LUNACY AND DIVORCE

Evening Post, Volume CXXVIII, Issue 145, 16 December 1939, Page 7

LUNACY AND DIVORCE

VOLUNTARY BOARDER

NOT "CONFINED" UNDER ACT

j A petition for divorce on the grounds I ! that the respondent was a person of i ! unsound mind was dismissed in re- ' ! served judgments of the Full Court j yesterday. It was held that, although j the person had been a patient at the ! Porirua Mental Hospital for more ; than ten years, he had not been "con-! I fined" as a person of unsound mind j j until a reception order was made in April of this year. Prior to that he had been a voluntary boarder. The Court consisted of the Chief Justice (Sir Michael Myers), Mr. Justice Blair, and- Mr. Justice Johnston. The decree nisi was sought by the wife under section 10 of the Divorce ' I and Matrimonial Causes - Act, 1928. i One of the grounds upon which a divorce may be obtained is: "That the j respondent is a person of unsound I mind and is unlikely to recover, and j I lias been continuously a person of j unsound mind for the period of seven j years immediately preceding the filing i of the petition, and during the final j three years of the said period of seven j years has been confined as such in New Zealand' in an institution within the meaning of the Mental Defectives Act, 1911, or in a like institution in i any other country of the British Do- ! minions." The Chief Justice said he agreed with a decision of Mr. Justice Callan that a voluntary boarder was not confined as a person of unsound mind. The respondent had been in the Mental Hospital continuously for a period of over seven years immediately preceding the filing of the petition, and the evidence showed that he was during the whole of that period a' person of unsound mind and that he was unlikely to recover. The question was whether, seeing that for the greater part of the final three years he was a voluntary boarder, he satisfies the last of the four tests prescribed. The requirement was not only that the respondent must have been of unsound mind for seven years, but he must also have been "confined as such" in an institution within the meaning of the i Mental Defectives Act for the last.three • of those years. "It may be. as in this case, that during the whole of his period in the Mental Hospital he has in fact been a person of unsound mind, but still he has not in my opinion either in fact or in law been confined 'as such,'" said his Honour. "The petitioner seeks a decree affecting the status of marriage, and the Court must see that every test prescribed by the Act is satisfied before it makes such a decree. If the respondent was not for the requisite period of three years confined in an institution as a person of unsound mind, then, of course, one crucial test has not been satisfied."

The other two members of the Court concurred in dismissing the appeal.

Mr. S. A. Wiren appeared for the petitioner, and Mr. J. Prendeville for the Crown.