DIVORCE LAW

New Zealand Herald, Volume LXXIII, Issue 22517, 7 September 1936, Page 12

DIVORCE LAW

MENTAL PATIENT CASE

HUSBAND'S PETITION FAILS WIFE HELD VOLUNTARILY PERIOD NOT COUNTED A divorce decree has been refused by Mr. Justice Cailan to a husband who sought one last Thursday on the ground that his wife had been confined in a mental hospital ior mono than seven years. Judgment was issued by His Honor in the Supreme Court on Saturday.

It wns shown in cvidenco at the hearing that the wife could .at any time within a week of her admission to the Auckland Mental Hospital as a voluntarv boarder on March 19, 1029, have been committed as a patient, but as a matter of fact she was not so committed until July last. His Honor has held that this voluntary period does not count as part of the seven years mentioned in section lOf of the Divorce and Matrimonial Causes Act, under which the suit was brought. The petition was supported by Mr. A. A. Coates, and Mr. V. R. Meredith, representing the Solicitor-General, as guardian ad litem of the wife, appeared to oppose it. What Must be Proved The petition was based on the ground that the woman was a person of unsound mind and had been confined as such in the Mental Hospital at Avondale since March 19, 1929. Evidence was given by Dr. H. M. Buchanan, the medical superintendent, and His Honor said ho saw no reason to doubt the accuracy of his opinions, that at any time after the woman's admission her condition would have warranted committal, and there was not any possibility of her recovery. The question remained, His Honor said, whether the petitioner had proved all he must prove under the section.

The petitioner had to establish, not merely that the respondent was a person of unsound mind and was unlikely to recover, but also that she had been confined "as such" in an institution for the required period. Some meaning and effect must be given to the words "as such." Ho would assume in favour of the petitioner that all that was meant was that the respondent should have been confined "as a person of unsound mind," and he interpreted these words as Mr. Justice Salmond interpreted them on Johnson v. Johnson.

"It results," said His Honor, "that the section means at least this —'confined as a person afflicted with unsoundness of mind to a degree that warrants the making of a committal order.' But the respondent has not been confined upon that basis. Throughout all the relevant period she has been confined only as a voluntary boarder." Voluntary Boarder's Position It was plain, His Honor continued, that a degree of unsoundness of mind less than was necessary for committal was commonly accepted as justifying the reception and detention of a person as a voluntary boarder. Indeed, it was not considered proper to retain as a voluntary boarder a person whose condition clearly warranted committal. Dr. Buchanan testified that many voluntary boarders were relieved bv their care and treatment and then left the institution. The majority got better and did not become the subject of a reception order. In this case what the petitioner was really seeking to do was to have the respondent treated as having been actually confined as a person of unsound mind merely because it was established by Dr. Buchanan's reliable-opinion evidence that she could lawfully have been confined "as such." The answer was that in fact she was not. The petitioner had not, in His Honor's view, established his right to a decree, and the petition was accordingly dismissed.