McKenzie, J.c.c., Temporarily Assigned.
Plaintiff sues for divorce under N.J.S.A. 2A:34-2(d) which defines the cause of action as:
Separation, provided that the husband and wife have lived separate and apart in different habitations for a period of at least 18 or more consecutive months and there is no reasonable prospect of reconciliation: provided, further that after the 18-month period there shall be a presumption that there is no reasonable prospect of reconciliation. [hereinafter referred to as subsection (d)]
Defendant did not answer or appear.
Plaintiff wife testified that the parties were living together in Newark, New Jersey, on October 15, 1969, when he was arrested and jailed for armed robbery. Although he was subsequently released for a short period pending trial, he has never returned to live with her since that date. Defendant was convicted of the charges and is presently serving a sentence in the New Jersey State Prison.
Plaintiff argues that the cause of separation is immaterial and the above facts alone entitle her to a divorce. If plaintiff's position is well founded, then the question arises as to what effect is to be given to N.J.S.A. 2A:34-2(g) which provides the right to a divorce based on
Imprisonment of the defendant for 18 or more consecutive months after marriage, provided that where the action is not commenced until after the defendant's release, the parties have not resumed cohabitation following such imprisonment [hereinafter referred to as subsection (g)]
Similarly, if all separations of 18 months' duration are cognizable under subsection (d), then it follows that where a spouse is institutionalized for a mental illness, a cause of action for divorce arises at the end of 18 months, and one need not wait for the expiration of the 24-month period specified in N.J.S.A. 2A:34-2(f):
Institutionalization for mental illness for a period of 24 or more consecutive months subsequent to marriage and next preceding the filing of the complaint. [hereinafter referred to as subsection (f)]
The interrelationship of these provisions of our new divorce law has not been dealt with in any previously reported case. See note in 25 Rutgers L. Rev. 476, at 482-484.
It is suggested in the report of the Study Commission submitted to the Legislature prior to the adoption of the new divorce law that subsections (f) and (g) were desirable to prevent a narrow judicial construction of subsection (d) which might limit the granting of divorces under that subsection to those separations which are voluntary in nature. N.J. Divorce Law Study Commission Final Report (May 11, 1970), at 74. The Study Commission report points out (at 113-137) that many states which have adopted a period of separation as a cause of action for divorce have specified that the separation must be ...