DOMESTIC RELATIONS AND THE LAW’S ROLE

Press, Volume XCV, Issue 28261, 26 April 1957, Page 13

DOMESTIC RELATIONS AND THE LAW’S ROLE

A plea for an awakening to the law’s responsibilities regarding domestic relations was made to the Dominion legal conference on Wednesday by Mr P. H. T. Alpers (Christchurch). He advocated the establishment of an all-embracing tribunal to deal with all matrimonial causes and all matters of custody and domestic law in general.

Sir Wilfrid Sim commented on Mr Alpers’s proposal that the test in a case should not be the determination of where fault or merit lay, but the determination of need.

“If this principle is allowed to assert itself you would have marriages meaning very little in this country of New Zealand. ... We have gone far enough in weakening our marriage tie. The time has come to call a halt,” said Sir Wilfrid Sim. “I think that Sir Wilfrid Sim should wrench himself out of the nineteenth century into the middle of the twentieth century,” said Mr* Alpers. “He said that he was horrified by my suggestion. ...”

Describing a possible case where a man might wilfully create a disturbance in a marriage household, he said: ‘‘Sir Wilfrid Sim thinks that the law should be kept in such a state as to keep that man married. The law surely is not to be called on to preserve the married state. There are other things that do and will continue to preserve the vast majority of marriages.” “Changing Needs”

In some respects the present courts were not sufficiently flexible to meet the changing needs of society and the realities of changing times, said Mr Alpers in his paper. It was the peculiar province of lawyers to make the law, interpret and administer it, and they did not appreciate their great responsibility to the full. There had been a vast growth in the importance of matrimonial law in the last 100 years. The questions posed to and answered by the courts were important social questions, the answers to which affected a great many homes

and families, directly and indirectly. Almost of equal social importance with the grounds for divorce or separation with their changing interpretations were the very difficult questions regarding maintenance, custody of children, the matrimonial home, etc. Precedent was often inappropriate. and seriously hampered the necessary development of domestic law. The decisions of the past century had become, like the old forms of action, “the ghosts of the past dragging their medieval chains.” That, and the history of the statute law, resulted in a number of anomalous survivals of which the most important was that cases tended to be decided by a superficial inquiry into fault, largely confined to faults constituting or bordering on the old matrimonial offences.

“The inquiry should really be, when divorce or separation is in question, whether the marriage has irretrievably failed,” said Mr Alpers. “And maintenance should be decided on common-sense grounds of need, interest of children—not on fault or merit. The Remedy “What then is the remedy? The first and best is to awaken to our responsibility, to attach to matrimonial law the importance which it deserves, and to train ourselves and adapt our courts accordingly.

“If our present courts remain unsuitable, let us consider devising another tribunal composed, for example, of*a lawyer as president, with another male and a female, one or both of whom should have had fairly wide experience of men, women and children through social work or otherwise, and a knowledge of the relevant branches of medicine and mental hygiene.” Was there any justification for the continued existence of two separate jurisdictions under the Divorce Act and the Destitute Persons Act? asked Mr Alpers. Such a special tribunal could have that jurisdiction. The haste with' which separation cases were sometimes disposed of in the Magistrates’ Court seemed out of keeping with the importance of those cases to the parties. Their function in deciding whether or not to make a separation order was, in reality, quite as important as any decision the Supreme Court had to make, because it was the crucial decision which ultimately determined the status of the parties. “Human Branch of Law”

A glance at a volume of the “Law Journal” would show that lawyers seemed much more concerned about rather remote rights of property or causes of action in torts than about this very human and important branch of law. He believed the truth to be that it was one of their highest responsibilities. There was no field of law which was so peculiarly the lawyer’s, and no field of law which was so largely judge-made. Statutes gave only the broadest outline of the grounds for divorce or separation and the filling in which had been done by the judges and magistrates was all-important. What was cruelty? What was desertion? What was an agreement to separate? The answers to those questions were still being evolved in case law.

There were other questions of growing importance, he said. What amounted to constructive desertion? What justified a wife in refusing to live with her husband so as not to disentitle her to maintenance? What was “just cause” so as to negative desertion? With the increasing stresses which the institution of marriage and domestic relationships in general had to bear, the answers given every week tended to change from year to year. Increase Rate Mr Alpers said that he did not suggest that the law and its administration were responsible for the increased divorce rate. It was obvious that the causes were to be found in the very great changes

in society and ways of life, particularly, perhaps, in the emancipation of women. In considering the questions of responsibility, faults and remedies, they had to remember that it was not merely the institutions of marriage and family life which were affected by matrimonial law and its administration, said Mr Alpers. They were realising now to an increasing degree that the happiness and security of home life had a great deal to do with the mental health and happiness of thfeir children as well as themselves. Eventually, it seemed clear, the national character itself was affected.