HOME OWNED BY MAN AND WIFE

Press, Volume LXXXIX, Issue 27107, 1 August 1953, Page 8

HOME OWNED BY MAN AND WIFE

EFFECT OF ORDER FOR SEPARATION QUESTION OF TRESPASS BEFORE COURT The question whether a husband, against whom a separation order has been made and who is the joint owner with his wile of the home, commits trespass by going on to the property, was submitted to Mr Justice Nortncroft in the Supreme Court yesterday for decision. His Honour said that, as the matter had been referred to him by the Magistrate and other Magistrates might wish to have this Court's guidance on it. he would take time to consider the authorities referred to by counsel, and would state his reasons in writing, although he had already formed a very positive view. The case was one stated under the Justices of the Peace Act by Mr Rex C. Abernethy, S.M.. in which Kathleen Higgs, a married woman, proceeded against her husband. Frederick Higgs, a fencer and farm labourer, for trespass. Mr B. G. Dingwall appeared for Mrs Higgs, and Mr B. J. Drake for Frederick Higgs. Mr Dingwall said this was a-private information laid by Mrs Higgs against her husband, alleging an offence under the Destitute Persons Act. 1910. The appropriate section of the act said that so long as a separation order was in force a wife was under no obligation to cohabit with her husband, and if the husband entered in the premises occuSied by his wife he committed trespass, liggs and his wife were the joint registered owners of a home at 22 Humboldt street, but not under the Joint Family Homes Act. On April 20 separation, maintenance and guardianship orders were made in favour of Mis Higgs by Mr Rex C. Abernethy, S.M., on the grounds of the husband’s habitual inebriety. Earlier Charges Dismissed Before tne orders were made the husband had been employed in the country, but for some weeks before tne order being made he was in Christchurch and was sleeping in the matrimonial home, said Mr Lingwall. On the morning after the separation order was made he went back to his work at Birdlings Flat. On June 9 the husband came to Christchurch and, against his wife’s wishes, entered on the property. As a result of that occurrence, said Mr Dingwall, the husband appeared in the Magistrate’s Court on June 10 on charges of assault and trespass. Mr Raymond Ferner, SM, felt he was bound by previous decisions in the Magistrate’s Court on similar cases, and dismissed the case on the ground that if the home was jointly owned the husband could not be a trespasser. On June 17 the husband again entered the property against his wife’s wishes and it was in respect of that occurrence that this present information was laid. Mr Dingwall submitted that the statement that there could be no trespass by co-owners was a general statement of the law. but it must be read having regard to the statement that exclusive right-of possession was the right affected by trespass. There was no reason why one of the joint owners should not. by the law or in the law, surrender his right of possession. If he lost that right, then the remaining occupant might maintain trespass against the co-owner. It was a legal consequence of the separation order, made by the Magistrate, that the wife had exclusive occupancy of the house. There was no absolute right of a husband to eject his wife from the matrimonial home. The law now was that the deserted wife had a licence to occupy the home until that licence was terminated by the Supreme Court under the Married Women’s Property Act. A case had been decided in England where, when a deserting husband had committed other matrimonial offences. such as cruelty, the wife could keep the husband out of the home. The order of the Magistrate for separation had the effect in all respects of a judicial separation on the ground of cruelty so. in the present case, the wife was entitled to keep the husband out of the home, and he committed trespass by entering it. . The right of a wife to the matrimonial did not cease after a, separation order was made. Mr Dingwall submitted that the Court should accept the view that the

wife had the right of possession and that the husband, as joint owner, had lost his right to possession and trespassed if he entered in the property. Counsel for Husband Mr Drake said that the only statutory right under a separation order was that a wife was no longer bound to cohabit x*ith her husband and a separation order “might” have the effect of a judicial separation made on the

ground of cruelty. The question of property aid not come into the matter at all. If counsel for the woman in an application for a separation order asked the Magistrate to decide a question of property he would be told in no uncertain manner that this was a matter for other proceedings. The question of possession of the matrimonial home was one to be decided in summary way by the Supreme Court under Section 19 of the Married Women's Property Act, 1952. The decisions relied on by Mr Dingwall would be material to an application under the Married Women’s Property Act, but they could not be material to the effect of a separation order, said Mr Drake. The legislature had given express powers to the Courts to deal with tenancies where there was joint ownership or where they came under the Joint Family Homes Act. An order tp vest a property solely in the wife could be made under express statutory powers, but not under the Destitute Persons Act. There was no such express power in a case such as the one now before the Court, and it could not be done by implication, as Mr Dingwall suggested. “There is no power under the Destitute Persons Act for a Magistrate to make an order taking away from a husband the right to occupy his own property,” said Mr Drake. “The effect of a separation order is that the wife is no longer bound to cohabit with her husband. The question now before the Court is whether a man, who is the joint owner of the property and has not surrendered his rights to that property, can be guilty of trespass on that property. It comes to a consideration of whether the making of a separation ordpr is the equivalent of desertion by the husband and cruelty so as to give the wife the right to exclusive tenancy. I submit that the cases do not go as far as that, or as far as Mr Dingwall contends. Higgs has asserted no right to remove his wife from the property. All he has done is to go back from time to time to see the children. In this case the husband is not in desertion. He is constrained by the Court from cohabiting with his wife. All that has been made between the parties is a separation order and it does not confer on the wife the right to exclusive occupancy of the jointly owned property,” said Mr Drake. His Honour said he would give his decision in writing.