The Daily News SATURDAY, APRIL 3. AN UNJUST LAW.

Taranaki Daily News, Volume LII, Issue 59, 3 April 1909, Page 2

The Daily News SATURDAY, APRIL 3. AN UNJUST LAW.

lOn the tenth of last month the English r ; Court of Appeal delivered in a divorce ji petition ease, a most important jndg- v ment, which is of special interest to t people in New Zealand, for according to 21 Alr George Hutchison, a well-known Wanganui barrister, the decision applies to similar cases in New Zealand. Kur•prising as it may seem six Judges of the Court of Appeal agree in deciding that a j woman who lias obtained a separation order from her husband, on the ground of desertion, unless that desertion has lasted for two years before tile order is obtained, is for ever barred from obtaining a divorce, no matter what the subse-' . quent conduct of her husband may be. j The case in which this decision was given was one affecting a husband and wife who had lived together happily for ten years, when one morning lier husband left for his work and did not return. 5 Right mouths later the wife obtained a • separation order fioiu iV magistrate, coupled with an ordei *or the husband to ; pay her 25s a week towards her .maintenance. The latter order was neve: ' obeyed. Subsequently she discovered that her husband had been guilty of misI conduct and she brought an action for 1 divorce. The Judge who heard the ease ! refused to grant the wife's petition on the ground that the Divorce Court only recognised desertion when it is of two years' duration, and he further decided that the husband could not be held guilty of desertion after the wife, by her own act, had secured an order forbidding him to live with her. The Appeal Court Judges agreed that the case would have been diJferent if tile separation orderhad been granted on the ground of cruelty, and one of the Judges, while agreeing with the decision oi his colleagues, declared that it was « serious reproach on the English divorce laws that the relief granted was usually out oi the reach of working classes because of the expense. A wife havhig proved that her Husband had been guilty of desertion or cruelty should be granted a divorce as a matter of course if she were entitled to a decree on the ground of her husband's misconduct. An English barnaui, ,n commenting on the Appeal's Court decision, says that its effect is '' to prevent a woman who has obtained a separation order from a magistrate on the ground of desertion of less than two years from subsequently obtaining a divorce. For while a separation order may be obtained for desertion of short standing, the . Divorce Court only recognises desertion of two years' duration at least. Consequently the difficulty which the decision lias created, and the Court of Appeal lnts now perpetrated, is to be found in the legal decision that a magistrate's separation order puts a stop to the desertion of the husband. If the woman is to be regarded in the eyes ot the law as a single woman thenceforth, it follows that there can be no legal obligation oil tile husband to return to her. Therefore, if at the time of obtaining the separation order from the magistrate the desertion has not extended to two years, the unfortunate woman can never allege before the Divorce Court a length of desertion which will enable it to grant a decree nisi." The position of the thousands of meu and women annually separated by magisterial order is regarded by the judges themselves as a menace to the morals of the community. Ten years ago 5,1)4!) such orders were made, releasing from cohabitation but not giving power of remarriage to 11, SOS persons. Last year 7,158 orders were; made, again releasing from cohabitation but not alt lowing the remarriage of 14,31(j persons. ► As Sir Gorell Barnes, until recently the President of the Divorce Division, lias ► pointed out, the direct tendency ot these ► orders appear to bo to encourage immor- 1 ality and to produce deplorable results. This being so, there are two alternatives which would eiVcct the required change. The one would enable the magistrates to decree divorce as well as to order . separation, and the other would make the Divorce Court itself reasonably accessible to the respectable poor without their being compelled to sue in foriua pauperis. Legislation is being asked for in England to remove the injustice which will be inflicted on many thousands of people while this decision holds good, and if it is found that the same anomalous position exists in New Zealand, the Government should take the first opportunity of amending the divorce laws in the direction required.