WIFE'S UNUSUAL CLAIM

Hawke's Bay Herald-Tribune, Volume 81, Issue 48, 19 November 1937, Page 8

WIFE'S UNUSUAL CLAIM

Own Correspondent.)

Question of Maintenance HUSBAND IN DOMINION

(From Our

— LONDON, Oct. 23. A woman's claim for maintenance from another man during her husband's absenee in New Zealand was heard in the King's Bench Division. It was argued before Mr Justiee Lewis that a contract which contemplated the separation of a husband and wife was void, as being cont'rary to public policy. The question was a preliminary point raised by the defehdant in an action brought by Mrs Alico Davies, of Shrewsbury, against Allan Melrose Elmslie, of London. Mrs Davies claimed £32 arrears of allowance under an agreement made between the parties in January, 1936. She also asked for an declaration tliat she was entitled to receive from* Elmslie a weekly allowance of £4 until either her passage was paid to New Zealand to rejoin her husband, Hugo Harold Davies, or his passage was paid for him to rejoin Mrs Davies in England. The statement of claim alleged that, in the agreement, a weekly allowance^ was promised to Mrs Davies in con-" sideration of her persuading her husband, to go to New, Zealand and consehting to forego the consortium-of her husband. It was also alleged that Elmslie paid the allowance for a year, but had refused to continue it. Mrs Davies had always been ready to rejoin her husband. Mr R. A. Willes, for Elsmlie, contended that sueh an. agreement was iliegal. . The preliminary point to be decided was whether, as the defendant conterded, the agreement wSs uncnforceable because it was against public policy. Mr Justiee Lewis 'decided in favour of the plaintiff, and ruled that the contract was not void, as against public policy, or based on iliegal considerat.inn

When the point wis being argued Sir lleginald Coventry, K.C., for Mrs Davies, said: "This contiacu was drawn up by Mr Elmslie's own solicitors. We have every reason to believe that he is a man vof honour, and the tactics adopted to defeat this lady's claim are nct his. They are the' tactics of someono behind tfce scenes, of whom we lcncw nofchmg. The whole oljeet was to provide maintenance for the wife and nothing else, the husband having gone abroad to find work." Mr Justiee Lewis said he would not assume .for oue moment that there was any suggestion of immorality. In his judgment, His Honour said that, as pleaded, it did not appear to him necessaTily to contemplate complete separation of husband and wife. The wife at ary timo, by no longer agreeing io fciego the consortium of hi' husband, could go Eo her husband, thereby losing the £4 a week. On the other hand, added the judgment, the defendant, by sLmply paying the plaintiff's passage money or the husband's fare to Eugland, could get oui of paying the £4 a week and could e-.'-ure, so -,'ar.as was humanlyx possible, 1'tiat- the separation of husband and wiff was torminated. His Honcur said that he- had no evidence whatever before him as to the motives which induced this agreement, aLc1 he knew nothing ubo'it the parties except what he gleaned from the staterient of aLun. There vas no separation deed as between Mr and Mrs Davies. The wife was, and had always been, ready to join her husband, and what the husband's attitude was he did not know. He did not think that futh an agieement would be void as against public policy. Therefore, the pieiiminary point must be decided in favour of the plaintiff. , Leave to appeal was granted,