NEW DIVORCE ACT.

Hokitika Guardian, 16 August 1921, Page 4

NEW DIVORCE ACT.

JUDGE DISMISSES TWO PETITIONS, tl In 4 a two judgments in the Supreme Court c in divorce yesterday, dealt with clause 4 , of the Divorce and Matrimonial Causes t Act of last year, which makes divorce t much easier than it was before. In t each case heard by his Honour a separa- 1 tion and maintenance order had been ] made bv a Magistrate against the husband, and in each case the husband had petitioned for divorce on the ground oi , separation for at least three years tinder the order. His Honor dismissed both petitions. A CLERGYMAN’S PETITION. In the first petition, by Arthur Reginald Sutcr Holloway, who is in orders as a clergyman of the Anglican Church, but is not actively engaged in church work, being an agricultural instructor under the Canterbury Education Board at Timuru, his Honor said: — “1 have come to fc|)e conclusion that I should exercise my discretion against the petitioner in the present proceedings. He bases his claim to have his marriage dissolved upon a separation order made against him by *’ Magistrate ai the instance of his wife on April 10. H)].y The grounds upon which the separation order was made Were that lie had lioon guilty of persistent cruelty to his wife and to his children, and in particular that he had assaulted her, ' and had threatened to cut her throat,and had habitually used insulting and vile language to her, and had kicked and injured his daughter, who was ton years of age, and had failed to provide his wife with adequate maintenance. Petitioner now says that these allegations were untrue, and that he had ' allowed the order to pass without opposition. Whatever petitioner did or " did not in fact do at the time the ' Magistrate made the order, does not 1 .seem to me to matter now. The Magis--11 trate heard the complaint, and must

have acted upon some proof, when he made the order. He must have considered any consent to an order filed by petitioner, and he must have decided that some, if not all, of the allegations made by the wife had been proved or admitted. If petitioner tiled a consent, and it appears that he did, then his consent, if it had any legal effect at all. amounted to an admission of the (Targes made against him. “The present proceedings are taken bv petitioner under section 4 of the Divorce and Matrimonial Causes Act Amendment Act, 1920, and are opposed by his wife A The question, therefore, is: Should petitioner, who claims a decree upon the ground that he is a party against whom a separation order has been made by a Magistrate in The cir-

cumstances narrated abo -\ receive any consideration at all trom the Court. Without any hesitation I decide that in sU' h a case relief should not be granted Neither upon the ground of public interest, nor upon the ground that a dissolution of the marriage may he of advantage to either the petitioner or the respondent, or both, should the Court interfere. Respondent does not want the marriage dissolved, and petitioner is certainly not entitled to receive any favour at the hands of tin l Court. Il I grant a decree in this case, then it seems to me that I lay down the principle that a husband, having grown tired of his wife, and wishing to have the marriage dissolved, may ill-treat her, until, in despair, she is lorced to leave him, and apply to a Magistrate i'lli ; i separation order, thus enabling tlie husband, if the order made against him remains in full force for Three rears, to petition success!ally to have his marriage dissolved. “In like manner, a husband may de*ert his wife, without reasonable cause, lie intimates that he does not intend to maintain her, so causing her to seek relief at the hands of a Magistrate, the husband knowing full well that ii ;) rder made against him remains ill full force for three years he will he entitled to petition to have his marriage dissolved.

“In both the above cases, tt wile, ol -niise, would have the right to apply for and obtain the decree in her favour, lint I cannot bring myself to believe that public policy requires that, in the instances which I have just given, the discretion of the Court .should he exercised iu favour of the husband. “It is no doubt true that the mainnjro between tlie parties has in fact -nine to an end, but il the termination f matrimonial relations has been rotight about not by the parly "ho i-, sists tin' proceedings, but by the deliberate and unjustifiable misconduct ol the parlv who seeks the Court s invour, the Court should, in my opinion, declare that it will refuse the relief sought, for the reason that petitioner’s misconduct has disentitled him to any consideration. “Some eases may arise in which it would he expedient for the Court to exercise its discretion in favour of a petitioning husband whose misconduct has resulted in a Magistrate’s order being made against him, hut it is dillicult to imagine such a ease. At any rate, it is quite clear that the present case is not one ol that kind. Ihe peti- i lion will he dismissed with costs on the higher settle, witnesses’ expenses and lisbmsements to he settled by the Registrar.” Mr 0. T. J. Alpers appeared for petitioner, and Mr K. M.. Giessen lor lespondont. MASON V. MASON. In Andrew .lames Mason, telegraph linesman, petitioner, and Henrietta Wniifrod Mason, respondent, his Honor said :—- “For the reasons which I have given in Holloway and Holloway, I am ol opinion that this petition should be dismissed. The petitioner, without just cause, deserted respondent in July, (OKI, and I have been unable to discover anything in the evidence which afforded any justification for Ins eonduct. Because of her husband’s desettion, respondent was compelled to an' - to a Magistrate for relief, and a separation order was made against petitioner oh August B, 1910, on the ground that lie intended to tail to provide her and her infant child with adequate means of maintenance. The Magistrate's onlei remained in force for three years, and has been obeyed by petitioner. Against his wife’s will, petitioner caused the relationship of husband and wife to come to an end. She was always an unwilling party to a state of affairs created by her husband alone, and she now seriously opposes a step which he

has taken to dissolve finally and completely the marriage bond. In principle, there *?s nothing to distinguish this case from Holloway v. Holloway, my decision in which T have just read. The Court should not view with favour an application made by one whose misconduct lias produced a state of affairs upon which he founds his application for the Court’s assistance. I shall, accordingly, dismiss this petition, with costs on the higher scale, witness’s expenses and disbursements to he settled bv tlie Registrar.” Mr F. D. Sargent appeared for petitioner, and Mr T. AY. Rowe for respondent.