Reform of divorce laws urged at conference

Press, Volume CXII, Issue 33047, 14 October 1972, Page 6

Reform of divorce laws urged at conference

The one ground for divorce in New Zealand should be the “irretrievable break-down” of the marriage—the faults of either party to the marriage should only be relevant as evidence to prove that the marriage had broken down, said Mr J. F. Jeffries in a paper, “Matrimonial Fault—-Is It now Relevant?” he read to the New Zealand Law Society conference in the Town Hall yesterday.

"With separation as a ground for divorce, New Zealand adopted in effect the marital break-down doctrine more than 50 years ago, and should now stop straddling the theories and accept it in its entirety. Marital breakdown is not one ground among many; it is all embracing—it is the ground,’’ Mr Jeffries said.

He advocated the adoption in New Zealand of the English approach incorporated in the Divorce Reform Act of 1969, whereby the sole ground was irretrievable break-down of marriage, but to prove it the petitioner must satisfy the court on one or more of five evidential grounds. Mr Jefferies quoted from the act:— “1. Break-down of marriage to be sole ground for divorce. After the commencement of this act the sole ground on which a petition for divorce may be presented to the court by either party to a marriage shall be that the marriage has broken down irretrievably. “2. Proof of breakdown—(l) The court hearing a petition for divorce shall not hold the marriage to have broken down irretrievably unless the petitioner satisfied the court of one or more of the- following facts, that is to say—

[a) that the respondent has committed adultery and the petitioner finds it intolerable to live with the respondent;

(b) that the respondent has behaved in such a way that the petitioner cannot reasonably be expected to live with the respondent;

(c) that the respondent has deserted the petitioner for a continuous period of at least two years immediately preceding the presentation of the petition; (d) that the parties to the marriage have lived apart for a continuous period of at least two years immediately preceding the presentation of the petition and the respondent consents to a decree being granted; (e) that the parties to the marriage have lived apart for a continuous period of at least five years immediately preceding the presentation of the petition. Mr Jefferies said the act had no novelty appeal for New Zealand. It would, if adopted, simply move the great triumvirate of matrimonial offences of adultery, desertion and cruelty from

being the grounds to a lesser status as evidence of the one ground of irretrievable breakdown. But it would be a worthwhile reform because it would bring order to the present near chaotic state of New Zealand grounds at present; it would shift the attention of society, and therefore individuals, to the true matter for investigation—the actual state of the marriage and its future, if any. It would also greatly reduce the court’s concern with refinements and technicalities of such grounds as desertion and cruelty where it was an ingredient. “It is also noteworthy that there is an additional and important ingredient in the British act when adultery is the evidential ground. It is not enough to prove the respondent’s act, for the petitioner must establish that it is intolerable to live with the respondent. “At the very least, this must tend to diminish in importance the single act of adultery almost to extinc-

tion,” Mr Jefferies said. In speaking of the necessity for reform of the divorce law in New Zealand, Mr Jeffries said: “There may be one way to enter, but to vacate the state of marriage there are 24 doors in New Zealand. The slightest examination of these grounds for divorce quickly reveal the illogical, bewildering, essentially compassionate and sincere approach of our legislators over the century to the dilemma of the State in such a private and intimate relationship as marriage.”