DIVORCED WIFE’S PETITION

Evening Star, Issue 22203, 4 December 1935, Page 7

DIVORCED WIFE’S PETITION

PERMANENT MAINTENANCE SOUGHT SUPREME COURT DECISION Judgment was given by His Honour Mr Justice Kennedy in the Supreme Court this morning in the case in which application was made to the court yesterday by Jane Bell Donald lor permanent maintenance against David Donald. The parties were divorced in 1934, a decree absolute having been irade since. . ' In the course of his judgment His Honour said:—The ground of divorce was that the husband and wife were parties to an agreement for separation, and that such separation had remained in full force for more than three years. Both parties desired the divorce, and the husband was not concerned to plead, as ho might have done if there had been foundation for it, that the separation was due. to bis wife s conduct. Under the separation agreement the husband was bound, to pay his wife the sum of thirty shillings per week for her maintenance and support, there mre no children of the marriage. _ hhe court has a~ discretion in determining whether provision should be made for permanent maintenance, and it may order such payments as having regard to the fortune of the wife, if any, to the ability of the husband, and to the conduct of the'parties, it deems reason- * Proceedings being undefended, the conduct of the parties was not referred to in evidence, but on the hearing or this application • evidence was adduced which at first sight might appear xrrevelant, but which in view of the issue as to the conduct of. the parties was properly adduced. There is in many cases great ditticulty in ascertaining the true facts as to the conduct of husband and wife, and this difficulty specially appears here where the matters concerning which the parties gave evidence for the most part occurred six years ago. I am disposed'to think on the evidence that the husbahd’s conduct was not free from blame, and that his indulgence in liquor at times went far to alienate his wife’s affection and interest in the home, and this coincided more or less with the wife’s diminution of interest in her own home and the increase of outside attractions. I find that later there was complaint about an association which was not acceptable to the husband and that this resulted in mutual recriminations and estrangement, and in a proposed separation being readily accepted by the wife and being agreed to by the husband as more tolerable than her hostility in the home and as ending an unendurable impasse which in the end was more the fault of the wife. The wife was, subsequent to the agreement, entitled to five separate and apart from her husband and to follow her own life, and she ultimately accepted as a boarder the person whose association bad earlier been the subject of complaint. The wife, however, lived as such for 14 years. She is now able to do domestic work, but is not completely selfsupporting. There is the usual evidence of ill-health and being only fit for light work, but there is other evidence on which I rely which shows the maintenance of reasonably good health. I do ..not think that the matters I ■ have referred to are, having regard to the wife’s means, properly to be treated as conduct wholly depriving her of any right to maintenance. In fixing maintenance, however, regard must be had to the fact that she is not without earning capacity. It must also be remembered that the husband’s earning capacity will diminish, and that it is fair to take a three years’ average and not the present maximum. In all the circumstances, however, having regard more to the wife’s needs than to her deserts, the husband is ordered to pay for her maintenance and support a weekly sum of twenty-five shillings as from the date of the decree absolute. These payments will be for the joint lives of the husband and wife, or until the court shall earlier otherwise order. This order will no doubt require reconsideration if the parties concerned marry, or if the husband ceases to maintain his present earnings and retires upon superannuation. The husband will pay to the wife for costs the sum of £4 4s and disbursements. At the hearing of the case Mr I. B. Stevenson appeared for the petitioner and Mr D. A. Bell for the respondent.