DIVORCE LAW POINT.

New Zealand Herald, Volume LXIX, Issue 21129, 11 March 1932, Page 12

DIVORCE LAW POINT.

SEQUEL TO SEPARATION.

PETITION FOR RETURN MADE. DEED NOT PLEADED BY WIFE. [BY TELEGRAPH. rRESS ASSOCIATION.] \VELLINOTON, Thursday. A question of law arising out of divorce practice came before the Full Court today. On December 4. 1930, Alfred Shepherd Dawson Rose, of Wellington, entered into a deed of separation with his wife which, contained a covenant that he would not endeavour to compel her to co-habit •with him or seek to enforce any restitution of conjugal rights. On June 24, 1931, Rose filed in the Supreme Court a petition for restitution of conjugal rights, a copy cf which was served on Mrs. Rose, who, instead of filing an answer and pleading therein (he deed of separation as a bar to the making of an order, ignored the proceedings and failed to take legal advice. When the matter came before the Chief Justice, Sir Michael Myers, for hearing, he raised and reserved for (he opinion of the Full Court the question whether the deed of separation, existing as it did, but not having been pleaded by the wife, was a bar to the making of an order for restitution of conjugal rights. On the Bench to-day were the Chief Justice, Mr. Justice Herdman, Mr. Justice MacGregor, Mr. Jus(ice Blair and Mr. Jusiice Kennedy. "When the cast, was called counsel for Mrs. Rose appeared and asked leave to argue the point involved as amicus curiae, explaining to the Court that his client, while failing to file the required answer, nevertheless desired to oppose an order being made. The request was granted. Counsel for petitioner submitted that as -the deed was not pleaded it should bo disregarded by the Court, for that was the law in England and should apply here. If it had been pleaded it would have been open to the Court to inquire into the circumstances surrounding its making, and then possibly ignore it. As, however, it was not pleaded, the Court was denied the opportunity of investigating those circumstances.

Counsel for the respondent, on the other hand, contended that the English cases were unsatisfactory. They did not proceed on any settled rule of law, but had been decided 011 a considerable number of different grounds. The weight of authority in Australia and New Zealand was to recognise and give effect to a deed where it had not been pleaded, this course being based on reasons of public policy. The Court reserved its decision.