VALIDITY OF ACT

Evening Post, Volume CXII, Issue 7, 8 July 1931, Page 15

VALIDITY OF ACT

DOMICILE IN DIVORCE

POWERS OF PARLIAMENT

IMPORTANT CASE

•The first and second divisions of tee Court of Appeal were engaged yesterday in hearing legal argument in the divorce suit, Florence Kate Worth v. Charles Stanhope Worth, which waa removed by Mr. Justice Blair into the .Court of Appeal to test the validity of the Divorce and Matrimonial Causes Amendment Act, 1930. Forming the basis of the argument is the important question as to whether it was valid for the New Zealand Parliament to; depart from the rules of English common law nnd international law that the basis for divorce jurisdiction in English countries was that a decreo in divorce could only be made in the country, where the parties had a bona fide domicile—the domicile of the husband.: There-were on tho Bench tho • Chief Justice' (Sir Michael'Myers), Mr. Justice1 Herdman, Mr. Justice Reed, Mr.Justice Adams, Mr. Justice MacGregor, Mr. Jnstico Blair, and Mr. Justice Kennedy. " . The Solicitor-General (Mr. A. Fair, K.C.), said that the question arising in the suit directly concerned and affected the powers and rights of the Crown in respect of the Government of New Zealand, and ho desired to.intervene in the suit and be heard on behalf of the Crown. Mr. Fair appeared with Mr. H. D. C. Adams. . " Mr. W. E. Leicester, with Mr. T. P. McCarthy, represented the petitioner, ana Mr. S. A. Wiren the respondent, but as amicus ciiriae and to submit an argument that the Statute is ultra vires. Mr. Wiren said he was originally instructed on behalf of the respondent, who had not opposed, and still did not oppose, Mrs. Worth's being granted a decree. INTERNATIONAL PROBLEMS. Opening his argument, Mr. Leicester said that the case raised some problems in. international and constitutional law that did not appear to have been fully considered previously in airy of the Courts of the British Empire. The petition was made under section 3 of the Divorce and Matrimonial Causes Amendment Act, 1930, which, in effect, gave a woman who had resided in New Zealand for three years, and intended to remain here permanently, the right to petition for divorce wherever her husband might be. The grounds of the petition in the suit were two. The first was that there was an oral agreement for separation between the parties, and the second, if the oral agreement were not established, that there was on the part of the respondent constructive desertion. Mr. Leicester saia that the petitionfer was born in England, and was first married in England to one, Stanley Gibbons. ; Mr. Justice Eeed: "The stamp man?" Mr. Leicester: "A nephew of the. fetamp man, sir.'-' Proceeding, Mr. Leicester said, that the petitioner went to South Africa with her husband, who was later, killed in. the Boer War. She .was afterwards married in South Africa to in January, 1902, bui.the married life of the parties was a miserable one, and towards the end of 1911 they separated, Mrs, Worth coming to New Zealand. Mr. Justice Blair observed that he had intimated to Mr. Leicester when the suit was before the Supreme Court that he was satisfied the grounds were established, and that ordinarily, but for the question of jurisdiction, he would have made a decree. TOUR POINTS RAISED. Mr. Leicester submitted that the following four points were raised in the .case: — .. ..'■' (1) The question of domicile. (2) The effect of an unconditional appearance on jurisdiction. (3) The territorial validity of the 1930 Act. ' ' ' (4) The extr,a territorial aspect of the legislation. ,•. ~ » T As to the question of domicile, Mr. Leicester said he desired to deal with this matter under three heads: firstly, the English ana international rules of law as to domicile; secondly the exceptions to these rules created by the Legislature and case law; thirdly, |the modern tendencies in regard to domicilo. Before, however, dealing with-the first of these three matters, counsel referred to the position of the respondent.; The respondent's domicile of origin, he saia, was England. * The evidence given at the hearing "in the Supreme Court did not make it clear whether the respondent acquired a domicile of choice in South Africa, but it was submitted it was immaterial in view of the rest of the evidence, because the presumption of law was against the acquisition of a domicile of choice; and' the abandonment of the domicile, of. origin. * - Mr. Justice Heed: "It wouldn't mat ter, anyhow, would it?" Mr. Leicester: "It. might matter your Honour in that it might involve the Court in a consideration of the possible differences in, South African law ana New Zealand law. However, I was going on to show that it is quite c^ear in this case even if the respondent acquired a domicile of choice'in South Africa, he became revested with

his domicile of origin immediately he went back to England." Tho Court questioned whether it was necessary to deal with matters other than the question of the validity of the Now Zealand Statute, and if valid, its effect. " ' , :- ■ . EFFECT OF STATUTE. "After all," said the Chief Justice, "isn't the whole point this? Has the Legislature of New Zealand jurisdiction to direct the Court to grant a decree of divorce to a woman who has been in New Zealand for three years though tho husband has not, when the decree of divorce may be no more than waste paper in any place o'utside_ New Zealand; the result being that if the husband marries again anywhere outside New Zealand he has committed bigamy, tho same observation applying to the wife if she should marry in New Zealand and go outside 1 Sho might bo prosecuted." Mr. Leicester: "That is virtually the point, Sir." The ■ Chief Justico: "That is ■ the point." The Chief Justice said that if the Act was valid in New Zealand and binding upon a woman and the Court had to act upon it, then surely it was desirable that women who took advantage of the provision should know what they were doing, and know what their liabilities were—and criminal liabilities —if they married elsewhere than in New Zealand or married in New Zealand and went elsewhere. His Honour said ho thought the question should be dealt with on an Empire basis, and not by tho legislation of one Dominion. ' IN COMPETITION WITH RENO. Mr. Justice Reed: "You see, it is bringing us into competition with San Reno in Nevada and other places." (Laughter.) Mr. Leicester said he had thought it desirable to place all the relevant authorities before the Court. • Mr. Justice' MacGregor, glancing at rows of volumes on the Bar tables: "You have done so, Mr. Leicester. We can see them." (Laughter.) Mr. Leicester contended that the Act was'valid, and in support of his submissions quoted a number of authorities. Mr. Wiren quoted a number of authorities with a view to showing that the Act was ultra vires. He had not concluded his argument when the Court adjourned until this morning;