NOT CONDONED.

Auckland Star, Volume LXVI, Issue 185, 7 August 1935, Page 8

NOT CONDONED.

WIFE'S MISCONDUCT.

DIVORCE PETITION SUCCEEDS.

INTERESTING LEGAL ASPECTS

A decision that the respondent, Alice Jessie Burbidge (Mr. Duggan) and the co-respondent, Robert John Hibberd (Mr. Sullivan), had committed misconduct and that their misconduct had not been condoned by the petitioner, Alfred William Burbidge (Messrs. Singer and Robinson), was given by the jury yesterday afternoon at the conclusion of the hearing of a defended divorce petition which lasted five clays.

Jlr. Singer in addressing the jury contended that if the respondent and corespondent had done their duty there would have been no defence to the petition. His client was put to ruinous expense in meeting his wife's costs, and the jury's and other expenses. Respondent and co-respondent had the audacity to invite the jury to believe that they had, after living together as man-and wife at Glen Eden in 1»29, entered into a solemn compact not to continue their relations. In regard to the subsequent allegations of misconduct, Mr, Singer asked the jury to iind that there had not been condonation. Condonation, he said, was the forgiving of a matrimonial offence when there was complete knowledge of all the facts. Counsel stressed the association of the respondent and corespondent during the past live years and said that the jury were entitled to deduct from it that the illicit conduct had not ceased.

Absence of Direct Evidence. In explaining the legal aspect of the alleged misconduct, his Honor said it had been held that an inference of guilt or not could be drawn when direct evidence was lacking, as was so often the case. It had been stressed by both respondent's and corespondent's counsel that in no single instance had the parties been caught in anything approaching a compromising attitude. That might be, but judges and juries in the exercise of common sense had been convinced of misconduct again and again when there had been an absence, of circumstances which had been commented on in the case under review. The jury must apply their common sense and knowledge of human nature. If they felt that what they had heard left no reasonable doubt that misconduct had occurred then they should give effect to their feelings. If they only felt suspicious then they would find that misconduct had not taken place. It was abundantly clear, said his Honor, that Hibbert's association with the respondent had been persistently opposed by his wife. The jury might ask why the association between the respondent and the co-respondent, bringing as it did unhappiness in two homes, should continue unless it was a guilty one. Condition of Condonation. Advising the jury on the matter of condonation, his Honor paid that condonation was a conditional reinstatement of an offending spouse, always subject to the condition that the olTenee should not recur and that all the circumstances have been made plain. He would state also as a matter of law that there could be no condonation if the forgiveness had been obtained by fraud. If the jury was satisfied that the respondent had broken her promise not to see the co-respondent again after the episode at Glen Eden, and had concealed the fact of subsequent meeting before her return to the petitioner, then no legal value could be placed on her return. The jury returned its verdict in petitioner's favour after a short retirement. His Honor granted *a decree nisi, but reserved the question of the custody of the three children until to-day.

Custody Of Children. When the matter came before his Honor this morning Mr. Duggan stated that counsel had come to an arrangement concerning the custody of the children. It had been agreed that the father should take the eldest son to Dunedin with him, and that the other two younger children should be placed under the supervision of Mrs. M. Molesworth. inspector of the Society for the Protection of Women and Children. Mr. Singer concurred, saying that the arrangement was that Mrs. Molesworth should find a home for the two children, and that the husband would pay their maintenance until such time as he could find them a home in Dunedin. His Honor made an order of custody in the father's favour in the terms which counsel intimated had been arranged. ' The question of the respondent's costs was deferred for argument.