ACTED IN COLLUSION

Sun (Auckland), Volume III, Issue 791, 11 October 1929, Page 1

ACTED IN COLLUSION

Divorce Petition Dismissed

KAIWAKA FARMER’S BARGAINING

R ' L /; E Th f husband and ’"'ife. who was proved guiltv of O adultery had acted m collusion in prosecuting the suit tor divorce, Mr■ -ustice Smith, in the Supreme Court today, ’ refused to grant John Percival Smith, a Kaiwaka farmer, dissolution of his marriage with Beatrice Smith.

This iras his Honour’s reserved derision on the amazing divorce suit between neighbouring Kaiwaka families in which the story was unfolded of Smith's alleged arrangement with the co-respondent, Joseph Archibald MoClean. who was to purchase petitioner’s farm and marry Mrs. Smith when divorced, and take over the two children. The petition was based on Mrs. Smith's adultery with McClean, who opposed the divorce on the ground that there had been connivance, condonation and collusion between husband and wife. HAPPY-GO-LUCKY HUSBAND Describing the petition as unusual, the judge pointed out that adultery between Mrs. Smith and McClean during 1927 and 192 S was admitted by rhe pair. He held, too, that petitioner was not aware of his wife’s misconduct until Christmas, 1928, as the pair used to meet secretly while the husband was away. “I formed the viow that the petitioner is a man of easy temper' and of happy-go-lucky’ nature and he did not allow his discovery—that the last two children born were co-respond-ent’s —to ruffle his feelings to his wife,” remarked the judge. After co-respondent had admitted misconduct, proceeded his Honour, an arrangement was made between Smith and McClean, under which the petirioner would divorce his wife, co-re-spondent to marry her, provide her and the children with a home and pur- ■ hase Smith’s property. These terms were incorporated in an agreement drafted for petitioner, by Thorne, Thome, White and Clark-Walker, solicitors, of Auckland. McClean and Smith signed the document, but the former did not want another solicitor to act for him in the divorce proceedings. The Judge considered that rhe solicitors concerned should not have acted in any way for Mrs. Smith or co-respondent. The clause in the agreement stating that a document had been en-

tered into by Mrs. Smith and McClean, at their request, and that their acts had not been condoned, connived at or forgiven by petitioner, did not really state the position, said his Honour. The judge held there was a conditional agreement that if petitioner divorced liis wife, co-respondent would take her over with the farm and children, that the suit should not be defended and tliat no claim for damages would be made by Smith. His Honour said it was unnecessary for him to decide whether the wife’s conduct with McClean had continued until August 8 last.' He had decided that adultery had been proved. DEFENCE NOT PROVED The defence of connivance had not been proved, said the judge, who pointed out that Mrs. Smith and McClean met secretly, and co-respondent had confessed that the husband was unaware of the affair. It had to be clearly shown that it was the husband’s intention the wife should commit adultery and in this case the evidence fell short of that requirement. Nor had condonation been proved. Condonation meant complete forgiveness and the wiping out of the offence and the reinstatement of the wife in her former position. Living under the same roof did not imply condonation. Because the husband took meals with the family and showed consideration to his wife did not justify his holding that Smith had forgiven his wife. “Whether condonation would have been proved if the wife had defended the petition and told all she knew is another matter,” observed tlie judge. On the question of collusion, the judge decided that tlie proceedings for divorce were instituted under a collusive agreement among Smith, Mrs. Smith and McClean, but that the suit had been prosecuted under a collusive agreement between Smith and Mrs. Smith only. Petitioner did not abandon the suit and file a petition free from collusive taint and the petition was therefore dismissed. Mr. Inder and Mr. East appeared for petitioner and Mr. Meredith for the co-respondent.