MARRIAGE 99 The guilty party to a divorce is, after judicial sentence, penalized by loss of all the advantages of the marriage, whether arising from community of goods or from ante- nuptial contract.^ Judicial separation a mensa et thoro is decreed by the Separa- Court on the groimd of cruelty or for other sufficient mensa et cause.^ The result is to relieve the parties from the per- thoro. sonal consequences of marriage, but not to dissolve the marriage tie. As regards the effect of such a decree upon the proprietary rights of the spouses the Dutch authorities are by no means agreed.^ In the modern practice the matter is very much in the discretion of the Court. An order is usually made, if asked for, directing a division of the common estate, or a rescission of an ante-nuptial con- tract which confers a benefit on the guilty spouse, condi- tionally, however, on the innocent spouse renouncing any corresponding advantage. The effect of such a decree is to dissolve the community, and to free each spouse from liability for the other's debts subsequently contracted.* Further, in the event of the husband's insolvency the wife ranks as a preferred creditor for half of the common estate.^ A decree of alimony to the wife lies in the discretion of the Court.® A decree of nuUity of marriage '^ is granted : (1) when Decree of the parties have married within the prohibited degrees ; Carriage. (2) at the suit of a parent when minors have married without the necessary consent ; (3) in case of impotency
Van Leeuwen, 4. 24. 10 ; V. d. K. Th. 88 ; Celliers v. Celliers
[1904] T. S. 926. But the Court will not deprive the guilty party of the share of the joint' estate which he or she may have contributed. Ibid.
Gr. 1. 5. 20 ; Van Leeuwen, 1. 15. 3 ; Voet, 24. 2. 16. Schorer ad Gr. 1. 5. 20 ; Voet, 24. 2. 17 ; V. d. K. Th. 90. As to
the effect, if any, of separation by mutual consent, see Schorer uhi sup. ; Voet, 24. 2. 18 ; and for South African Law 1 Maasdorp, p. 76.
- 1 Maasdorp, p. 77.
Luzmoor v. Luzmoor [1905] T. H. 74. ' To ascertain what this
half share amounts to, the debts of the common estate up to the date of the order of the Court must, of course, be first deducted, and she will be entitled to half of what remains.' Per Smith J.
Voet, 24. 4. 18.
' Voet, 24. 2. 15.
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