CHILDREN BORN IN WEDLOCK

Hokitika Guardian, 7 March 1931, Page 2

CHILDREN BORN IN WEDLOCK

LEGITIMACY CASES. LEGAL ADMISSIBILITY OF EVIDENCE. An interesting rule of evidence that had its origin in feudal times is brought into discussion as a result of Mr Justice Herdinan’s judgment in an Auckland affiliation case in which lie cited the law that a husband or a wiic cannot illegitiinaii.se a child unless it is clearly proved that it was impossible for both of them to be its parents. iiio object oif this rule, it was explained yesterday .by Mr L. W. Gee examiner in evidence for the New Zealand University, has been to safeguard the interests of the child. The modern rule is that neither the testimony nor th declarations out of Court oi the parents are admissible to prove access or non-iceess during marriage with the object or possible result of illegitimntising a child horn in wedlock. The general grounds for this rule are that where e\ idunce is offered to prove liotiofiends against public morality, decency afid policy. Another rule, ot evidence is that it is a presumption that every child hdrii ill lawful wedlock is legitimate.,

As fal - back as the seventeenth century it Was ft rule of evidence that i'f a child was born in wedlock and the father was within the four seas at the possible time of conception the child would be presumed to he legitimate. Apparently at that time the rule depended on feudal law and was deesigned to secure certainty as to the person who wa.s to perform the feudal service. PUBLIC DECENCY AND MORALITY Mr Gee said that the basis ol the rule as existing in feudal times was now obsolete and in more recent times the rule was supposed to lie grounded on public decency and morality. In a ease heard in 1777, the judge. Lord Mansfield, stated that he regarded it as indecent and against public policy that the legitimacy of a child born in wedlock should lie called in question. The rule has been important- in cases where a child has applied to the Court for a declaration of legitimacy, in peerage eases, in eases under the poor law and more recently in divorce cases. In a case heard early in the nineteenth century the Court stated tTiat the grounds of exclusion of the wife’s evidence were that the interests of the child were affected as well as those ot the parents themselves. Again, in the Poulett peerage case, heard in 1903 Lord Halsburv stated that the principle protected the sanctity of marriage intercourse. CASES IN NEW ZEALAND. As fiir ns NeW Zealand is concerned the occasion for the evidence of a bushand or a wife being excluded Ims not arisen very frequently in legitimacy cases. In most of the affiliation cases the mother is unmarried, hut the rule tends to arise in divorce proceedings based on the grounds of adultery ot the wife.

Prior to 1924 the practice had grown up in the English Courts of admitting evidence as to non-access to undefended divorce eases. Then came the historic case of Russell v. Russell in 1924. That was a case where the husband and wife spent two days together at a time, when it was possible conception might have occurred. The child was born, and it was proposed to give evidence to .show that the husband had not had access to his wffo, although lie .was with her at that particular time. The rule was then made general that the husband was not allowed to gro evidence denying intercourse with the mother of the child born during wedlock if there was an opportunity for such intercourse. Such evidence would, however, be admitted after independent evidence had been given that the husband could not have had access to his wife, as, for instance, if

lie had been out of the country for a whole year or the parties were judicially separated. The House of Lords, in the case of Russell v. Russell refused to admit the evidence of the husband by a majority of three to two. A LATER. CASE. In a later case, Holland v. Holland, in 1925, it was - held that the rule did not apply where the child was stillborn. This decision is of interest because it shows that it is not so much The nature of the evidence that is objected to as the prejudicing of the interest of the child.

Some of the law lords pointed out, in the case of Russell v. Russell, that if the evidence were admissible in divorce cases there might be the peculiar result that in one set of proceedings a child would be held to he illegitimate, and the husband and wife lie divorced on the grounds of adultery being proved in that way, whereas the same •child in oth'r proceedings could get a declaration that lie was legitimate. That could arise if the Court admitted the evidence in divorce cases but not in legitimacy cases. To avoid this the Court would liav e to reject or admit the evidence in both cases. A CONFLICT OF OPINION.

Mr Gee said that some people thought, it was a great pity t’m.t the case, Russell v. Russell, was decided in the way it was. They contended that it. would have been better if the law could have been altered so that the evidence of a husband or a wife could be admitted in both divorce and legitimacy proceedings, as they were the best persons to prove or disprove the legitimacy of a child. His own personal opinion was that it was better to admit the evidence and let.

the Court decide as to what' weight should be given to it in a particular case; The modern tendency, Mr Gee continued j was to admit the evidence of all witnesses, but there were certain restrictions in criminal cases where a wife could not be called to give evidence against her husband without her consent.