Ark. Code Ann. § 9-12-301 (2020)

Research References

ALR.

Homosexuality as ground for divorce. 96 A.L.R.5th 83.

What Amounts to Habitual Intemperance, Drunkenness, Excessive Drug Use, and the Like Within Statute Relating to Substantive Grounds for Divorce. 101 A.L.R.6th 455 (2015).

Ark. L. Rev.

Mutual Misconduct in Arkansas Divorces, 3 Ark. L. Rev. 132.

Mental Cruelty as Grounds for Divorce, 5 Ark. L. Rev. 419.

Case Note, Roark v. Roark: An Expansion of the Application of Estoppel to Prohibit the Collection of Child Support Arrearages, 45 Ark. L. Rev. 631.

U. Ark. Little Rock L.J.

Survey — Family Law, 14 U. Ark. Little Rock L.J. 799.

U. Ark. Little Rock L. Rev.

Matthew L. Brunson, Family Law—Providing for Those Who Cannot Provide for Themselves: A Proposal for the Arkansas General Assembly to Follow in the Footsteps of an Already Expansive Guardianship Law and Grant Guardians the Right to File for Divorce on Behalf of a Ward, 38 U. Ark. Little Rock L. Rev. 271 (2016).

Case Notes

Constitutionality.

The act amending this statute so as to allow divorce after separation for three consecutive years was legally passed and is retroactive. White v. White, 196 Ark. 29, 116 S.W.2d 616 (1938).

The act amending subdivision (b)(5) of this section so as to require that the husband and wife shall have lived separate and apart for three consecutive years (now 18 months) without cohabitation was not beyond the power of the legislature to enact. Jones v. Jones, 199 Ark. 1000, 137 S.W.2d 238 (1940) (decision prior to the 1991 amendments).

Act abolishing recrimination as a defense against three-year separation is not unconstitutional as impinging upon equity jurisdiction, since the court of equity has the right to grant divorces on grounds and conditions prescribed by the legislature. Young v. Young, 207 Ark. 36, 178 S.W.2d 994 (1944).

In General.

Where it appears that conditions between a husband and wife have become unendurable without any hope of amelioration and a preponderance of the evidence shows that the husband by his conduct is chiefly responsible, the wife is entitled to a divorce from the bonds of matrimony. Lemaster v. Lemaster, 158 Ark. 206, 249 S.W. 589 (1923).

Divorce is a statutory matter and the legislature has a right to establish the grounds and conditions of divorce. Young v. Young, 207 Ark. 36, 178 S.W.2d 994 (1944).

Adultery.

Where a husband sues his wife upon the ground of adultery, the alleged adultery cannot be proved by evidence tending to show that she had a general reputation for unchastity. Poe v. Poe, 93 Ark. 426, 124 S.W. 1029 (1910).

The charge of adultery may be sufficiently proved by evidence leading to an inference of guilt. While the circumstances need not be such that an inference of guilt is the only possible conclusion that can be drawn therefrom, the facts must be such as to lead a just and reasonable man to the conclusion of guilt; and they are not sufficient if they merely justify a suspicion of guilt in the absence of other incriminating circumstances. Leonard v. Leonard, 101 Ark. 522, 142 S.W. 1133 (1912).

Charges of adultery in a civil proceeding may be sufficiently proved by evidence of circumstances leading to an inference of guilt. Gibson v. Gibson, 234 Ark. 954, 356 S.W.2d 728 (1962).

Appeals.

Where divorce decree was granted under three-year (now 18-month) separation provision of this section, the wife's remarriage during the pendency of appeal did not estop her from appealing the grant of the divorce to the husband, the failure to award her alimony and the settlement of property rights. Neal v. Neal, 258 Ark. 338, 524 S.W.2d 460 (1975).

Although in divorce actions the Court of Appeals reviews chancery cases de novo, it does not disturb a chancellor's finding unless it is clearly against a preponderance of the evidence. Pomraning v. Pomraning, 13 Ark. App. 258, 682 S.W.2d 775 (1985).

Attorney's Fees.

The award of attorney's fees in divorce cases is a matter lying within the sound judicial discretion of the chancellor, the exercise of which will not be disturbed on appeal in the absence of its abuse. Lytle v. Lytle, 266 Ark. 124, 583 S.W.2d 1 (1979).

Chancery Court.

The chancery court has the power to decree separate maintenance to the wife. Gilliam v. Gilliam, 232 Ark. 765, 340 S.W.2d 272 (1960).

Chancery courts have the power to set aside a default divorce, even after the death of one of the parties, if property interests of the survivor are affected. Fair v. Fair, 232 Ark. 800, 341 S.W.2d 22 (1960).

Comparative Fault.

Where a husband sued for a divorce, and his wife cross-claimed for a limited divorce from bed and board and both the husband and wife were at fault, nevertheless, the wife was entitled to a limited divorce as the party less at fault, since her husband was the greater and first offender. Posey v. Posey, 268 Ark. 894, 597 S.W.2d 834 (Ct. App. 1980).

Cruelty.

Wife will not be granted a divorce on account of the cruelty of her husband in chastising her if she has given him serious provocation by her imprudent conduct. Shirey v. Shirey, 87 Ark. 175, 112 S.W. 369 (1908).

Profane and abusive language employed by a husband toward his wife will not constitute legal cruelty where it does not appear that her health was impaired or her condition rendered intolerable. Kientz v. Kientz, 104 Ark. 381, 149 S.W. 86 (1912).

Mere incompatibility of temperament or want of congeniality and the consequent quarrels causing unhappiness are not sufficient to constitute that cruelty which under the statute will justify divorce. Kientz v. Kientz, 104 Ark. 381, 149 S.W. 86 (1912); Disheroon v. Disheroon, 211 Ark. 519, 201 S.W.2d 17 (1947).

There must be proof of specific acts of cruelty. Dunn v. Dunn, 114 Ark. 516, 170 S.W. 234 (1914).

A husband is not entitled to a divorce on account of his wife's cruelty toward his children by a former wife where it appears that her cruelty is not habitual nor exercised with the intent of causing suffering to the husband. Poe v. Poe, 149 Ark. 62, 231 S.W. 198 (1921).

Evidence sufficient to find spouse entitled to a divorce on the ground of cruelty. Crabtree v. Crabtree, 154 Ark. 401, 242 S.W. 804 (1922).

There were grounds for a divorce based on cruel and barbarous treatment where husband lunged at wife through the window of her car, grabbed her neck, pushed her against the seat, and strangled her to the point that she could not breathe and felt as if she were choking. Rogers v. Rogers, 90 Ark. App. 321, 205 S.W.3d 856 (2005).

Divorce from Bed and Board.

A limited divorce is called divorce from bed and board in the statute; it is also known as divorce a mensa et thoro. Lytle v. Lytle, 266 Ark. 124, 583 S.W.2d 1 (1979).

The grounds on which a divorce from bed and board may be granted are the same as those specified for an absolute divorce. Lytle v. Lytle, 266 Ark. 124, 583 S.W.2d 1 (1979); Kesterson v. Kesterson, 21 Ark. App. 287, 731 S.W.2d 786 (1987).

The statutory remedy of limited divorce (divorce mensa et thoro) is available only on proof of one of the statutory grounds. Paulson v. Paulson, 8 Ark. App. 306, 652 S.W.2d 46 (1983).

Foreign Decree.

Decree for wife in husband's suit for divorce in another state charging habitual indulgence in violent and ungovernable fits of temper and extreme cruelty was held res judicata in subsequent suit in Arkansas charging indignities rendering husband's condition in life intolerable. Blauvelt v. Blauvelt, 199 Ark. 710, 136 S.W.2d 201 (1940).

Decree for wife in husband's suit for divorce in another state on grounds of ungovernable temper and extreme cruelty would not be res judicata in subsequent suit in Arkansas on ground of desertion if the desertion occurred after the adjudication of former action. Blauvelt v. Blauvelt, 199 Ark. 710, 136 S.W.2d 201 (1940).

Former adjudication in other states wherein the legal right created by this section was not available was held not res judicata in husband's suit for divorce. Goud v. Goud, 203 Ark. 244, 156 S.W.2d 225 (1941).

Where husband and wife lived separate and apart without cohabitation for more than three years, husband was entitled to a divorce on that ground notwithstanding former decree in favor of wife in separate maintenance suit in another state. Brickey v. Brickey, 205 Ark. 373, 168 S.W.2d 845 (1943).

Divorce, granted in Arkansas, was reversed, case dismissed and the parties remanded to state which granted a prior separate maintenance agreement for any orders for maintenance. Swanson v. Swanson, 212 Ark. 439, 206 S.W.2d 169 (1947).

Habitual Drunkenness.

One is addicted to habitual drunkenness who has a fixed habit of frequently getting drunk. Brown v. Brown, 38 Ark. 324 (1881).

To be a habitual drunkard within the meaning of this section, a person does not have to be constantly drunk nor incapacitated from doing business; it is sufficient if he has a fixed habit of frequently and repeatedly getting drunk when the opportunity presents itself or has lost the will power to resist temptation in that respect. O'Kane v. O'Kane, 103 Ark. 382, 147 S.W. 73 (1912).

Evidence insufficient to show that spouse was a habitual drunkard. Oxford v. Oxford, 237 Ark. 384, 373 S.W.2d 707 (1963).

Indignities.

Personal indignities contemplated by the statute as grounds for divorce include rudeness, vulgarity, unmerited reproach, haughtiness, contempt, contumeliousness, studied neglect, intentional incivility, injury, manifest disdain, abusive language, malignant ridicule and every other plain manifestation of settled hate, alienation, and estrangement. Rose v. Rose, 9 Ark. 507 (1849); Kurtz v. Kurtz, 38 Ark. 119 (1881).

The indignities to the person need not consist of personal violence. They may consist of unmerited reproach, rudeness, contempt, studied neglect, open insult, and many other things, habitually and systematically pursued, which may, according to the habits of the parties and their condition in life, be just as effectually within the statute as personal violence. Haley v. Haley, 44 Ark. 429 (1884). See also Cate v. Cate, 53 Ark. 484, 14 S.W. 675 (1890).

Evidence of indignities was sufficient to show entitlement to divorce. McGee v. McGee, 72 Ark. 355, 80 S.W. 579 (1904); Bell v. Bell, 179 Ark. 171, 14 S.W.2d 551 (1929); Bullington v. Bullington, 194 Ark. 1155, 106 S.W.2d 185 (1937); Morgan v. Morgan, 202 Ark. 76, 148 S.W.2d 1078 (1941); Coffey v. Coffey, 223 Ark. 607, 267 S.W.2d 499 (1954); Brimson v. Brimson, 227 Ark. 1045, 304 S.W.2d 935 (1957); Forsgren v. Forsgren, 4 Ark. App. 286, 630 S.W.2d 64 (1982); Hodges v. Hodges, 27 Ark. App. 250, 770 S.W.2d 164 (1989).

Want of congeniality and consequent quarrels are not sufficient to constitute indignities. Bell v. Bell, 105 Ark. 194, 150 S.W. 1031 (1912).

The remedy of absolute divorce contemplated by subdivision (b)(4) of this section is for evils which are unavoidable and unendurable and which cannot be relieved by any exertions of the party seeking the aid of the courts. Meffert v. Meffert, 118 Ark. 582, 177 S.W. 1 (1915).

To authorize a divorce for indignities, conduct of the offending party must indicate settled hate and manifestation of alienation and estrangement and must have been conducted habitually through a period of time sufficient to show that the conduct arose through settled malevolence rendering it impossible to discharge the duties of married life and making one's condition in life intolerable. Preas v. Preas, 188 Ark. 854, 67 S.W.2d 1013 (1934).

Testimony held insufficient to warrant a divorce for indignities. Welborn v. Welborn, 189 Ark. 1063, 76 S.W.2d 98 (1934); Fine v. Fine, 209 Ark. 754, 192 S.W.2d 212 (1946); Price v. Price, 215 Ark. 425, 220 S.W.2d 1021 (1949); Milne v. Milne, 266 Ark. 900, 587 S.W.2d 229 (Ct. App. 1979); Copeland v. Copeland, 2 Ark. App. 55, 616 S.W.2d 773 (1981).

Person to whom a divorce is granted on the ground of indignities does not have to be wholly blameless. Coffey v. Coffey, 223 Ark. 607, 267 S.W.2d 499 (1954).

Condonation of indignities is not a defense if indignities cover a period of time until final separation. Coffey v. Coffey, 223 Ark. 607, 267 S.W.2d 499 (1954).

The statutory requirement that indignities of the offending spouse must be such as to make the other's condition intolerable was not satisfied. Lipscomb v. Lipscomb, 226 Ark. 956, 295 S.W.2d 335 (1956).

Indignities may mean a number of things in various circumstances, but to constitute the grounds for divorce they must be constantly and persistently pursued with the object and effect of rendering the situation of the opposing party intolerable. Gibson v. Gibson, 234 Ark. 954, 356 S.W.2d 728 (1962).

The charge of sexual promiscuity or infidelity is probably the most offensive charge which one spouse can make against the other, and it has been frequently held that to make such a charge without basis is an indignity entitling the person charged to a divorce. Relaford v. Relaford, 235 Ark. 325, 359 S.W.2d 801 (1962).

Drunken conduct may be proved along with other acts to establish indignities rendering the plaintiff's life intolerable in which case it is not necessary to show habitual drunkenness for a period of at least a year. Carmical v. Carmical, 246 Ark. 1142, 441 S.W.2d 103 (1969).

Although the scope of the indignities ground has undergone considerable expansion throughout the years, it is still necessary that the conduct relied upon manifest hate, alienation, and estrangement and be constantly and systematically pursued with the purpose and effect of causing an enduring alienation and estrangement and rendering the condition of the spouse intolerable. Lytle v. Lytle, 266 Ark. 124, 583 S.W.2d 1 (1979).

In contested cases, indignities do not exist absent habitual, continuous, permanent, and plain manifestation of settled hate, alienation, and estrangement on the part of one spouse, sufficient to render the condition of the other intolerable. Milne v. Milne, 266 Ark. 900, 587 S.W.2d 229 (Ct. App. 1979).

Drunken conduct may be proved, along with other acts, to establish the general indignities which have rendered the plaintiff's marital life intolerable. Forsgren v. Forsgren, 4 Ark. App. 286, 630 S.W.2d 64 (1982).

A divorce will be granted when one spouse proves that the other had offered such indignities to her person as to render her condition in life intolerable; personal indignities may consist of rudeness, unmerited reproach, contempt, studied neglect, open insult and other plain manifestations of settled hate, alienation, or estrangement so habitually, continuously, and permanently pursued as to create an intolerable condition. Pomraning v. Pomraning, 13 Ark. App. 258, 682 S.W.2d 775 (1985).

The ground of indignities to the person must be proved by evidence of specific acts and conduct. Gunnell v. Gunnell, 30 Ark. App. 4, 780 S.W.2d 597 (1989).

Where wife asserted indignities as grounds in her complaint for divorce but the chancellor granted the divorce on the grounds of “spousal abuse,” the appellate court found no reversible error as the term “spousal abuse” was, under the circumstances, equivalent to the recognized ground of cruel and barbarous treatment. Rogers v. Rogers, 90 Ark. App. 321, 205 S.W.3d 856 (2005).

Trial court did not clearly err in granting a wife a divorce on the ground of general indignities pursuant to subdivision (b)(3)(C) of this section because the wife showed that the husband frequently directed his wrath toward her in a manner that embarrassed, humiliated, and frightened her; that he publicly and privately harangued her over minor matters; that he acted in a dismissive and suspicious manner by leaving the house for hours without explanation, making a late-night phone call without saying to whom he was speaking, and being in possession of a romantic card from another woman; that he gambled frequently; and that she could not account for a large portion of the couple's joint funds. Ransom v. Ransom, 2009 Ark. App. 273, 309 S.W.3d 204 (2009).

Circuit court did not err by awarding the wife a divorce based on the ground of indignities under subdivision (b)(3)(C) of this section, because the wife offered evidence of her husband's ongoing affair, rudeness, unmerited reproach, and studied neglect that amounted to “settled hate” rendering her condition in life intolerable. Coker v. Coker, 2012 Ark. 383, 423 S.W.3d 599 (2012).

Where a husband appealed a circuit court’s divorce decree, the wife proved a prima facie case of general indignities, and, as required, she corroborated the general indignities. The wife offered proof of a continuing pattern of disrespectful, controlling behavior. Walton v. Walton, 2014 Ark. App. 105 (2014).

Even if the wife's testimony that the husband had made her feel inadequate and belittled for quite a while was sufficient to establish the ground for divorce based on general indignities, the trial court erred in granting a decree for an absolute divorce on that ground as the wife failed to provide any proof corroborating that ground because her sister's testimony was based on what the wife told her, not what she witnessed; and there was no other evidence tending to show general indignities on the part of the husband. Lundy v. Lundy, 2014 Ark. App. 573, 445 S.W.3d 518 (2014).

Wife was not entitled to a divorce on the ground of general indignities because she did not corroborate her allegations, as the allegedly corroborating testimony of her husband was insufficient to satisfy the corroboration requirement. Mayland v. Mayland, 2019 Ark. App. 390, 586 S.W.3d 179 (2019).

Trial court's award of joint child custody was not inconsistent with the court's grant of a divorce on general indignities grounds because different considerations were required to make general-indignities and joint-custody findings. Cunningham v. Cunningham, 2019 Ark. App. 416, 588 S.W.3d 38 (2019).

Insanity.

A divorce for incurable insanity granted to a spouse who is guardian for the insane requires service on the superintendent or physician in charge of the institution where the insane is confined and on a guardian ad litem and lack of representation by guardian ad litem and service thereon renders the divorce voidable and subject to direct attack on the ground of unavoidable casualty even after the death of the spouse to whom the divorce was granted, his or her personal representative and attorney being proper parties defendant in the action to vacate the divorce decree. Jackson v. Bowman, 226 Ark. 753, 294 S.W.2d 344 (1956).

Where a divorce was granted on grounds of the wife's insanity, the trial court's determination that the balance of the wife's attorney's fees should be paid from the wife's estate because of her independent financial resources was reversed as the insane spouse is entitled to every reasonable protection of her interests, including the finest legal services that can be obtained for her, at her husband's expense. Wood v. Wright, 238 Ark. 941, 386 S.W.2d 248 (1965).

Nonsupport.

Evidence insufficient to show that spouse lacked the common necessities of life. Saugey v. Saugey, 228 Ark. 110, 305 S.W.2d 856 (1957); Oxford v. Oxford, 237 Ark. 384, 373 S.W.2d 707 (1963).

Pleadings.

Party in a divorce proceeding prior to trial of the action may amend his complaint and allege the maturity of a cause of action since the filing of the original complaint. Price v. Price, 215 Ark. 425, 220 S.W.2d 1021 (1949).

If evidence is introduced during the trial of a divorce proceeding showing a different cause of action from the one alleged in the complaint, the defendant may waive the right to object to the new cause of action. Price v. Price, 215 Ark. 425, 220 S.W.2d 1021 (1949).

Where plaintiff's complaint for divorce alleges one ground, evidence introduced at trial shows a cause of divorce on another ground, and defendant objects to the new cause of action, court must dismiss the suit as to first ground but without prejudice to the right of the plaintiff to file a new suit on the new ground. Price v. Price, 215 Ark. 425, 220 S.W.2d 1021 (1949).

Where a wife amended her original divorce complaint to seek instead only separate maintenance, that was the only type of decree which could have been entered by the trial court; the chancellor erred in granting the wife a divorce from bed and board and erred in dividing the marital property under § 9-12-315. Spencer v. Spencer, 275 Ark. 112, 627 S.W.2d 550 (1982).

Proof.

Husband was entitled to reversal of a divorce decree granted on the ground of general indignities; although the husband waived corroboration of grounds and failed to object to the sufficiency of proof of grounds at trial, the wife was required to offer sufficient, non-conclusory proof of grounds, which she failed to do. She offered only a general affirmative response to her attorney's question as to whether the husband had treated her in such a manner as to render her condition in life intolerable. Dee v. Dee, 99 Ark. App. 159, 258 S.W.3d 405 (2007).

—Admissibility of Evidence.

Ex parte affidavit of a third person cannot be used as independent evidence. Such affidavit cannot be received as independent testimony or as corroboration in a divorce cause. Wood v. Wood, 232 Ark. 812, 340 S.W.2d 393 (1960).

—Burden of Proof.

Marriage contract should not be severed except upon clear proof of one or more of the grounds prescribed by this section. Fania v. Fania, 199 Ark. 368, 133 S.W.2d 654 (1939).

In an action for divorce the burden was on the plaintiff to show by corroborative evidence and a preponderance thereof, separation for three years (now 18 months) without cohabitation. Ross v. Ross, 213 Ark. 742, 213 S.W.2d 360 (1948).

Divorce is a creature of statute and can only be granted when statutory grounds have been proved and corroborated. Harpole v. Harpole, 10 Ark. App. 298, 664 S.W.2d 480 (1984); Pomraning v. Pomraning, 13 Ark. App. 258, 682 S.W.2d 775 (1985).

Regardless of whether a divorce is contested or uncontested, the injured party must always prove his or her ground(s) for divorce as set forth in this section; in other words, existing statutory law does not allow a spouse to stipulate to or waive grounds for divorce. Harpole v. Harpole, 10 Ark. App. 298, 664 S.W.2d 480 (1984); Hodges v. Hodges, 27 Ark. App. 250, 770 S.W.2d 164 (1989).

—Corroboration.

Testimony held to be insufficiently corroborated. Ledwidge v. Ledwidge, 204 Ark. 1032, 166 S.W.2d 267 (1942); Stimmel v. Stimmel, 218 Ark. 293, 235 S.W.2d 959 (1951).

Allegation of separation for three years (now 18 months), which was admitted by the defendant, required corroboration. Allen v. Allen, 211 Ark. 335, 200 S.W.2d 324 (1947).

Corroborating evidence held to be sufficient. Obennoskey v. Obennoskey, 215 Ark. 358, 220 S.W.2d 610 (1949); Pomraning v. Pomraning, 13 Ark. App. 258, 682 S.W.2d 775 (1985).

Corroboration is as essential to the granting of a divorce on the grounds of three-year (now 18-month) separation as it is in any other case, but, where it is plain that the divorce action is not collusive, the corroboration may be comparatively slight; nonetheless, there must be corroboration to some substantial fact or circumstance independent of the testimony of the party asserting the claimed separation period which would lead an impartial and reasonable mind to believe that the material testimony is true. Russell v. Russell, 275 Ark. 193, 628 S.W.2d 315 (1982).

Res Judicata.

The rule of res judicata in divorce suits applies only when the second suit is on the same cause of action as the first suit. Narisi v. Narisi, 233 Ark. 525, 345 S.W.2d 620 (1961).

Separation.

Pleadings and affidavits supported the statutory grounds of 18 months' continuous separation without cohabitation, and the trial court erred as a matter of law by denying the husband's counterclaim for absolute divorce. White v. Shepard, 2015 Ark. App. 223, 459 S.W.3d 333 (2015).

—In General.

Divorce granted on grounds of separation. Clarke v. Clarke, 201 Ark. 10, 143 S.W.2d 540 (1940); Day v. Langley, 202 Ark. 775, 152 S.W.2d 308 (1941); Goud v. Goud, 203 Ark. 244, 156 S.W.2d 225 (1941); McCall v. McCall, 204 Ark. 836, 165 S.W.2d 255 (1942); Carty v. Carty, 222 Ark. 183, 258 S.W.2d 43 (1953); Fair v. Fair, 232 Ark. 800, 341 S.W.2d 22 (1960).

Subdivision (b)(5) of this section makes a decree of divorce mandatory on the court at the suit of either party, where the conditions of the statute have been met, no matter what caused the separation. Brooks v. Brooks, 201 Ark. 14, 143 S.W.2d 1098 (1940); McCormick v. McCormick, 246 Ark. 348, 438 S.W.2d 23 (1969) (decision prior to the 1991 amendments).

Where husband left wife and child with the understanding that after he established himself they would join him, there was not a separation under subdivision (b)(5) of this section until they ceased to correspond with each other; and husband, praying for a divorce on that ground in cross-complaint to wife's suit for maintenance, had burden to show separation. Bockman v. Bockman, 202 Ark. 585, 151 S.W.2d 99 (1941).

If plaintiff files suit for divorce on statutory ground of desertion for three years (now 18 months) the court cannot consider any defense by the defendant based on the ground of misconduct of the plaintiff, as this section is mandatory. Warren v. Warren, 214 Ark. 379, 216 S.W.2d 398 (1949).

Husband is entitled to divorce on ground of separation if separated from wife for three years (now 18 months), regardless of fault upon his part. Mohr v. Mohr, 214 Ark. 607, 215 S.W.2d 1020 (1949).

In a suit for divorce on the ground of three years' separation (now 18 months' separation), the question of who was the injured party may only be considered in settlement of property rights and the question of alimony. Grytbak v. Grytbak, 216 Ark. 674, 227 S.W.2d 633 (1950); Fair v. Fair, 232 Ark. 800, 341 S.W.2d 22 (1960).

In action by wife to set aside divorce granted on grounds of separation, allegation that separation was result of husband having deserted wife constituted meritorious defense even though wife admitted separation. Fair v. Fair, 232 Ark. 800, 341 S.W.2d 22 (1960).

—Cohabitation.

Evidence established that husband and wife were not living separate and apart from each other within subdivision (b)(5) of this section. McClure v. McClure, 205 Ark. 1032, 172 S.W.2d 243 (1943); Varnell v. Varnell, 207 Ark. 711, 182 S.W.2d 466 (1944); Brimson v. Brimson, 227 Ark. 1045, 304 S.W.2d 935 (1957); Oxford v. Oxford, 237 Ark. 384, 373 S.W.2d 707 (1963).

When the legislature used the word “cohabitation,” the popular sense purporting sexual intercourse, rather than the literal or derivative meaning of living together, was intended. McClure v. McClure, 205 Ark. 1032, 172 S.W.2d 243 (1943); Varnell v. Varnell, 207 Ark. 711, 182 S.W.2d 466 (1944).

Where access to a spouse is admitted, marital relations will be presumed. Hancock v. Hancock, 222 Ark. 823, 262 S.W.2d 881 (1953).

—Evidence.

Proof of alleged misconduct occurring more than five years before filing suit was admissible to show injured party. Alexander v. Alexander, 227 Ark. 938, 302 S.W.2d 781 (1957).

Evidence of incidents which happened after separation was admissible to show who was the injured party. Alexander v. Alexander, 227 Ark. 938, 302 S.W.2d 781 (1957).

Where for all outward appearances, the husband and wife lived separate and apart, and not as husband and wife, for over three years (now 18 months) immediately prior to the decree of divorce, the wife's stay of four nights at the motel where the husband lived did not break the continuity of their separation where, during the stay, the parties slept apart, and the husband denied having sexual relations with the wife. Santostefano v. Santostefano, 18 Ark. App. 173, 712 S.W.2d 324 (1986).

—Mutuality.

Subdivision (b)(5) of this section must be construed as though it read “when they have lived apart for three consecutive years [now 18 months]” so as to contemplate an agreement or understanding that they will act in concert of purpose, voluntarily living apart for three years, at the end of which period either may obtain a divorce from the other by alleging and establishing mutuality of the separation. White v. White, 196 Ark. 29, 116 S.W.2d 616 (1938).

Insane wife cannot be said to have voluntarily lived apart from her husband, and there was no element of mutuality in the separation which established a ground for divorce under subdivision (b)(6) of this section. Carlson v. Carlson, 198 Ark. 231, 128 S.W.2d 242 (1939).

Subdivision (b)(5) of this section assumes that the period of living apart without cohabitation for three years (now 18 months) must have been the conscious act of both parties and the purpose is not to grant divorce on ground of insanity of either party. Serio v. Serio, 201 Ark. 11, 143 S.W.2d 1097 (1940); Wilder v. Wilder, 207 Ark. 414, 181 S.W.2d 17 (1944).

Husband was entitled to a divorce under subdivision (b)(5) of this section where parties had lived apart without cohabitation for three years (now 18 months) even though separation was involuntary upon wife's part and was under his coercion. Brooks v. Brooks, 201 Ark. 14, 143 S.W.2d 1098 (1940).

—Time Period.

Supreme Court has no authority to exclude from separation contemplated by subdivision (b)(5) of this section period of time during which parties lived apart under separation decree. Jones v. Jones, 199 Ark. 1000, 137 S.W.2d 238 (1940).

Time spent in military service may be included in statutory period required for separation. Mogensky v. Mogensky, 212 Ark. 28, 204 S.W.2d 782 (1947); Mohr v. Mohr, 214 Ark. 607, 215 S.W.2d 1020 (1949).

Cited: Parrish v. Parrish, 195 Ark. 766, 114 S.W.2d 29 (1938); Smith v. Smith, 219 Ark. 278, 242 S.W.2d 350 (1951); Oakes v. Oakes, 219 Ark. 363, 242 S.W.2d 128 (1951); Bishop v. Lucas, 220 Ark. 871, 251 S.W.2d 126 (1952); McIntire v. McIntire, 270 Ark. 381, 605 S.W.2d 474 (1980).