her case; and on granting a divorce in favor of the wife or refusing of the application of her husband, the court may require the husband to pay such reasonable expenses of the wife in the prosecution or defense of the action as may be just and proper, considering the respective parties and the means and property of each. And in the absence of the judge of the district court from the county, or in case the judge of the district court is disqualified by interest or prevented by sickness, the probate judge may make without bond such order to restrain the disposition of the property of the parties, or either of them, and for the use, management and control thereof, or for the control of the children and support of the wife or the wife and children during the pendency of the action, and m~y in case the judge of the district court ia dis qualified by interest, prevented by sickness or absent from the county, modify or vacate such order from time to time as may be proper: Provided, however, That nothing in this act shall be construed to authorize the probate judge to -14- vacate or modify any order issued as in the act provided by the district court or the judge thereof. Any order issued by the probate judge as provided for in this act shall be of the same effect as a like order made by the judge of the district court. [L. 1909, ch. 182, § 669; L. 1919, ch. 236, § 1; June 17; R. S. 1923, § 60...1507.] 60·1.508. Evidence; admissions; cohabitation. Upon the trial of an action for a divorce, or for alimony, the court may admit proof of the admis sions of the parties to be received in evidence, carefully excluding such as shall appear to have been obtained by connivance, fraud, coercion or other improper means. Proof of cohabitation, and reputation of the marriage of the parties, may be received as evidence of the marriage. But no divorce shall be granted without proof. [L. 1909, ch. 182, § 670; May 29; R. S. 1923, § 60-1508.] 60·1509. Husband and wife competent witnesses; corroborating testi mony required. In all actions for divorce or alimony, or for both divorce and alimony, hereafter to be tried, the parties thereto, or either of them, shall be competent to testify upon all material matters involved in the controversy to the same extent as other witnesses might do: Provided, lwwever, That nothing in this act shall be construed as authorizing the granting of a decree of divorce upon the uncorroborated testimony of either husband or wife, or both of them. [L. 1909, ch. 182, § 671; May 29; R. S. 1923, § 60-1509.] 60·l.5l.O. Provision for minor children. When a divorce is granted the court shall make provision for the guardianship, custody, support and education of the minor children of the marriage, and may modify or change any order in this respect whenever circumstances render such change proper. [L. 1909, ch. 182, § 672; May 29; R. S. 1923, § 60...1510.] 60·l.5l.l.. Restoration of maiden name and property of wife; per manent alimony; division of property. When a divorce shall be granted by reason of the fault or aggression of the husband, the wife shall be restored to her maiden or former name if she so desires, and also to all the property, lands, tenements, hereditaments owned by her before. her marriage or acquired by hei· in her own right after such mardage, and not previously disposed of, and shall be allowed such alimony as the court shall think reasonable, having due regard to the property which came to him by marriage and the value of his real and personal estate at the time of said divorce; which a.Jimony may be allowed to her in real or personal property, or both, or by decreeing to her such sum of money, payable either in gross or in installments, as the court may deem just and equitable. If the divorce shall be granted by reason of the fault or agres sion of the wife, the court shall order restoration to her of the whole of her property, lands, tenements and hereditaments owned by her before, or by her separately acquired after such marriage, and not previously disposed of, and also the court may award the wife such share of her husband's real and personal property, or both, as to the court may appear just and reasonable; and she shall be barred of all right in all the remaining lands of which her husband may at any time have been seized. And to such property, whether real or personal, as shall have been acquired by the parties jointly during their marriage, whether the title thereto be in either or both of ::;aid parties, the court shall make such division between the parties respectively as may appear just· and reasonable, by a division of the property in kind, or by setting t.he same apart to one of the parties, and requiring the other thereof to pay such sum as may -15- be just and proper to effect a fair and just division thereof. But in case of a finding by the court, that such divorce should be granted on account of the fault or aggression of the wife, the comt may in its discretion set apart such a portion of the wife's separate estate as may seem proper for the support of the children, issue of the marriage. When a divorce shall be granted on account of the fault or aggression of the wife, the wife may be restored to her maiden or former name. [G. S. 1935, § 60-1511; L. 1941, ch. 285, § 1; June 30.] 60·1512. Effect of decree of divorce; appeal, notice; remarriage within six months unlawful, void and bigamous. A divorce granted at the instance of one party shall operate as a dissolution of the marriage contract as to both, and shall be a bar to any claim of the party for whose fault it was granted in or to the property of the other, except in cases where actual fraud shall have been committed by or on behalf of the successful party. Every judgment of divorcement granted by a district court shall be final and con clusive, unless appealed from within the time and in the manner herein pro vided. A party desiring to appeal from a judgment granting a divorce must within ten days after such judgment is rendered file a written notice in the offi,ce of the clerk of such comt, duly entitled in such action, stating that it is the intention of such party to appeal from such judgment; and unless such notice be filed no appeal shall be had or taken in such cause. If notice be filed as aforesaid, the party filing the same may commence proceeding on ap peal for the reversal or modification of such judgment at any time within four months from the date of the decree appealed from, and not thereafter; but whether a notice be filed as herein provided, or not, or whether an appeal be commenced as herein provided, or not, it shall be unlawful for either party to such divorce suit to marry any other person within six months from the date of the decree of divorcement; and if notice be filed and an appeal be com menced as hereinbefOl'e provided, then it shall be unlawful for either party to such cause to marry any other person until the expiration of thirty days from the day on which final judgment shall be rendered by the appellate court on such appeal; and every person marrying contrary to the provisions of this sec tion shall be deemed guilty of bigamy, and such marriage be absolutely void. [L. 1909, ch. 182, § 674; May 29; R. S. 1923, § 60-1512.] 60·1513. Penalty for bigamy under § 60-1512. Every person convicted of bigamy as such offense is defined in the foregoing section shall be punished by imprisonment in the penitentiary for a term of not less than one year nor more than three years. [L. 1909, ch. 182, § 675; May 29; R. S. 1923, § 60-1513.] 60·1514. Recital in decree of date effective. Every decree of divorce shall recite the day and date when the judgment was rendered in the cause, and that the decree does not become absolute and take effect until the expiration of six months from said time. [L. 1909, ch. 182, § 676; May 29; R. S. 1923, § 60-1514.] 60·1515. Void marriages. When either of the parties to a marriage shall be incapable, from want of age or understanding, of contracting such marriage, the same may be declared void by the district court, in an action brought by the incapable party; but the children of such a marriage, begotten before the sam'e is annulled, shall be legitimate. Cohabitation after such incapacity ceases shall be sufficient defense to any such action. [L. 1909, ch. 182, § 677; May 29; R. S. 1923, § 60-1515.] -16- 60•1516. Action for alimony only; defense of husband; divorce granted, when. The wife may obtain alimony from the husband without a divorce, in an action brought for that purpose in the district. court, for any of the causes for which a divorce may be granted. The husband may make the same defense to such action as he might to an action for divorce, and may, for sufficient cause, obtain a divorce from the wife in such action. [L. 1909, ch. 182, § 678; May 29; R. S. 1923, § 60-1516.] 60•1517. Time for hearing divorce case; emergency. No hearing shall be had in a divorce suit until at least sixty days after the filing of the petition, unless the court shall enter upon the records an order declaring an emergency, the precise nature of which shall be specifically stated in such order, together with the substance of the e1•idence upon which it was based, and the names of the witnesses who gave such evidence. [L. 1913, ch. 234, § 4; April 30; R. S. 1923, § 60-1517.] 60·1518. Divorce rendered in another state recognized; proceedings as to alimony and property rights of residents of l(ansas, limitation. A judgment or decree of divorce rendered in any other state or territory of the United States, in conformity with the laws thereof, shall be given full faith and credit in this state; except, that in the event the defendant in such action, at the time of such judgment or d~cree, was a resident of this state and had not been served personally with process, or did not personally appear or defend the action in the court of such state or territory, all matters relating to alimony, and to the property rights of the parties and to the custody and maintenance of the minor children of the parties, shall be subject to inquiry and determina tion in any proper action or proceeding brought in the courts of this state within two years after the date of the foreign judgment or decree, to the oame extent as though the foreign judgment or decree had not been rendered. [L. 1907, ch.184, § 1; R. S. 1923, § 60-1518; L. 1935, ch. 220, § 1; Feb. 11.] 60•1519. Detailed statement of facts to be omitted from pleadings; bill of particulars. That in all actions for divorce, or for alimony, or for both divorce and alimony, the petition or cross petition shall allege the causes relied upon as nearly as possible in the language of the statute (G. S. Supp. 60-1501), and without detailed statement of facts. If the opposing party desires a state ment of facts relied upon the same shall be furnished to him by the petitioner or cross-petitioner in a bill of particulars. A copy of this bill of particulars shall be furnished to the court and shall constitute the specific facts upon which the action is tried. The statements therein shall be regarded as being denied by the adverse party, except as they may be admitted. The bill of particulars shall not be filed with the clerk of the district court, nor become a part of the records of such court, but if the action be appealed, and the question sought to be reviewed relate to the facts set forth in the bill of particulars, it shall be embodied in the abstract for the supreme court. [L. 1935, ch. 219, § 1; May 15.] 60•1520. Section 60-1519 supplemental to § 60-1501. This act is supple mental to section 60-1501 of the Revised Statutes of 1923. [L. 1935, ch. 219, §2; May 15.] Compiled by EDWARD F. ARN, Attorney General. -17- PRINTED BY FERO VOlLAND, JR., STATE PRINTER TOPEKA, KANSAS 1947 ~ 21-8298