RESTITUTION SUIT

Dominion, Volume 30, Issue 255, 24 July 1937, Page 8 (Supplement)

RESTITUTION SUIT

Husband and Wife BOTH PARTIES SUCCEED In the Divorce Court in Sydney recently Mr. Justice Roper granted the petitions of a husband and wife who eacii asked for an order for restitution of conjugal rights to be directed to the other, states the “Sydney Morning Herald.” The parties were Merlin Herbert Hungerford and Edith Victtrine Hungerford (formerly Pascoe). Both denied remaining away from the other without justification. In giving his decision, Mr. Justice Roper said that he had not been able to find any previous reported case of cross-petition for restitution of conjugal rights. On the facts in this case the real matters in dispute were the cross issues of insincerity. Each of the parties asserted his or her sincerity and denied the sincerity of the other. At the time of the separation the husband was earning his living as a piano-tuner and his wife was making a living as a music-teacher. Each Party Sincere. His Honour said he found that each was sincere in the desire to return to and live with each other. That, the parties had not returned to each other was due, first, to the wife’s desire that they should live at Epping, while the

f husband was insistent on making their I home at. Kurrajong. I In this, judged by considerations of practical common sense, the wife was right, but as a matter of law the husband was entitled, within reason, to i locate the matrimonial home. He believed the wife when she said, in effect, that she would go there. Secondly, each of the parties was anxious to score a victory over the other in this litigation, I because of a feeling of pride and stubj bornness and a wish to be justified by The result. i Reply to Counsel’s Views. His Honour said he did not think tha, tliis spirit was inconsistent with their sincerity in seeking a restitution of matrimonial relationship. He found | that each of the parties had remained away from the other without justification. “It was strongly urged on me by counsel for each party,” said His Honour, “that as a matter of law, a decree could not be made on both petitions. If, however, the husband’s petition had not been filed, and the evidence given in this case had been given in the wife’s suit, I would have had no hesitation in taking the view that I have taken of the facts, in granting her a decree. Similarly, if the wife’s petition had not been filed, I would, on the same evidence, equally, without hesitation, have granted a decree in the husband’s suit.” His Honour then pronounced a decree for restitution in each suit. He said that if difficulty was encountered in serving either decree on or before j August 10, the parties were at liberty to apply, io him for gireciipns.