“SCANDAL” IN COURTS

Taranaki Central Press, Volume IV, Issue 463, 3 July 1937, Page 7

“SCANDAL” IN COURTS

DISCUSSION BY LAW LORDS. Facing Realities ■Reference to “scandalous matters that emerge in the law courts affecting marriage” was made in the House of Lords recently during the resumed hearing of ten appeal by Miss Emily Fender. Miss Fender, a former State-regis-tered nurse, sued Sir Anthony Sr. John-Midmay in the King’s Bench Division for breach of promise. A jury assessed damages at £2OOO, but Mr. Justice Hawke held that he could not enter judgment for Miss Fender. His reteson was that the promise was made when Sir Anthony’s marriage to the first Lady St. John-MV.d-may was still subsisting, namely, after her divorce decree had been granted, but before it was made absolute. ; The Court or Appeal confirmed the decision and Miss Fender now appealed. Mr. R. P. Croom-Johnsson, K.C. reumed his arguments in support cf Sir Anthony St John-Mildmay’s contention that the promise of marriagesued on by Mist Fender was illegal because it was made by a married man and because it was agiainst public policy to enforce such a contract,, as it tended io induce immorality and to prevent a reconciliation between the- man and his wife. Dealing with the application of* the rule of public policy, Mr Green-John-son remarked that it had been held that a tendency to induce immorality was against public policy. Value of Husband.

Lord Thankerton said the rule of public policy must be one, not. for the benefit of the particular spouse injured, but for d-d-ling with cases in which the public good was affected. A particular spouse and a particular act of adultery were not what they hbd to consider; they had to consider was something with which the public interest was concerned'. Mr. Croom-Johnson submit/ted that any promise to marry made by a married man was invalid in Jaw whether the woman to whom the promise was made knew or did not know he was a married man. It is difficult to think,” he observed. “that it can be in the interests of the institution of marriage to promote a contract between two people, the result of which would be that ■while the marriage is subsisting, the man can be sued in the- lifetime of his wife for the purpose of getting damlages for an anticipatory breach of the contract to marry. That would be a scandalous. state of affairs.” Lord Russell: Could the living wife be properly called as a witness to testify to the value of her husband or to estimate the value of his loss? “Scandal” Not a Ban,

Mr. Croom-Johnson: I suppose so, and also ;as to the state of health, the age of the living wife and her expectation of life, and the possibility with which the contract to marry could be performed it it were valid. All sorts of really most scandia lous things would have to go on m tny-ing out such a matter. Lord Wright: Scandalous matters do emerge from time to time in the law courts affecting marriage. Lord Aitken pointed out that the same scandalous things would happen if a contract was made to confer a benefit on some woman on the death of the wife and the husband did not perform that contrlact. Nevertheless such a contract could be sued on whatever the scandal might be. Mr. Croom-Johnson remarked! that he was not putting the matter on the ground of scandal or of the pain it would cause the wife if such an action were permitted. He was introducting the scandal for the purpose of showing the effect of such a contract on the institution of marriage. Lord Wright: Suppose a married man made a settlement or promised to transfer some money to another woman for an immoral consideration and an action was brought you would have all sorts of scandals, but you coul'di not exclude th-a- action for that reason. Engaged Couples, Mr. Croom-Johnson remarked thlat apart altogether from any question of sexual immorality or any undue familiarity, one would expect people engaged to be married to be giving one another the familiarities which'were common with engaged couples—association together, kissing , .fondling, '-nd an inclination for one another’s society at the expense, vs-ny often of tihe society which their friend,had previously had with them. All those things, he said, were quite inconsistent with the’institution of marriage and, when one of the engaged parties was already a marLd man, such an engagement would >□ against general public morality.

Mr. Croom-Johnsen also submitted it was not necessary that he should go so far as to show that contracts to marry, such as the one in that case, were unenforc l.ble because of their tendency to induce sexual immortality. The association of a married man with an unmarried woman might be pcgLrdied with suspicion because of the view which some people would form that such an association could not, in the result, be an innocenlt one. If Judge is “Susp cious.” Lord Atkin: Do you mean that a suspicious judge would find such an association to b-a contit. ry to public policy, whereas an unsuspicious. judge I would not? i Mr. Croom-Johnson: This suspici ion lies at the root of the inference which the English Divorce Court is asked to draw- every day, and is entitle'Jl to draw. Proof of act-i? 1 adultery is. somewha.t rare. The judge, as a rule, is faced with evidence from which he infers adultery. “The inference that is drtwn,” he continued, “is based upon what the court thinks is satisfactory proof of an inclination, plus opportunity. The inclination is. usually shown by giving roof of some facts tending to familiarity, such as th-3 use of fam-il’a-r names, kissing, end so .forth—plus opportunity. “That is, normally, in the Divorce Court, the kind of evi’diemce upon whuch the court -asked to infer ’ adultery ” | Mr.. Croom-Johnson proceeded to ; argue that there was no difference between tne position of married people after the decree nisi had been made and their position before the

lecree. Lord Atkin: Surely tha-t is not so. Let us deal with realities. Does any- I body doubt that in 99 per cent, of j the cases when a decree nk-i has | been made there will be a decree absolute in about six months Mr. Croom-Johnson: In a. large per- ; centl.ige of cases undoubtedly that is • so, but there is still the possibility ' tha<t the decree will not be made ab- ; solute. [ Lord Atkin: A. wife does not bring-' a petition to have a kind of option ! and then afterwards make up her ; mind whether she shUll have a do- | i ciee absolute or not. She only asks * divorca proceedings on the footing j that it is a very serious, if not an ! iri evocable, step—-speaking generally, j ; one of -the most serious steps a 1 ■ woman can take. j Mi. Croom-Johnson said a contract ■ ■ whose tendency ■ was a lead to a j breach of the rules' of morality was' , | just as much against public policy j when it was made, after a decree nisi as if it was .made before. Forthcoming Fixtures '■ -. ' 4 ’■ • July 6,8, 10—Wellington RC. July 17—Hawke’s Bay Hunt Club. July 17—Waimate Hunt Club. July 24—South Canterbury Hunt Club July 24—Rangrtikei Hunt Club. July 29, 31—Poverty Bay T.C. July Bl —Christchurch Hunt Club.