PROBLEM IN PROBATE

Evening Post, Volume CXVI, Issue 80, 2 October 1933, Page 2

PROBLEM IN PROBATE

FAMILY LOSE ESTATE

A FATHER'S NEGLIGENCE

UNCOMPLETED DIVORCE

(From "The Post's" Representative.) SYDNEY, September 21. A man's negligence many years ag» to have made absolute a decreo nisi ho had obtained for- a divorce has led la legal complications which, in addition to depriving his family of his estate, may result in important changes in, Australian^marriage Bind divorce laws.

Thirty-four years ago Abraham Marks,-a tailor, applied for a, divorca from his wife, in Victoria, and was granted a decree nisi. Evidently ha regarded,it as sufficient1 for a divorce, because ho never applied to the Court to have it made absolute, and six yean afterwards ho married in Sydney. He doubtless thought that the . marriaga was valid. Ma.rks died two years ago, and the woman with whom "be went through the form of marriage in Sydney, on making application for letter* of administration of his estate, found that she had no -legal/status," although she had reared "a family and hdd liVed with Marks as his wife since ' 1905, I The matter came before Mr. Justice Street in the Now South Wales; Probate Court. The Court had to decide the question whether she was legally married in New South Wales. The Victorian Court had made the decree nisi absolute, and validated the marriage after Marks's death. The problem was whether the Victorian Validation had effect in New South Wales.' The Judge held that the Victorian Court's order did not validate tile marriage in Ncvr South Wales.

Mr. Justice Street said tfcat. so far •as . the children of -^he marriago in Sydney were concerned,; he' reached his decision with great reluctance. Marks and, tho applicant had lived together believing themselves to be man and wife, and it was not Until after his death that any question was raised as to the validity of the marriage. It was clear that under the "Victorian Marriage Act, tho Victorian Court had jurisdiction to make a validating, order. The Victorian Pull Court had decided also that this was--not limited to second marriages celebrated in Victoria^ and had held that a' marriago "at Bom» bay was valid. He did not think, how* ever, that the Victorian Court then, considering the general validity of the second marriage,, but only the effect in. Victoria. Thero- was no doubt that the Victorian Parliament could pass an Act saying that for all purposes -Of Victorian law a marriage could be deemed valid in that State, but to say that it could empower a Victorian Court to declare valid a marriage betweem residents in another State, and make it valid for; all purposes in that State, was another matter. The marriage in Sydney in 1905 was not good under the' New South Wales law, and the Victorian Court had no jurisdiction. to make an order affecting proceedings in New South Wales. The unfortunate, result of his decision would be that thft children of the union, who throughout their lives had believed themselves tha offspring of a valid marriage, found themselves in a different status.. -It they lived in Victoria they would b« for all purposes legitimate. These results, however, were not matters .withii the Court's control. ..v . -.