MARITAL RELATIONS

New Zealand Times, Volume XLVI, Issue 10609, 7 June 1920, Page 5

MARITAL RELATIONS

WHAT IS DESERTION ? interesting legal definitions. An interesting judgment upon the. question as to whether a wife’s refusal to maintain marital relationship with her husband constitutes desertion was delivered by His Honour Air Justice Salwond at the. Supreme Court on Saturday. The case in which His Honour delivered his decision wag the petition of Savage Corry Evans for a dissolution of his marriage with Jane Ann Evans, on the ground of desertion. The hearing took place last week. His Honour said that tho marriage took place in 1902, and that four children were born in the years 1903, 1900, 1907, and 1910. About six months after tho birth of the youngest, child the respondent refused sexual mtercoureo with tho petitioner, and had ever since persisted in that refusal. In January, 1911, she left her husband, who was then living in Wainiatc, and in December of the same year, at her husband’s request, she returned to him at Wainiatc, but still persisted in her refusal of intercourse. She gave no reason for this refusal other than her dislike of men in general and of her husband in particular. On her returnto Wainiatc she lived in her own house, while her husband- lived in an adjoining cottage situated on the tamo section. The children lived with their mother, but remained on friendly terms with their father and visited liim. Ho continued to maintain his wife and children, and occasionally took meals in his wife’s house, though usually in hie own. His wife did not exclude him from her house, hut at night locked her bedroom door, and one or more of tbe children slept in her room. Since 1913 she had persistently refused even to,wear her wedding-ring. In April,l9ls. petitioner went to tbe war, returning to New Zealand in 1918. He attempted to resume normal relations with his wife, but she maintained her refusal. Ho abandoned his rcoidenc in Waimato, and became resident in the neighbourhood of Wellington. In December, 1919, be took away—his children from their mother, and they now resided with him. Since that time he had refused any longer to maintain the respondent, and she continued to reside in her own house at Waimate, maintaining herself by keeping hoarders. After the commencement of tho proceedings she made a formal admission in writing that, since May, 1910, she had absolutely refused 'all marital intercourse with her husband, and that she declined ever to live with him again. She had not made answer toi the petition. DEFINITION OF DESERTION.

“I aw of opinion,” said His Honour, “that the foregoing facto amount to wilful desertion of the petitioner for three years without just cause, and that the petitioner is entitled to a dissolution of his marriage/’ remarked His Honour. “Whether wilful or persistent refusal of sexual intercoms© without just cause amounts in itself to desertion is a question on which there is no conclusive authority. It is well established, however, that refusal of intercourse may amount to desertion when coupled with the termination in other respects also of the normal conjugal relationship, even though husband and wife continue to reside in the same house. If a wife, although 'residing with her husband, nob merely tefusea all sexual intercourse with him, but also in other respects deprives him of consortium et servitum—treating him as a mere stranger, and refusing any longer to accept the status or fulfil the obligations of a wife—she has, as a matter of law, deserted him, and, in the absence of just cause for such desertion, he is entitled to a dissolution of his marriage." MATRIMONIAL RELATIONS.

Proceeding, His Honour referred to a number of legal authorities, “I think it right to say,” ho .continued, ‘‘that the wilful and persistent refusal of marital intercourse without just cause seems to me to amount in itself to desertion,' and) that the refusal of a husband or wife to preserve normal conjugal relation s in, other respects is not as a matter of law a necessary element in the ground of divorce, but operates merely as corroborative evidence of (the petitioner's allegations. Desertion) is the act of either party to the marriage'in wilfully putting an ond to the state of maltrimonial cohabitation. To cohabit means in this connection to live together as man and wife. To live together as man and wife involves aa an essential element the establishment and continuance of normal sexual relationship. It is thial element thaib distinguishes the matrimonial relation from all other forms of human association. A wife is not entitled in the absence of special justification arising from consideration of health or otherwise to substitute for this normal relationship one which is that of husband and wife iu name only. If ehe docs so she has by her wiltul act put an end to matrimonial cohabitation, in the (true sense and lias therefore deserted her husband. -Matrimonial cohabitation has, I think, been sufficiently abandoned where there has been eliminated from it by the. wrongful act of either party the essential element which distinguishes it from all other kinds of lawful cohabitation. If (the laws were otherwise a woman could without just cause or excuse permanently refuse to 'consummate her marriage, and the husband would have no redress k) long aa she was willing to live with him in the nominal relation of man and wile. There can ho no legal distinction between a refusal to commence marital relations and a refusal to continue them. DECREE GRANTED, “houbtlcsa there are circumstances which constitute in law good causo for the refusal of sexual intercourse. It is not necessary, however, for the purposes of -the present case, to consider what those circumstances are, for no cause has been alleged or suggested. Moreover, there may well be oases in Which a wife is justified morally though not legally in so putting an end to her normal relationship towards her husband. 1 need scarcely add that when refusal of marital intercourse is set up as a ground of divorce, a serious burden of proof is borne by the petitioner, and that such aa allegation must bo treated with anxious vigilance and supported by the fullest corroboration. In the present case I am. satisfied that the allegations have been proved, and I make a decree nisi accordingly. with an interim order for tha custody of the children of the marriage by the petitioner, a motion for decree absolute to bo made in throe months.” At the hearing Air W, Perfy appeared for the petitioner.