WHOSE RESPONSIBILITY

Auckland Star, Volume LVII, Issue 54, 5 March 1926, Page 9

WHOSE RESPONSIBILITY

THE DIVORCED WIFE. MUST THE HUSBAND FAT? DIVORCE DOES NOT END DUTY. Does a divorce end a husband's obligation to maintain his former wife under the Destitute Persons Act, 1910? That was the question in issue in a Magistrate's Court case which formed the subject of a judgment delivered today by Mr. J. W. Poynton, S.M. The judgment is of interest to women who have- obtained a maintenance order before applying to the Supreme Court for divorce. "I am of opinion that a decree absolute of the Divorce Court does not, ipso facto, cancel an order for maintenance made in the Magistrate's Court, but that an application must be made under section 39 of the Destitute Persons Act before it can be cancelled, and that each case must be considered on its merits," was the Magistrate's reply to the question. In the case which the Magistrate reviewed, a married woman obtained a maintenance order against her husband. The order was now in arrears, and she sought to enforce it by claiming the arrears. Respondent had lodged an application to have the order cancelled on tho grounds that he was no longer her husband, as petitioner hael obtained a decree absolute in divorce against him.- Under the Destitute Persons Act the only way to put an end to an order Was under the provisions of section 39, which gives the Magistrate power to suspend, vary or cancel an order, said Mr. Poynton, S.M. Death is provided for under section 30, but no provision is made for divorce. It was urged on the husband's behalf that divorce put an end s to the order. How can a man be compelled to contribute towards his wife's support, when she is no longer his wife, when she is declared by the Act to be _,n unmarried woman? An unmarried woman is defined by the Act as including a widow, and a woman who has been divorced from her husband. But the Destitute Persons Act, in addition to dealing with common law obligations, considers the community. It provides that near relatives who were not compelled by the common law to support their destitute relations should do this. A person cannot by contract evade his obligations under it. (George v. George, G.L.R., 1917, 512). But in the Divorce Court a lump sum may be paid as alimony to the divorced wife. Her claim would then cease, no matter how dependent she might become on tho public afterwards. The Divorce Court in all cases where it grants a decree absolute has power to make it a condition precedent to such that some provision should be made for the divorced wife's maintenance by the exhusband, and does so in all cases if necessary, where the wife is blameless and without means. Here she is the petitioner and the innocent party. Does she lose her right to support because she has divorced her erring husband? Is her only right one to appeal to the Supreme Court for alimony, the divorce depriving her of the alimony ? Where Hardship Would Follow. "Our courts afford an inexpensive, simple and efficacious procedure to get maintenance orders, and it would be often a hardship if such an order ceased on the marriage being dissolved," said Mr. Poynton, S.M. "It would encourage husbands to misbehave, with the idea of forcing their wives to divorce thorn, and discourage married women to refrain from petitioning for divorce for fear of losing their maintenance." It had been suggested that orders for alimony should be transferred to the Magistrate's Court by a simple process, as maintenance orders. The magistrate thought this would greatly simplify their enforcement. His Worship proceeded to demonstrate the injustice of .a woman divorced for continued mental infirmity being thrown upon the taxpayer, simply because divorce cancelled the husband's responsibility for her. The definition of "a married woman" relied upon by Mr. Matthews (for tho petitioner) was, the magistrate felt sure, intended to apply only to proceedings under section 9. There-were obvious reasons why this section should relate only to married women- It had' no application to the case at all. In refusing the application for cancellation of the order, Mr. Poynton, S.M., said that, as it was an important point, it might be advisable to get an authoritative decision by the Supreme Court. Security for appeal was fixed at £10 10/. Albert Edward Rivers (Mr. Matthews) asked for the cancellation of the order and respondent was Helen C. Rivers (Mr. W. W- King, of the firm of Jackson, Russell, Tunks and West). The case relied upon by Mr. W. W. King for the respondent *in the case under review was Bragg y. Brae™ (L.J.R., 1925, and P.D. Act, p. II ) in which the facts were almost the same. In that case the magistrate held that the decree absolute did not terminate the maintenance order. His. decision was appealed against, but upheld. It was held that a woman must be married at the time when she applied for an order for maintenance, but when an order was once made the discretion of the summary court to continue it was not affected by the fact that the marriage had in the meantime been dissolved.