DIVORCE ACT

Evening Post, Volume CXII, Issue 8, 9 July 1931, Page 14

DIVORCE ACT

QUESTION OF VALIDITY

INTERNATIONAL EFFECT

HEARING OF TEST CASE

Difficulties it bad been suggested might arise if a divorce was granted under tho Divorce and Matrimonial Causes Amendment Act, 1930, were claimed to bo almost wholly theoretical by tho Solicitor-General (Mr. A. Fair K.C.), on behalf of the Crown, in-the Court of Appeal yesterday, when logal argument was continued in the divorco caso of Florcn-.e Kate Worth against Charles Stanhope Worth. The case was removed from the Supreme Court to test the validity of tho Act, and legal argument on the importaut questions that arc involved was commenced on Tuesday before both divisions of the Court of Appeal.' There wero seven Judges ou the Beuch —the Chief Justice (Sir Michael Myers), Mr. Justice Herdman, Mr. Justice Beed, Mr. Justice Adams, Mr. Justice MacGregor, Mr. Justieo Blair, and Mr. Justice Kennedy. Argument was completed late yesterday afternoon, and judgment was reserved. Mr. W. E. Leicester, with Mr. T.. P. M'Carthy, appeared for the petitioner; Mr. S. A. Wiren for. the respondent; and Mr. A. Fair had with him Mr. H. D. C/ Adams.

Yesterday morniug Mr. Wiren concluded tho argument ho commenced on Tuesday afternoon. Air. Fair said his submission was that tho legislation was intra vires and valid, and that Mrs. Worth could -be granted a divorce. It was contended that tho difficulties which had been suggested might arise under the statute wero in 99 cases out of 100 theoretical difficulties, because a woman who obtained a divorce under the Act would remain in %New Zealand, and if she remarried she, her husband, and her children would remain in the country. Text books showed that that had proved to be tho experience in a majority of cases, although there had been cases, it was. true, in which difficulties had arisen. POSITION OUTSIDE DOMINION. . In answer to the Chief Justice, Mr. Fair admitted that a decree ,made under the Act against a person not domiciled in New Zealand might not have any effect or be valid outside the Dominion. The Chief Justice: "You say that for the purposes of settling rights iv New Zealand and status inftNew Zealand, the New Zealand ftParliament can ignore all principles of international law?"—"It can disregard tho "law of domicile;'l would rather put it that way." • "Which is a principles"—"l don't think it is a principle of international law, but rather a principle of English law adopted from the so-called international ' law." The law of domicile was not regarded at all in a large number of States in America, and was not regarded in several of tho Australian J3tates. REMEDIAL SECTION. Mr. Fair claimed that if the Court held ; that the 1930 Amendment Act was invalid it was beyond question that section 12 (1) and section 12 (2) of the 1928 Act must also fall. The result iv that event would be that persons who had been granted decrees under those, sections and had remarried must be deemed to be living in adultery and any children would be illegitimate. It wast submitted very cogent reasons, would be required before the Court would adopt such a construction. Section 3 of the 1930 Act, it was contended, was obviously remedial and intended to give redress to what the Legislature thought was a grievous disadvantage married , women suffered under. Eead in ordinary terms, the section had a plain, straightforward, and natural meaning, and effect, it was submitted, should be given to it. Even if the section were ambiguous in its terms, it was submitted that the Court would endeavour to give effect to the expressed will of the Legislature that an ill or grievance should be remedied. In the course of his reply Mr.Leicester submitted that section 3 of the 1930 Act created a statutory domicile, and that the rule of domicile in divorce was not of international application.

In- reply to Mr. Justice Reed, Mr. Leicester said that the petitioner in the c,ase Jiad been resident in New Zealand for ..twenty years. The matrimonial "offence" started iv South Africa iv 1911 and ran for three years in New Zealand. ■ -.- '