DIVORCE REFUSED

Evening Post, Volume CII, Issue 38, 13 August 1921, Page 11

DIVORCE REFUSED

AN INTERESTING DECISION

(•* MliaHiPH.—PKijl ASSOCIATION.)

CHBISTCHURCH, 12th Aucust,

Mr, Justice Herdman, in two judements delivered to-day in the Supreme Court m divorce, dealt with clause 4 of the Divorce and Matrimonial Causes Act of last year, which makes divorce much easier than it was before. In each case heard by his Honour a separation and maintenance order had been made by a Magistrate against the husband, and in each case the husband had petitioned for divorce on the ground of separation for at least three years under the order. His Honour dismissed both petitions. One of the petitions was by Arthur Reginald Suter Hollo way,, who is in orders as a clergyman of the Anglican Church, but is not, actively engaged in Church work, being, an agricultural instructor the Canterbury Education 'Board at Timaru. In this case, Mr. Justice Herdman said : „ ■«,

"I have come to the conclusion that I should exercise my discretion against the petitioner in the present proceedings. He bases his claim to haye^his marriage dissolved upon a separation order made against him by a Magistrate at the instance of his wife on 10th April, 1915, The grounds upon which the separation order was made were that he had been guilty of persistent cruelty to his wife and children, and, in particular,, that he had'assaulted, her and threatened to cut her throat, and had habitually used insulting and vile language to her, and had kicked and injured his daughter, who was, ten years of age, and had failed to provide his. wife with adequate maintenance. >% The petitioner now says that these/allegations were untrue and that he allowed the order to pass without opposition. <, ■ ' -

"Whatever the petitioner did or did not in fact do at the time the Magistrate made the order does not seem to me to Vnatter 'now. The Magistrate heard the complaint, and must' have acted upon some proof when he made the order. . He must have considered any consent to an order filed by petitioner, and he must have decided that some if not all of the allegations made by the wife had been proved or 'admitted. If petitioner filed a consent—and it appears that he did—then his consent," if it had any legal effect at all, amounted to an 1 admission of the charges made against him.

"Without any hesitation I decide that in such a case relief should not be granted. Neither upon the ground of public interest nor upon the ground that a dissolution of the marriage may be of advantage to either petitioner or respondent, or both, should the Court interfere. The respondent does not want the marriage dissolved, and the petitioner is certainly riot entitled to receive any favour at the, hands of'the Court. If I grant a decree in this case, then it seems to me that I lay down the principle that a husband, having grown tired of his wife and wishing to have, his marriage dissolved, may ill-treat her until in despair, she is forced to leave him and apply to a'Magistrate for a separation order, thus enabling the husband, if the order made against' him remains in full force j for three years, to petition successfully to have his marriage dissolved.: It is no doubt true that the marriage between the parties has in fact come to an end, but if the termination of matrimonial relations has been brought about, not by the party who resists the proceedings, 'but by the deliberate and unjustifiable misconduct of: the party who seeks the Court's faypur, the Court should, in my opinion, declare that it will • refuse the relief sought, for the reason that , the petitioner's ...misconduct has disentitled him to any consideration." V