RESTITUTION SUIT

Hawke's Bay Herald-Tribune, Issue 158, 22 July 1937, Page 7

RESTITUTION SUIT

Husband aiid Wife Bdth Succeed 1 T ' 7 - In the DiVorce Court iii Sydiiey redently Mr Justice Rbper grantea the petitions of a hilsband ahd Wife Who each asked for rin order for festitution of conjdgal riglxts tb be directed to the bthex", states the Sydriey Mdrtuixg Merald. The parties were Merlin Herbert Hungeri'ord ahd Edith V icttriiie Hungerford (forxnerly I'ascoe). Both denied fejhainirig atvay from the other frithout justifidatiori. Iri givirig his de'cisiblx Mr JtiStice Roper 6aid that he had ribt bbexi kble to fiixd any previous reported Chse of cross-pbtitibns fbr restitritibii bf t'brijiigal fightS. On the facts in this case the reai matters iri difeputo wfere the cross issues of irisineerity. Each of tho parties asserted his or her siricerity. arid deilied the* sincerity ef the Other . At thfe tiihh of the sepafatioh tlxe iiixSbahd Was earriing his livilxg ris a piano turief aiid Ms wife Was xriaking a living as a musid teacher. His Hbriour said he found that each was sihbere in the desire tb returri to arid live With the other. That the parties had ixot returned to each other was due, first, to the Wife's desiro tliat they should iive at Epplngi, while tiie husbatxd Was insistent on making theif hoiue at Kurrajong. lu this, judged by bdfisiderations oi practical coxrimon sense, Ihe Wife was right, but as a matter bf law the hufcbaixd was erititied, withili reason, to iocato the matritoonial hbiue. He be iieVed the wife wheri she said, in efi'ect, that slie would gd there. SeCbndJy, each of the parties werO arixioiis to score a victory bvef the otlxef in this litigatioh5 because oi a feeiing ot pride and stubbornness, and a Wish to be justiried by the result. Hjs Honour said he did not think that this spirit was ineonsistent with their sincerity in seeking a. restitution of rnatrimonial relatioriship. He found that each of the parties had remained away from the other without justification. "It was strongly urged on me hy counsel ior each party," said His HonoiXr, "tliat, as a matter of law, a decree could not be made on both petitions. If, however, the husband's petition had not been fiied, and the evidence given in this case had been given in the wife's suit, I .would have llatl no hesitation in taking the view that I haVe takexi of the facts, in granting her a decree. Similarly, if the wife's petition had riot been filed, 1 would, bn the sdxiie evidence, equaily, without hesitation, have grarited a decree in the husband's suxt." His Honour then produced a decrCe for restitution iu each suit. He said that if difficulty was encolintered in serving either decree on or before AugUst 10, the parties were at iiberty to apply to him for directioiis.