Clapp, Jayne and Francis. The opinion of the court was delivered by Jayne, J.A.D.
The earliest English decisions relative to the legal effect of the willful refusal of matrimonial intercourse emanated from actions for the restitution of conjugal rights in the ecclesiastical courts. Forster v. Forster , 1 Hag. Cons. Cas. 144 (1790), was perhaps the first.
In Gill v. Gill (1823, unreported, but referred to in the report of Orme v. Orme , 2 Addams 382), the court ordered the husband "to take his wife home and treat her with conjugal affection."
It was soon realized that the courts could enforce cohabitation but could not control the use of the bed.
Recently, in Weatherley v. Weatherley, A.C. 628 (1947), the House of Lords decided that the mere refusal by a husband or wife to have sexual intercourse with the other, however willful and unjustified, cannot of itself amount to desertion.
In Scotland, for example, where the law of divorce is older than in England, the authorities seem to hold that the willful abstention does constitute desertion.
Since the decision in Raymond v. Raymond reported in 79 A. 430 (Ch. 1909), it has become well established in this State that the unjustified refusal of sexual intercourse persisted in willfully, continuously, and obstinately by a spouse for a period of two years constitutes a ground for the dissolution of the marriage for the cause of desertion. This chronological assemblage of decisions reveals the variety of factual circumstances with which our courts have been concerned in such cases: Rector v. Rector , 78 N.J. Eq. 386 (Ch. 1911); Parmly v. Parmly , 90 N.J. Eq. 490 (Ch. 1919); Horwath v. Horwath , 91 N.J. Eq. 435 (Ch. 1920); McLain v. McLain , 91 N.J. Eq. 530 (E. & A. 1920); Wood v. Wood , 97 N.J. Eq. 1 (Ch. 1925); Rupp v. Rupp , 97 N.J. Eq. 201 (Ch. 1924); Haskell v. Haskell , 99 N.J. Eq. 399
(E. & A. 1926); Johnson v. Johnson , 102 N.J. Eq. 550 (E. & A. 1928); Hausle v. Hausle , 104 N.J. Eq. 230 (Ch. 1929); Verro v. Verro , 104 N.J. Eq. 364 (Ch. 1929); Gilson v. Gilson , 113 N.J. Eq. 32 (E. & A. 1933); Becker v. Becker , 113 N.J. Eq. 286 (Ch. 1933); Haviland v. Haviland , 114 N.J. Eq. 96 (E. & A. 1933); Langille v. Langille , 119 N.J. Eq. 12 (E. & A. 1935); Pierson v. Pierson , 119 N.J. Eq. 19 (E. & A. 1935); Rains v. Rains , 127 N.J. Eq. 328 (E. & A. 1940); Munger v. Munger , 130 N.J. Eq. 279 (E. & A. 1941); Kreyling v. Kreyling , 20 N.J. Misc. 52 (Ch. 1942); Ullrich v. Ullrich , 26 N.J. Misc. 333 (Ch. 1947); affirmed 142 N.J. Eq. 734 (E. & A. 1948); Franklin v. Franklin , 140 N.J. Eq. 127 (E. & A. 1947); Tucker v. Tucker , 142 N.J. Eq. 687 (E. & A. 1948); Sabia v. Sabia , 16 N.J. Super. 273 (App. Div. 1951); Streader v. Streader , 18 N.J. Super. 433 (App. Div. 1952).
Causes of action of this nature are naturally difficult to establish. The plaintiff must assume the burden of proving that the defendant's refusal to engage in such marital relations has been continued, willful, and obstinate.
In these cases it is very often acknowledged that the parties have during the period of the alleged desertion or during a greater part thereof cohabited in the same house, or occupied the same bedroom and, indeed, the same bed. As early as 1861 Chancellor Green in Marsh v. Marsh , 13 N.J. Eq. 281, 285, stated: "The general presumption is that husband and wife, living in the same house, live on terms of matrimonial cohabitation." Vide , also, Stieglitz v. Stieglitz , 92 N.J. Eq. 292 (E. & A. 1920); McCabe v. McCabe , 129 N.J. Eq. 431 (E. & A. 1941); Franklin v. Franklin, supra; Tucker v. Tucker, supra.
And then, too, all uncertainties of fact are resolved against the plaintiff. Sheeran v. Sheeran , 115 N.J. Eq. 75 (E. & A. 1934); Gordon v. Gordon , 89 N.J. Eq. 535 (E. & A. 1918).
No doubt the paramount difficulty in sustaining such a cause of action is the necessity of producing the required degree of corroboration ...