§ 50-5.1. Grounds for absolute divorce in cases of incurable insanity.
§50‑5.1. Grounds for absolute divorce in cases of incurable insanity.
In all cases where a husbandand wife have lived separate and apart for three consecutive years, withoutcohabitation, and are still so living separate and apart by reason of the incurableinsanity of one of them, the court may grant a decree of absolute divorce upon the petition of the sane spouse: Provided, if the insane spouse has beenreleased on a trial basis to the custody of his or her respective spouse suchshall not be considered as terminating the status of living "separate andapart" nor shall it be considered as constituting "cohabitation"for the purpose of this section nor shall it prevent the granting of a divorceas provided by this section. Provided further, the evidence shall show that theinsane spouse is suffering from incurable insanity, and has been confined orexamined for three consecutive years next preceding the bringing of the actionin an institution for the care and treatment of the mentally disordered or, ifnot so confined, has been examined at least three years preceding theinstitution of the action for divorce and then found to be incurably insane ashereinafter provided. Provided further, that proof of incurable insanity besupported by the testimony of two reputable physicians, one of whom shall be astaff member or the superintendent of the institution where the insane spouseis confined, and one regularly practicing physician in the community whereinsuch husband and wife reside, who has no connection with the institution inwhich said insane spouse is confined; and provided further that a swornstatement signed by said staff member or said superintendent of the institutionwherein the insane spouse is confined or was examined shall be admissible as evidenceof the facts and opinions therein stated as to the mental status of said insanespouse and as to whether or not said insane spouse is suffering from incurableinsanity, or the parties according to the laws governing depositions may takethe deposition of said staff member or superintendent of the institutionwherein the insane spouse is confined; and provided further that incurableinsanity may be proved by the testimony of one or more licensed physicians whoare members of the staff of one of this State's accredited four‑yearmedical schools or a state‑supported mental institution, supported by thetestimony of one or more other physicians licensed by the State of NorthCarolina, that each of them examined the allegedly incurable insane spouse atleast three years preceding the institution of the action for divorce and thendetermined that said spouse was suffering from incurable insanity and that oneor more of them examined the allegedly insane spouse subsequent to theinstitution of the action and that in his or their opinion the said allegedlyinsane spouse was continuously incurably insane throughout the full period ofthree years prior to the institution of the said action.
In lieu of proof of incurableinsanity and confinement for three consecutive years next preceding thebringing of the action in an institution for the care and treatment of thementally disordered prescribed in the preceding paragraph, it shall besufficient if the evidence shall show that the allegedly insane spouse was adjudicatedto be insane more than three years preceding the institution of the action fordivorce, that such insanity has continued without interruption since suchadjudication and that such person has not been adjudicated to be sane sincesuch adjudication of insanity; provided, further, proof of incurable insanityexisting after the institution of the action for divorce shall be furnished bythe testimony of two reputable, regularly practicing physicians, one of whomshall be a psychiatrist.
In lieu of proof of incurableinsanity and confinement for three consecutive years next preceding thebringing of the action in an institution for the care and treatment of thementally disordered, or the adjudication of insanity, as prescribed in thepreceding paragraphs, it shall be sufficient if the evidence shall show thatthe insane spouse was examined by two or more members of the staff of one ofthis State's accredited four‑year medical schools, both of whom aremedical doctors, at least three years preceding the institution of the actionfor divorce with a determination at that time by said staff members that saidspouse is suffering from incurable insanity, that such insanity has continuedwithout interruption since such determination; provided, further, that sworn statementssigned by the staff members of the accredited medical school who examined theinsane spouse at least three years preceding the commencement of the actionshall be admissible as evidence of the facts and opinions therein stated as tothe mental status of said insane spouse as to whether or not said insane spousewas suffering from incurable insanity; provided, further, that proof ofincurable insanity under this section existing after the institution of theaction for divorce shall be furnished by the testimony of two reputablephysicians, one of whom shall be a psychiatrist on the staff of one of theState's accredited four‑year medical schools, and one a physicianpracticing regularly in the community wherein such insane person resides.
In all decrees granted underthis subdivision in actions in which the insane defendant has insufficientincome and property to provide for his or her own care and maintenance, thecourt shall require the plaintiff to provide for the care and maintenance ofthe insane defendant for the defendant's lifetime, based upon the standards setout in G.S. 50‑16.5(a). The trial court will retain jurisdiction of theparties and the cause, from term to term, for the purpose of making such ordersas equity may require to enforce the provisions of the decree requiringplaintiff to furnish the necessary funds for such care and maintenance.
Service of process shall beheld upon the regular guardian for said defendant spouse, if any, and if noregular guardian, upon a duly appointed guardian ad litem and also upon thesuperintendent or physician in charge of the institution wherein the insanespouse is confined. Such guardian or guardian ad litem shall make aninvestigation of the circumstances and notify the next of kin of the insanespouse or the superintendent of the institution of the action and wheneverpractical confer with said next of kin before filing appropriate pleadings inbehalf of the defendant.
In all actions brought underthis subdivision, if the jury finds as a fact that the plaintiff has beenguilty of such conduct as has conduced to the unsoundness of mind of the insanedefendant, the relief prayed for shall be denied.
The plaintiff or defendantmust have resided in this State for six months next preceding institution ofany action under this section. (1945, c. 755; 1949, c. 264,s. 5; 1953, c. 1087; 1955, c. 887, s. 15; 1963, c. 1173; 1971, c. 1173, ss. 1,2; 1975, c. 771; 1977, c. 501, s. 1; 1983, c. 613, s. 1.)