Permanent Alimony upon Absolute Divorce - A Necessary Change in Pennsylvania Law
![handle is hein.journals/vllalr15 and id is 203 raw text is: FALL 1969]
PERMANENT ALIMONY UPON ABSOLUTE DIVORCE -
A NECESSARY CHANGE IN PENNSYLVANIA LAW
I. INTRODUCTION
Under present Pennsylvania statutes, a court may decree permanent
alimony' where a divorce from bed and board, i.e., a legal separation has
been obtained.2 However, in the case of absolute divorce, permanent
alimony is unavailable to either spouse except in one minor instance.3
The drafters of the Proposed Marriage and Divorce Code have suggested
that Pennsylvania should permit permanent alimony upon divorce.4 The
purpose of this Comment is to explore the merits of this proposal. Two
basic hypotheses will provide a starting point for analysis of the problem.
First, the type of divorce that spouses obtain in any particular instance
should reflect the best interests of the parties involved and the choice
should not be dictated solely by economic considerations. Second, the
state has a valid interest in permitting permanent alimony upon absolute
divorce since it alleviates the danger that either spouse will become a
public charge.
II. HISTORICAL PERSPECTIVE
The Pennsylvania position on permanent alimony subsequent to abso-
lute divorce finds support from a historical viewpoint. Alimony developed
as an incident to divorce in the ecclesiastical courts of England.5 These
1. Alimony may be either pendente lite or permanent in nature. Permanent
alimony is an award made to the wife after a decree of divorce and is designed to
provide for her support on a more or less permanent basis. Alimony pendente lite, on
the other hand, is a temporary award, designed to provide support for the wife during
the pendency of a suit for divorce or annulment. See 2 A. FREDMAN & M. FREDMAN,
LAW OP MARRIAGE AND DIVORCE IN PENNSYLVANIA § 427 (2d ed. 1957) [hereinafter
cited as FREEDMAN]. See also Commonwealth v. Scholl, 156 Pa. Super. 136, 39 A.2d
719 (1945).
2. See PA. STAT. tit. 23, § 47 (1955) which provides in pertinent part:
In cases of divorce from bed and board, the court may allow the wife such
alimony as her husband's circumstances will admit of, but the same shall not
exceed the third part of the annual profit or income of his estate, or of his occupa-
tion and labor, which allowance shall continue until a reconciliation shall take
place, or until the husband shall, by his petition or libel, offer to receive and
cohabit with her again....
3. See PA. STAT. tit. 23, § 45 (1955) which provides in pertinent part:
In case of the application of a husband for divorce from an insane wife, the
court, or the judge thereof to whom the application is made, shall have power to
decree alimony for the support of such insane wife during the term of her natural
life, by requiring the libellant to file a bond...
If the wife be the petitioner, and have sufficient means, the court, or the judge,
may provide for the support of the insane husband, as provided in this section for
the insane wife, if the insane husband has not sufficient estate in his own right
for his support.
4. See JOINT STATE GOVERNMENT COMMISSION, PROPOSED MARRIAGE AND DIvORcE
CODE FOR PENNSYLVANIA § 504, at 1113 (1961). This is actually a compilation of
separate divorce and marriage codes which will hereinafter be cited as PROPOSED
MARRIAGE CoDE or PROPOSED DIVORCE CODE as appropriate.
5. For an authoritative discussion of alimony in a historical context see Vernier
& Hurlbut, The Historical Background of Alimony Law and its Present Statutory
Structure, 6 LAW & CONTEMP. PROB. 197 (1939).
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Permanent Alimony upon Absolute Divorce - A Necessary Change in Pennsylvania Law
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