IMPORTANT POINT

Dominion, Volume 29, Issue 225, 19 June 1936, Page 15

IMPORTANT POINT

Order For Permanent

Maintenance

HOW LONG AFTER DIVORCE?

A question of general importance—namely, bow long after the making of a decree absolute has a court power to make an order for permanent maintenance was submitted to Ihe Court of Appeal tit Wellington yesterday. Appellant was Alexander Pooley, railway employee, ami respondent Violetta Irene Pooley, both of Auckland. The court comprised the acting Chief Justice (Mr. Justice Reed), and their Honours Mr. Justice Smith, Mr. Justice Johnston and Mr. Justice Northcroft. . . Mrs. Pooley obtained a decree nisi in divorce from her husband on the ground of adultery in May. 1929. She was given custody of the child of the marriage. The decree was made absolute in September, 1931. Mrs. Pooley set out in applying for permanent maintenance, that about the time of th e divorce her husband agreed verbally to pay £2 a week toward the maintenance of herself and child and paid this until 1934. Then without her consent or approval, she alleged, be reduced this payment to £l/10/- a week, paying this until January, 1936. when he reduced the sum to' £1 without her consent. In making such reduction he intimated the £1 weekly was for the child’s maintenance and would cease on his attaining the age of 16. She had not married again nor, she was informed, had her husband. Mrs. Pooley set out that she did not applv for a decree for permanent maintenance within a short period after the issue of a decree absolute because her husband had made regular maintenance payments. Pooley denied undertaking by verbal agreement to pay his wife £2 weekly. Ho paid it simply as a matter of honour and there was never any discussion with his wife about it. He reduced this to 30/- when his wages were cut. The reduction to £1 was made because his wife’s income had increased. His wages were £1 less than his wife alleged. In addition his wife had a business and employed an assistant. Mr. Justice Fair held that looking at the whole of the circumstances, [lie fact that Mrs. Pooley was receiving periodical payments from her husband regularly for over four years, that Pooley bad not been prejudiced in any way by the delay and that Mrs. Pooley took steps to apply for permanent maintenance four days after Pooley reduced his payment belov, £l/10/-, he thought the application might be considered as having been made within a reasonable time after the pronouncing of the decree. Each ease must be considered on its own facts and in Mrs. Pooler's case, he thought the facts excused' the delay. He did not consider a verbal agreement for .2 weekly established, although be bad no doubt Pooley intimated bis Intention of paying maintenance. His Honour fixed permanent maintenance at £l/10/weekly from January, 1936.

I; was against this order that Pooley, who obtained leave to appeal in forma pauperis appealed. Mr. 11. J. V. James, for appellant Pooley, submitted Mr. Justice , Fair drew certain wrong inferences of act and acted erroneously in law in awarding permanent maintenance to Irs. Pooley, four years after the decree absolute was pronounced. For respondent it was submitted by Mr. R. A. Sincer th. t. as had been held in English cases, lapse of time alone was not a. deciding factor, but that all circumstances had to be considered. Judgment was reserved.