42.0205 Examination and evidence by court.

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The court shall examine all parties and witnesses and shall take all evidence, as far as it reasonably can, not only as to the facts alleged in the petition, but also as to whether or not the petitioner has been in any manner an accessory to the offense alleged, has connived with the respondent in the commission of the offense alleged, or has condoned the same. The court may also inquire into any countercharge which may be made against the petitioner and upon conclusion of all the testimony in the suit or proceeding, the court shall determine the issue therein upon the merits.

History: 1962, PL 7-32.

Case Notes:

Application of equitable principles of estoppel and clean hands to action for annulment of formerly bigamous marriage was bolstered by territorial statutes providing that court “may” annul any marriage that was illegally contracted, and setting forth strict rules against judgment by default, collusive suits, and the granting of judgment in favor of a guilty party. A.S.C.A. §§ 42.0203, 42.0204-11. Watson v. Watson, 11 A.S.R.2d 30 (1989).

The agreement by a spouse against whom divorce is sought not to contest the divorce does not relieve a court of its statutory duty to examine all witnesses and to dismiss the action if the petitioner has failed to prove the charge. A.S.C.A. § 42.0205-06. Chun v. Chun, 3 A.S.R.2d 23 (1986).

Territorial statute clearly prohibits court from granting divorce absent proof of “fault-based” statutory criteria, even in case where respondent had stipulated to default judgment and waived the right to contest the divorce action. A.S.C.A. §§ 42.0202, 42.0205-06. West v. West, 5 A.S.R.2d 88 (1987).

Party seeking divorce must prove entitlement under statutory criteria even when respondent does not answer or appeal. A.S.C.A. 42.0205, T.C.R.C.P. Rule 50(e). Fiu v. Fiu, 5 A.S.R.2d 146 (1987).

Where petitioner in annulment action did not wish to present any evidence other than a copy of divorce judgment obtained by respondent against another spouse five years after her marriage to petitioner, territorial statute required court to inquire about the circumstances of the marriage whose annulment was sought. A.S.C.A. § 42.0205. Watson v. Watson, 11 A.S.R.2d 30 (1989).