Griffin, J.c.c., Temporarily Assigned.
Plaintiff sued for separate maintenance for herself and the adopted child of the marriage pursuant to N.J.S.A. 2A:34-24. Defendant counterclaimed for visitation.
At the close of plaintiff's case defendant moved to dismiss. Decision was reserved until the completion of the trial.
The parties were married in January 1968. Jon was born on October 6, 1971 and thereafter adopted by the parties. On August 30, 1974 defendant husband returned from work to find his wife, child and most of the household furnishings gone.
The complaint did not allege, nor did plaintiff prove, any abandonment or separation by the husband.
The pertinent portion of N.J.S.A. 2A:34-24 states:
If a husband, without justifiable cause, shall abandon his wife or separate himself from her and refuse or neglect to maintain and provide for her, the court may order suitable support and maintenance to be paid and provided by the husband for the wife and her children, or any of them, by their marriage, or to be made out of his property and for such time as the nature of the case and circumstances of the parties render suitable and proper.
It has long been the law in this State that an action for separate maintenance cannot be sustained when the wife deserts the husband. Eldredge v. Eldredge , 38 N.J. Super. 509 (Ch. Div. 1955); Starkey v. Starkey , 21 N.J. Eq. 135 (Ch. 1870).
Plaintiff argues, however, that this law should be no longer applicable. The divorce reform act passed in 1971
(N.J.S.A. 2A:34-1 et seq.) permits alimony to a faulting spouse and recognizes a no fault ground for divorce.
In essence, plaintiff argues that the statute relating to separate maintenance suits (N.J.S.A. 2A:34-24) is repealed by implication by N.J.S.A. 2A:34-1 et seq.
The cases are legion which hold that repeal by implication is not favored. See New Jersey P.B.A. v. Morristown , 65 N.J. 160, 164 (1974), and cases cited therein. In the absence of an express repeal the indication of intention by the Legislature to repeal a prior act must be clear and compelling. A strong presumption exists against such intention. Loboda v. Clark Tp. , 40 N.J. 424, 435 (1963). The Legislature thoroughly ...