The Law On Divorce And Separation

Press, Volume CVIII, Issue 31767, 26 August 1968, Page 12

The Law On Divorce And Separation

Although the law on divorce was revised and consolidated only five years ago the Minister of Justice, Mr Hanan, is seeking further amendments to the law during the present session of Parliament. The proposed amendments are part of a substantial effort to revise family law; three bills on domestic and matrimonial proceedings and on matrimonial property are accompanied by a bill revising the law on guardianship. Among the proposed changes in the Matrimonial Proceedings Act of 1963 the most notable is the reduction of the period after which separation orders and agreements, wilful desertion, or failure to comply with a decree for the restitution of conjugal rights qualify as grounds of divorce. The period in each instance is reduced from three years to two years. The bill also reduces from seven years to four years the period after which a husband and wife, living apart and unlikely to be reconciled, may seek a divorce.

An assessment of these changes should not overlook two important innovations in the 1963 Act For the first time judges were required to consider the possibility of reconciliation. The Act gave judges a discretion to adjourn proceedings to give the parties an opportunity to become reconciled. The Act also enabled separated partners to resume living together for up to two months without invalidating a period of separation or desertion. These changes in the law gave new emphasis to, and made practical provision for, efforts to revive and repair marriages that have broken down. They further acknowledged the notion, introduced to New Zealand law in 1920, that the legal ending of a marriage might be founded on the breakdown of a partnership and not merely on the commission of a matrimonial offence by one of the partners.

The law tests the failure of a marriage by requiring that a certain time shall elapse to show that there is no reasonable expectation of the partners becoming reconciled. Since it is the prime aim of the law to preserve the institution of marriage, Parliament must now decide whether the reductions in the periods may also reduce the effectiveness of the test If Parliament concludes that the acceptance of shorter periods will not facilitate the ending of marriages that might otherwise survive it need have no hesitation in making the amendment For it should now be generally conceded that prolonging a broken marriage is neither in the interests of the partners nor for the benefit of children of the marriage. Until the community accepts some other test of the failure of a marriage the lapse of time should be no longer than is needed to exhaust reasonable hope of a satisfactory reunion. Indeed, the law is already moving towards a different form of test The Domestic Proceedings Bill, consolidating and revising the Destitute Persons Act of 1910 and its amendments, defines new grounds for separation. It permits a magistrate who has been appointed to the domestic jurisdiction of the court to make a separation order if he is convinced that there is a state of serious disharmony between the parties and that they are not likely to be reconciled Provision for a magistrate to refer matrimonial cases to a conciliator—first introduced to New Zealand law in the 1939 Domestic Proceedings Act—is greatly enlarged by the consolidating bill. Behind this change in the law must lie the belief that the mere passing of time provides neither a remedy for marital discord nor the sole proof that the breakdown of a marriage has become an inescapable fact The change assumes that the facts underlying disharmony are capable of expert assessment and that marriage counselling has become a skill in which the courts may have confidence.