SUPREME COURT

Press, Volume XCII, Issue 27699, 1 July 1955, Page 5

SUPREME COURT

PETITION FOR DIVORCE OPPOSED

After a day of legal argument in the Supreme Court yesterday before Mr Justice Cooke the hearing of a petition by Patrick Francis Kearns, a police constable, for divorce from lolanthe Barbara Kearns on the ground of adultery, was adjourned to this morning. Mrs Kearns is opposing the petition. William Williamson, a hotel manager, is cited as the first corespondent, and Charles Raymond Morris, a metal spinner, as the second co-respondent. Kearns is represented by Mr J. B. Weir; Mrs Kearns by Mr J. G. Leggat; Williamson by Mr B. McClelland; and Morris by Dr. A. L. Haslam. Mr Weir said that the issues before the Court were adultery on the part of Mrs Kearns and condonation on the part of Kearns which Mrs Kearns alleged in her answer. His Honour said that in discussions with counsel in chambers he expressed the view that the issue of adultery was one for a jury but all counsel took the opposite view and asked that all issues be decided by his Honour. Mr Weir said that Kearns in a petition of August 2, 1952, sought a divorce from his wife on the ground of her adultery with Williamson on August 2, 1952. In her answer Mrs Kearns denied adultery and also raised the defence of condonation. Williamson also denied adultery. Kearns later admitted that he had resumed cohabitation with his wife towards the end of September, 1952. In a supplemental petition he alleged that his wife committed adultery with Morris on November 26, 1953. Mrs Kearns and Morris denied the alleged adultery. The evidence would disclose an intimate association between Mrs Kearns and a third party not joined in proceedings and probably with a fourth person. Legal argument followed on the question of whether the pleadings were in proper order for the case to proceed. The Court adjourned to give Mr Leggat an opportunity to consider filing further answers on behalf of Mrs Kearns. Later Mr Weir asked that the case stand adjourned for hearing anew before another judge. Mr McClelland and Dr. Haslam said they could not consent to this. They were ready to proceed with the hearing. Mr Weir said that the petitioner was not seeking a decree on the ground of his wife’s adultery with any person not a party to the present proceedings. The evidence of intimacy with any non-party would be led to negative any plea of condonation. Further legal argument was submitted before the Court was adjourned to this morning.

DECREE ABSOLUTE GRANTED DECISION ON QUESTION OF CONDONATION In a reserved decision, given in the Supreme Court yesterday, Mr Justice Adams granted Pauline Creedon (Mr E. B. E. Taylor) a decree absolute on her petition for divorce from Arthur lan Creedon (Mr B. McClelland). “On May 16, 1952, petitioner obtained a decree nisi for a divorce from her husband on the ground of adultery committed by him with an unknown woman on December 15. 1951,” said his Honour’s decision. “The decree nisi was followed by condonation and a resumption of normal cohabitation, the husband having promised to be faithful and to refrain from further adultery. This occurred in. December, 1952, and the wife then went with her two young children to South Westland where they continued to live with the respondent until November, 1953. In that month respondent on being challenged with reference to certain information received by petitioner admitted to her that he had again committed adultery. The petitioner thereupon withdrew finally from cohabitation, rejecting respondent’s request that he be given ‘another opportunity.’ “On November 23, 1953, following upon the confession of the second act of adultery, and respondent executed a separation agreement. They parted immediately afterwards. The question is whether petitioner by entering into this agreement again condoned the first act of adultery. “It is clear that at the date of the agreement and for many months thereafter petitioner was indifferent to the adultery and to the matter of obtaining a divorce provided only that she was relieved from the duty of cohabitation and had possession of her children. But I think it would be wrong to conclude that she had any intention at that stage of treating either the first or the second act of adultery as forgiven. “Condonation is a bilateral transaction and unless the mere execution of the agreement amounted to condonation there is no evidence that the husband has in any way responded to any supposed forgiveness extended to him by petitioner. He has paid nothing of the agreed maintenance for the children. Nor has he done anything else that can be regarded as an affirmation of the marriage or a performance of his duties to wife or children. “A decree absolute is granted and an order is made granting petitioner the custody of the two children,” said his Honour.