MATRIMONIAL PROBLEM

Dominion, Volume 13, Issue 304, 17 September 1920, Page 7

MATRIMONIAL PROBLEM

BIG ESTATE INVOLVED MAORI MARITAfcIISTOMS LEAD TO A LAWSUIT An originating summons raising an Interesting question, which the learned Judge pointed out mifcht prove to have farreaching effects, wub the subject of a reserved judgment given by the Ohief Justice (Sir Robert Stout) yesterday. The outstion at i6sue was whether one John Macpherson, deceased, formerly of Matata, in the County of Whakatane, was legally married to a Maori -..cmau, named Mariana Te-o-ha, and it was raised in relation to tho distribution of the estate of Malcolm. Macpherson, deceased, intestato, formerly of New Zealand, but lately of England, and the brothor of John Macpherson. It appeared that John Macpherson was a settler at Matata, and for some time kept a store and a nublic-houeo there. He died on August 15, 1887, leaving Beveral children borne to him by Mariana Te-o-ha, and these children, if their parents' marriage was valid, are entitled to a portion of the property of their late uncle, Malcolm Macpherson, Miich is of considerable value. The question of determination by the Court, wan whether John Macpherson's children, were legitimate. The Record of Marriage. In reviewing the evidence, the Ohief Justice pointed out that the proof tendered in support of the validity of the marriage showed no evidence of any authorisation by the fiegistrar of Marriages, or any certificate by him or by any clergyman that the marriage did in fact take place. The proof rested firstly upon the fact that John Macpherson and this Maori woman lived together, to the knowledge of several people, as man and wife; secondly, that some feast or celebration was hold at Matata, which was Baid to have been in celebration of tho marriage. The only other evidence was supplied by Mariana Tc-d-ha herself, who stated that the marriage took place at a Koman Catholio chapel at Matata, and that she and John Macpherson were married by one Father Walter M'Donald, a Eoman Catholic priest, since deceased, John Macpherson, it might be noted, was a .Presbyterian. Ko register had been produced showing a record of any such marriage, and no authority was iesucd by any of tho Registrars of Marriages for any district in Now Zealand to Father M'Donald to celebrate this marriage. Other evidence adduced in support of- the validity of the marriage was that of Messrs. Prccce, Roberts and Mair, who were on the East Coast, at Matata, between 184>9 and 1879, and who knew both Macpherson and his wife. Theao witnesses Btatcd that Mariana Te-o-ha was reputed to bo hiß wife. There was also the evidence of a Mrs. Foley, a half-caEte, who said that sho know Macpherson and hiß wife since 1869, and that they lived together as man and wife. Anolhor witness recalled being invited by Macpherson to join in a convivial evening in celebration o fthe marriage, which he was told had just taken place. A Common Practice. "That is," continued His Honour, 'The strongest evidence that has been produced in support of tho validity of the marriace. It is to be noticed, however, that the defendant, the oldest daughter of Mnriana Te-o-ha, admits, and cannot be denied, that it was a common practice in Maori districts for white men to live with Maori women without being legally married. . . . Tho practice was known as a Maori marriage, but it is clear that it was not valid, or that it has never 'been recognised as Rich in New Zealand, though it haß given rise to tho reputation of marriage. A marriage which has neither been registered nor the ceremony porformed by a registrar or by a licensed clergyman, has rever hcen recognised, as between a white man and a Maori, as-a valid marriage. If a practice of that description were rcognised as a valid marriage, even at the present time considerable difficulties would arise in relation to the distribution of property, etc. It is a fact that it wbb a frequent occurrence for white men to live with Maori women in Maori districts, but such an occurrence has never vet been recognised as a valid marriage." • After further reviewing tho evidence Hu Honour summed up as follows :-"I am, therefore, of opinion that the answer to the question put Ib that it has not been proved that the children of John Moo phcrson are the- next-of-kin to Malcolm Macpherson, deceased. It may also be pointed out that at tho time of the al'eged ceremony Mariana was under ago, and no consent to tho marriage was given bv a guardian pronerly appointed. This might not have affected tho validity of the marriage, but it is nevertheless a fact which cannot bo,ignored. I am of opinion that I cannot hold that such a marriage took place." Kn costs were awarded. At the hearing Mr. H. B. Evans repre-' scnted tlie pontiff, SoDhJa Ernlnio Morlcy Burton Macpherson, while Mr. E. P. Bunny appeared for tho defendants, Christina Bendall and others, who maintained that a marriage had hcen Bolemnißed.