## Facts

- Husband (Protestant) and wife (Roman Catholic) married in 1947 in a Protestant church after agreeing the wife would adopt the husband’s faith; she later joined his church.
- The couple had a daughter in 1950; disputes arose over the child’s baptism and religious upbringing.
- In 1954, after an accident, the wife concluded the civil marriage was not valid under her Church’s rules and demanded a new Roman Catholic ceremony.
- The wife refused further sexual relations unless the husband agreed to a Catholic remarriage; the refusal persisted for months.
- The husband remained in the home for six to seven months attempting reconciliation, then left when he concluded the refusal was final and sued for separation and custody.
- The husband pleaded “cruel and inhuman treatment,” not abandonment; the wife counterclaimed for separation, support, and custody and admitted the conditional refusal of sexual relations.

## Issues

1. Whether a spouse’s repudiation of the civil marriage’s validity and refusal of sexual relations unless there is a religious remarriage constitutes “cruel and inhuman treatment” warranting separation.
2. Whether the proven facts established constructive abandonment warranting separation, even though the complaint framed the claim as cruelty rather than abandonment.

## Decision

- The Court of Appeals reversed the lower courts.
- The wife’s conduct did not require treatment as “cruel and inhuman treatment” for separation purposes; instead, it constituted constructive abandonment.
- The court directed entry of a decree of separation in the husband’s favor on the ground of abandonment, with custody to be fixed consistent with the opinion.
- A dissent would have affirmed and objected to recharacterizing the case as abandonment.

## Legal Principles

- Unjustified and persistent refusal of sexual relations by one spouse may constitute constructive abandonment supporting a decree of separation.
- Matrimonial relief turns on the facts alleged and proved; a court may grant relief on the legal ground established by the evidence even if the pleadings use a different label.
- Marriage is a civil status governed by secular law; a spouse’s religious belief that a civil marriage is invalid does not excuse performance of civil marital obligations.
- Conditioning marital cohabitation on the other spouse’s submission to a religious remarriage is not legal justification for withholding marital relations and may amount to repudiation of the civil marriage.

## Conclusion

The court held that a spouse’s sustained, unjustified refusal of marital relations—based on a demand for a religious remarriage—constitutes constructive abandonment, and that separation may be granted on the ground supported by the facts proved even if the complaint characterizes the conduct under a different theory.


Diemer v. Diemer, 8 N.Y.2d 206 (N.Y. 1960)