COURT OF APPEAL.

Dominion, Volume 2, Issue 338, 27 October 1908, Page 4

COURT OF APPEAL.

THE DIVORCE LAW. PETITION 7 ON GROUND OF DESERTION. COURT AWAITING PENDING ENGLISH DECISION. ■ An important point in tlio divorco law is involved in tlio caso between Gcorgina Genet (petitioner) and Alfred Genet (respondent), which was al'gued licfnro the Court of Appeal during the current sittings, when Mr. Donnelly, of Cliristchurch, appeared on behalf of the petitioner and Mr. Myers for the Attorney-General, who had intervened. The facts in this case were that petitioner applied to the Supremo Court at Cliristchurch for tho dissolution of her marriago with respondent on tho ground that lie had, without just cause, deserted her continually for liVd years and tijivrards, from Juno 1, 1003, to Juno 10, 1908. Respondent did not appear to opposo tho petition. In the courso of her ovidenco petitioner stated that on June 2, 1903, she obtained .-ii'i order' that she waii 110 longer hound to cohabit w'itli respondent, tho legal custody of a child under sixteen being committed to her, and respondent being required to pay 10si per week for lier use. The grounds on which tho order was applied for and granted wero tho persistent crlieltv of tlio respondent to tlio petitioner, and his wilful neglect to provide reasonable •maintcnanco for her and her infant child. No iricntion was niiido of desertion. Upon tlio suggestion of Mr. Justice Donniston the caso was removed into tho Court of Appeal for argument. .In his statement of the case Mr. Justice Donniston' said the provision that tho applicant was' no longer bound to cohabit with her husband was declared by tlio Act to liavo (wliilo in force) tho cll'cct in all respects of a decree of judicial separation on tho ground of cruelty, undor tho provisions of the Divorce and Matrimonial Causes Act, 1867. . During tho. proceedings in the Magistrate's Court tho respondent _ had stated that ho would never live with thopetitioner again; and lie did, in fact, never again livo with her, nor did ho in any way comply 'with the order. Tho petitioner had since' maintained herself and child. Tho desertion Was therefore fully proved, unless tlio position was ali'ected by tho existence of tlio protection order. Tbero were, his Honour showed, conflicting decisions both in Now Zealand and in England as to whether the existence of an order under tho Harried Persons Summary Separation Act, 1896, or tho corresponding act in England, was a ,bar to proceedings in divorce on the ground of desertion. As many other Cases were stated to be pending, bethought ,t very dosirablo that the question should bo submitted to the highest Court in tho Dominion.

When the caso was mentioned again yesterday, Mr. Jnstico Williams, who presided in tho absence of the Chief ■ Justico (Sir Robert Stout), observed: —"In this case the members of tho Court have been unablo to arrivo nt tin - agreement. It is impossible therefore that judgment should bo given to-day. Tho Court has reason to believe that exactly the same question i 3 now before tho Court of Appeal ill England in Harriman v. Harriman. ■ The statutes which regulate the matter here aro for all practical purposes' the same as tho English statutes. The Privy Council has laid it down that wliero tho question is one of the'construction of similar statutes tho duty of a colonial Court is to follow tho decision of the English Court of Appeal. That would bo more especially the caso in matrimonial causes, where the status of British subjects is affected by a decision. The present caso is one which dees not affect only the parties, but it is one in which tho decision will have , a far-reaching operation. In these circumstancps it seems to. us that it is tho duty of the Court to hold its hand until tho decision of tho English Court of Appeal in the caso before it is made known. This" courso was indeed suggested, at., the hearing by counsel for the petitioner. The decision -will, therefore, stand over until tho next sitting of this Court."