DIVORCE REFUSED.

New Zealand Herald, Volume LXVI, Issue 20384, 12 October 1929, Page 14

DIVORCE REFUSED.

'AN UNUSUAL PETITION.

"COLLUSIVE AGREEMENT."

SUGGESTION OF A BARGAIN

TRANSFER OF WIFE AND FARM

"In my opinion, I ought to hold, and I 'do hold, that this suit was instituted pursuant to a collusive agreement between nil the parties to it; and that it lias been prosecuted pursuant to a collusive agreement between two of the parties to it. Either finding is sufficient to require tho Court to dismiss the petition." In these words Mr. Justice Smith, at the close of a lengthy judgment delivered in the Supreme Court yesterday, dismissed tho petition of Jehu Percival Smith, of Kftijvaka (Mr. Inder and Mr. East), for dissolution of his marriage with Beatrice Smith. Joseph Archibald McClean, farmer, of Kaiwaka (Mr. Meredith), was named as co-respondent, and opposed tho petition. It was stated during the hearing of the case that the husband had bargained for tho transfer or his wife, children, farm, house and stock to tho co-re-spondent in return for a money payment.

His Honor said !he pet it ion was an unusual one. Adultery by respondent and co-respondent during 192? and 1928 was admitted by them both The respondentfiled no answer, but pave evidence for the petitioner. The co-respondent did not at first, propose to defend the suit, but later he obtained leave to defend. Ho alleged connivance, collusion and condonation on the part of the petitioner. A Conditional Agreement. In a signed legal agreement Mrs. Smith and McClean admitted that their acts had not been connived at. condoned or forgiven by Smith, fn His Honor's opinion this,, clause did not really state the position that existed between the parties. "What existed was a conditional agreement that if petitioner would set his wife the co-respondent would take her over with the farm and the children, and there would be no defence by respondent or co-respondent, and , petitioner would, in the circumstances, claim no damages from the co-respondent, but the latter would pay the costs." continued His Honor. "Connivance and condonation are expressed to be negatived by the agieement, but it does not purport, to deal with collusion. The parties cannot, of course, negative conclusively for the Couit any of these defences." The petitioner having proved adultery, His Honor considered the defences raised hy the co-respondent. In his opinion neither connivance nor condonation had been proved upon the evidence before the Court, although whether they could have been proved if the wife had defended the'petition and told all she knew was another matter. Agreement Described. With regard to collusion, where relief was sought on the ground of adultery, jf the Court found that tho petition was presented or prosecuted in collusion with either of the respondents, the Court must dismiss the petition. "In the present caso, I find that the petition was presented pursuant to an agreement, between the petitioner, respondent and co-respondent," said His Honor. "That agreement was not tho formal agreement in writing prepared by Mr. Clark-Walker, but the full agreement of the parties, made, for the most part, by themselves, before the solicitor was consulted. In essence, their agreemont provided that if the petitioner would divorce his wife without claiming damages against the co-respondent, then the latter would marry the respondent, buy petitioner's farm and provide a home there for himself, respondent, and tho children. Neither respondent nor co-respondent would oppose the divorce petition, but co-respon-dent would pay the costs of the undefended suit. "Keeping the Veil Drawn." "However estimable this arrangement might be or appear to be front the point, cf view of the immediate parties, there can be no question that the institution of the suit was procured by agreement and that one of its terms was abstention from defence. When the petition was filed it was obligatory on all of them 'to keep the veil drawn,' except as far as was necessary merely to enable the petitioner to obtain a decree in an undefended suit. The completeness of the arrangement is shown by tho fact that anly one firm of solicitors was engaged, and that they wero in reality acting for all the parties until the end of May, 1929. "I think I ought to infer that petitioner and respondent agreed to go on with tho petition oh the understanding that the respondent would not defend the case, but with the object of 'showing up' the corespondent. It then became incumbont upon respondent, pursuant to such arrangement, and under the influence of such a motive, to say nothing to the detriment of the petitioner, but to help him to- get his decree against herself and the co-respondent. It is clear that under such circumstances the Court cannot be satisfied that it has before it all the material facts. Petitioner did not abandon the suit and file a fresh petition free from the c6llusivo taint. The force of the collusion was. not, spent before the institution of the suit." The petition was dismissed.