DIVORCE LAW.

Taranaki Daily News, 18 June 1921, Page 6

DIVORCE LAW.

SEPARATION BY MUTUAL, CONSENT. DISCRETIONARY POWERS OF JUDGES. Interesting argument as to the discretionary powers of a Supreme Court Judge in respect of section 4 of the Divorce and Matrimonial Causes Amendment Act, 1920, was heard in tjhe Wellington Supreme Court on t’uesday, during consideration of a petition for dissolution of marriage. This section of the Act provides:— It shall be lawful for the Court, in its discretion, on the petition of eitJier of the) parties to a decree of judicial separation, or to a separation order made by a Stipendiary Magistrate, cr by a resident Magistrate, or to a deed or agreement of separation, or separation by mutual consent when such decree, order, deed, or agreement is in full force and has so continued for not less than three years, to pronounce a decree of dissolution of marriage between the parties, and in making ' such decree, and in all proceedings incidental thereto, the Court shall have the same powers as it has in making a decree of dissolution in the first instance.

The case, heard before Mr. Justice •Salmond, was one in which William George Lodder asked for a decree nisi against Cecilia Rutherford Lodder. Mr. H. R. Blair appeared for the petitioner, and Mr. T. Neave for the respondent. The parties had been separated from each other since 1908.

Mr. Blair said that separation had been effected, under deed, in September, 11K>8, for mutual reasons, and the parties had not lived together since. The petitioner said that he was an engineer, living at Petone, and that the parties were married on June 1, 1882, in Glasgow. After their arrival in New Zealand they lived at Petone. The separation was caused by continual disagreements. Petitioner had paid his wife maintenance, and would continue to do so, having made arrangements for her upkeep in his will.

To Mr. Neave: There were no children of the marriage. Petitioner was 64 years of age, and his wife was 60. He had no present idea of marrying again. He admitted that his wife had become jealous of another woman witft whom he had remained on friendly terms since the separation. He was the chief engineer of the Gear freezing works at Petone. H? had nothing whatever to say against his wife as a woman. To Mr. Blair: His relations With the other woman were perfectly harmless.

In opposing the petition, Mr. Neave said that Mrs. Lodder did not wish a decree made against her. Giving evidence, Mrs. Lodder said that she had lived happily with her husband for several years. Previous to 1908 she had been quarrelling with‘him only a few years. Counsel: You took objections to his attentions to another lady? Respondent: “Certainly!” She added that since the drawing up of the deed of separation she had lived at Auckland. ’ She opposed the petition on principle. “I have never given him cause whereby he should have a divorce,” she said. “On religious grounds I object. I belong to the Presbyterian Church.” His Honor: Do you wish to go back to your husband? Respondent: Yes, if he wants me to. • . . . I have never made any suggestion of returning. I think it hard that after thirty-nine years of marriage I should be branded as a divorced woman.

His Honor commenced to explain the operations of the clause under which a decree was asked.

Respondent interrupted him, saying: “It’s all right for young people.” His Honor, continuing, said the application under clause 4 of the Act did not make any charge against either party. A divorce could be obtained without the commission of any offence by either party, provided they nan been separated for over three years. Respondent complained that under the new divorce law she was not allowed

“three year’s probation.” Further, she considered the allowance of £l2O a year made her by the petitioner was insufficient for her needs, and she asked for £2OO. She admitted having been offered an increase in allowance if she would comply with certain conditions.

Mr. Neave said the Court should not exercise its discretion in making a decree against an unwilling party. He submitted that the covering section of the Act (section 4) pre-supposed the willingness of both parties for the divorce by mutual consent. The Court could not justify the making of an order against the respondent unless on the ground of public policy. There was little likelihood of the parties marrying again. A divorce would mean to the respondent the loss of certain rights which were valuable to her. The dissolution, if made, should only be made on terms, providing for an increase in the respondent’s allowance, and for the protection of the rights of the respondent.

His Honor remarked that in such cases in seemed that the respondent should be provided for, not merely by an increased allowance, but by something akin to a charge on petfttoner's estate.

Upon Mr. Neave saying that there was no legal precedent in the case, which was a peculiar one, His Honor said: “It appears that the Legislature has left it to the Supreme Court to amend the Divorce Act as it thinks fit!” . Mr. Blair said that the “mutual consent” section of the Act was included

in order to remove the unjustifiable stigma attaching to some divorce proceedings. Discretionary power was always with the Court, he contended. The petitioner did not wish to shirk any pecuniary responsibilities. Provision should be made for the respondent during her life time. Decision was reserved.