WIFE'S CLAIM

New Zealand Herald, Volume LXXIV, Issue 22886, 15 November 1937, Page 8

WIFE'S CLAIM

(HUSBAND IN DOMINION ANOTHER MAN SUED QUESTION OF MAINTENANCE CONTRACT RULED LEGAL [teom ottr own correspondent] LONDON, Oct. 23 A woman's claim for maintenance from another man during her husband's absence in New Zealand was heard in the King's Bench Division. It was argued before Mr. Justice Lewis that a contract which contemplated the Reparation of a husband and wife was void, as being contrary to public policy. The question was a preliminary point raised by the defendant in an action brought ,by Mrs. Alice Davies, of Shrewsbury, against Allan Melrose Elmslie, of London. Mrs. Davies claimed £32 arrears of allowance under an agreement made between the parties in January, 1936. She also asked for ft declaration that she was entitled to receive from Elmslie a. weekly allowance of £4 until either her passage was paid to New Zealand to rejoin her husband, Hugo Harold Davies, or his passage was paid for him to rejoin Mrs. Davies in England. Statement of Claim The statement of claim alleged that, in the agreement, a weekly allowance ■was promised to Mrs. Davies in consideration of her persuading her husband'to go.to New Zealand and consenting to forgo the consortium of her husband. It was also alleged that Elmslie paid the allowance for a year, but had: refused to continue it. Mrs. Davies had always been ready to rejoin her husband. Mr. R. A. Willes, for Elmslie, contended that such an agreement was illegal. The preliminary point to be decided was whether, as the defendant contended, the agreement was unenforceable because it was against public policy. Mr. Justice Lewis decided in favour of the plaintiff, and ruled that the contract, was not void, as against public policy, or based on illegal consideration. "Someone Behind Scenes" When the point was being argued, Sir Reginald Coventry, K.C., for Mrs. Davies, said: "This contract was drawn up by.' Mr. Elmslie's own solicitors. We have every reason to believe that he is a man of honour, and the tactics adopted to defeat this lady's "hum are not his. -They are the tactics of someone behind the scenes, of whom we know nothing. The whole object was to provide maintenance for the wife and nothing else, the husband having gone abroad to find work." Mr. Justice Lewis said he would not assume for one moment that there was any suggestion of immorality. In his judgment, His Honor said that, as pleaded, it did not appear to him necessarily to contemplate complete separation of husband and wife. The wife at any time, by no longer agreeing to forego the consortium of her husband, could go to her husband, thereby losing the £4 a week. No Evidence o! Motives On the other hand, added the judgment, the defendant, by simply paying the plaintiff's passage money or the husband's fare to England, could get out of paving the £4 a week and could ensure, so far as was humanly possible, ( that the separation of husband and wife was terminated. His Honor said that he had no evidence whatever before him as to the motives which induced this agreement, and he knew nothing about the parties except what he gleaned from the statement of claim. There was no separation deed as between Mr. and Mrs. Davies. The wife was, and had always been, ready to join her husband, and what the husband's attitude was he did not know. He did not think that such an agreement would be void as against < public policy. Therefore, the preliminary point must be decided in favour of the plaintiff. Leave to appeal was granted.