Solicitor Speaks On New Act

Press, Volume CIX, Issue 31923, 26 February 1969, Page 2

Solicitor Speaks On New Act

The shortened waiting time in divorce cases now in force under the Matrimonial Proceedings Amendment Act, was an indication of sound legislation, said a Christchurch solicitor, Mr B. A. Barrer, last evening.

It would make little difference to those who were going to get a divorce, and could reduce the number of de facto relationships, Mr Barrer said in an address to the Christchurch East Combined Church Women’s Groups. For the children involved it was sound legislation. Parents could start off on a fresh marriage on a legal basis earlier. The bad effect on a child of the parents being separated would be reduced by the shorter period. “Some say while there’s life there’s hope and that the parties should wait longer in hope of reconciliation. But it’s my experience that when people get through the court, have had a separation order, then the marriage tie Is broken in such a way that it is unlikely to be restored,” said Mr Barrer. The extention of the experimental reconciliation period for legally separated parties from two to three months was also good legislation. Sweeping Changes Changes in the Domestic Proceedings Act, which is administered In the Lower Court, were sweeping and the effects could be extraordinary. Under the old act the husband and wife had mutual obligations regarding maintanence and support and could get an order for separation, guardianship, and maintanence on specific grounds. People knew what the act meant, and their rights. The act had certain failings, some of which had now been

corrected. Others may well have been made worse, he said.

Formerly a wife could apply to a magistrate for separation, guardianship, and maintanence on these grounds:— That the husband had failed, or intended to fail to pay maintenance; was guilty of persistent cruelty to her or the children; was an habitual inebriate; six months before the making of the complaint the husband had been convicted of assault and sentenced to imprisonment or a fine exceeding $lO. Except in cases where parties mutually agreed to separate these were the grounds on which parties could be separated in the Magistrate's Court and this formed the basis for the divorce which came under the jurisdiction of the Supreme Court. New Clause Under the new act this had been done away with and was replaced by a new clause. “The fault principle has gone. Part 111, section 19, states any married person may apply for a separation order to be granted on the grounds that there is a state of serious disharmony between the parties to the marriage of such a nature that it is unreasonable to require the applicant to continue or

. . . to resume cohabitation with the defendant, and that the parties are unlikely to be reconciled! "It remains to be seen how a magistrate and judge will interprete this when it comes before them. “I feel, and so do a great many members of the Law Society, that it would have been better to stick to the old principles and bring in the new clause as well,” said Mr Barrer.

Some of the old principles —the assault clause —had been retained but the fine was now $5O. Mr Barrer could not remember a case in his experience where a magistrate had fined a husband $5O for assault because this would just take food from the wife and children. “The argument for doing away with fault provisions is that it is extremely difficult for a magistrate to assign fault in the time available,” said Mr Barrer. “But there are many instances where fault is obvious and these cases—which can involve the health of the parties—need quicker and more drastic action than allowed for under present procedures,” he said. A separation order could

also be made on the grounds that since the mariage any act or the behaviour of the defendant affecting the applicant has been such that . . . the applicant cannot reasonably be required to continue ... or resume cohabitation with the defendant” Loophole The law fell short in eases where the husband, separated from his wife, decided to go to Australia. “If he is shrewd enough to pick the states where there is not effective reciprocity for enforcement of maintanence orders it can be very difficult to get Australian earnings back to New Zealand,” he said. Mr Barrer was also critical of the part of the act which deals with the duty of all parties to attempt conciliation. Even when proceedings were under way any party could ask for conciliation to be attempted. This gave those who wished to use it unscrupulously the power to delay proceedings for months or even years.

“This uncertain state could give victory to those with the stronger constitution," he said.

The clause by which the court could not refuse to make a maintenance order in favour of a wife on the ground of her wrongful conduct if she ... was unable to provide the necessities of life for herself could take some of the burden off the Social Security Department. The provision of blood tests in paternity orders was now compulsory, but these provided a negative case because they proved innocence but not guilt

“Previously when a paternity order was sought and you hadn’t got enough proof from the girl you could crossexamine the defendent, but now that proceeding has been dropped, although the court may call anyone it wishes,” he said.