DIVORCE PETITIONS

Dominion, Volume 15, Issue 75, 21 December 1921, Page 9

DIVORCE PETITIONS

UNDER MUTUAL SEPARATION CLAUSE JUDGMENTS DELIVERED Three judgments relative to petitions for divorce under the mutual separation proviso (section 4) of the Divorce and Matrimonial Causes Amendment Act, 1920, wero delivered in the Supreme Court yesterday by His Honour Mr. Justice Hosking. Frank l Sutherland (Mr. A. B. SievTvright) had been married to Mary Isabella Sutherland (Mr. Perry) in 1898, the parties being 51 and 48 years of ago respectively. There was one child of the marriage, who was now over the age of 21 years. A deed of separation was executed on January 27, 1910. According to the evidence of the husband, there had been estrangement for two or three years before the actual separation, and for two years prior to 1910 the parties had not occupied the same room. In delivering judgment, His Honour stated; "Having regard to the exposition in Mason v. Mason, of the principle on which the recent legislation proceeds in extending a right to a. divorce after separation for the prescribed period, I am unable to perceive in this case any special circumstances that would justify the Court in departing from this principle by refusing a decree. But, before pronouncing a decree nisi, I think the question of further provision for the wife should be discussed. If the parties cannot agree on the subject the matter must bo dealt with by the Court. The petition is accordingly adjourned to the next civil sittings of the Court, when the questions of the pronouncement of the rule and of the provision for the wife may be brought on together." MORRIS V. MORRIS. There was no allegation of any decree for judicial separation, or order, or deed of agreement of separation, in the action brought by Harold Harding Morris (Mr. Jackson) against Daisy Jessie ' Morris (Mr. O'Leary). The petitioner merely stated that in September, 1917, the parties had separated by mutual con. sent, such separation having been continued for three years and upwards. His Honour remarked that no writing was forthcoming to evidence the alleged consent; and the proof of it, he thought, rested upon the testimony of the parties which, "as was usual in such cases,” for the most part rested on mutual contradiction. The parties were married in 1913, two children being born in 1914 and 1916 respectively. Relations between them were satisfactory for the first year of their married life; but after that, differences arose from time to time, the blame for which was not admitted by either party. His Honour added: "The petitioner is not now alleging desertion, probably because he realises that the facts would not support that view of the position. He alleges that ho and his wife separated by mutual consent, and the question is whether he has established such a case. The burden of proof is on him, and in view of his wife's evidence relative to their parting, and which I know of no reason for discrediting, he has not, In my opinion, discharged, the burden incumbent upon him. Indeed, I think, having regard to both his own evidence and hor's, there was in fact no mutual consent. I think it was a separation forced on the wife by the husband. She denies that sho wanted to go. That I believe to bo the real position. She wns ■ told tp go, and submitted, he being master of the situation.” The petition was dismissed, with costs on the lower scale, together with witnesses' expenses and disbursements. IRVINE V. IRVINE. William Irvine (Mr. Mazengarb) had asked for dissolution of his marriage with Ja.n.e (Jrawford Irvine (Mr. Jackson), they having been separated in September, 1918. The respondent made a cross-petition for a judicial separation on the grounds of cruelty and desertion. The parties were married in Scotland in March, 1891, when the petitioner was 19 years of age and the respondent 28. About 11 years ago the petitioner came to New Zealand, his wife following two years afterwards. All the members of tho family were over the age of 21 years. In evidence the petitioner said that his wife had never ‘been happy, neither in New Zealand nor in Scotland. In giving judgment, His Honour said: "The obvious bitterness with which the younger daughter spoke of her father when giving evidence indicates an obstacle to the resumption of marital relations between the father and mother. The husband has apparently prospered, and judging from the papers lodged in connection with an application for alimony, coupled with the crosspetition for a judicial separation the desire for further maintenance is at the back of the wife’s attitude; although, as sho says having been a good wife, she does not like the notion of being the one to be divorced, as if she were the guilty party. But this dislike pn the part of the wife to have a decree made against her, although she hns been guilty of no matrimonial misconduct, is an inevitable incident of tho right to a decreo which is given to the opposite party under the legislation of 1920. ... In my judgment the petitioner is entitled to a decree for dissolution and the wife’s cross-petition should be disallowed. The Court, however, will not grant the petitioner a rule nisi until the question of the wife’s maintenance has been disposed of under the petition now before the Court. Tho suit is accordingly adjourned until that takes place.”