NEW DIVORCE ACT

Otago Daily Times, Issue 18323, 13 August 1921, Page 6

NEW DIVORCE ACT

MR JUSTICE HERDMAN’S COMMENT.

AN APPLICATION REFUSED. (Peb United Pbess Association.) CHRISTCHURCH, August 12. Mr Justice Hcrdman gave two judgments in the Supremo Court in the Divorce and Matrimonial Causes Act of last year, which makes divorce much easier than was before. In each case heard by his Honor a separation and maintenance order had boon made by a magistrate against the husband, and in each case the husband had petitioned for divorce on the ground of separation for at least three years under the order. His Honor dismissed both petitions. One of the petitions was by Arthur Reginald Suter Holloway, who is in orders as a clergyman of the Anglican Church, but is’ not actively engaged in church work, being an agricultural instructor under tho Canterbury Education Board at Timaru. In this case Mr Justice Herdman said: T have come to the conclusion that I should exercise my discretion against petitioner in the present proceedings, lie bases bis claim to have his marriage dissolved upon a separation order made against him by a magistrate at -the instance of his wife on April 10, 1915. The grounds upon which the separation order was made were that he had been guilty of persistent cruelty to his wife and children, and in particular that he had assaulted her and threatened to cut her throat, and had habitually insulting and vile language to her, and kicked and injured his daughter (who was 10 years of age), and failed to provide his wife with adequate maintenance. Petitioner now says these allegations were untrue, and that ho allowed the order to pass without opposi tion. Whatever petitioner did, or did not, in fact, do at the time the magistrate made the order does not seem to me to matter now. The magistrate heard the complaint, and must have acted upon some proof when he made the order. He must havoconsidered any consent to an order filed by petitioner, and he must hkvo decided that some, if not all, of the allegations made by the wife had been proved or admitted. If petitioner filed a consent, and it appears he did, then his consent, if it had any legal effect at all, amounted to an_ admission of the charges made against him. Without any hesitation I decide that in such a case relief should not be granted, neither upon the ground of public interest nor upon the ground that the dissolution of the marriage may be of advantage to either petitioner or respondent, or both, should tho court interfere. Respondent does not want tho marriage dissolved, and petitioner is certainly not entitled to receive any favour at the hands of the court. If I grant a decree m this case, then it seems to me that I lay down the principle that* a husband, having grown ’ired of his wife and wishing to have his marriage dissolved, may ill-treat her until in despair she is forced to leave him and apply to a magistrate for a separation order, thus enabling the husband, if the order made against him remains m full force for three years, _to petition successfully to have his marriage dissolved. It is no doubt true that the marriage between the parties hae in fact come to, end, but it the termination 'of matrimonial relations has been brought about not by the party who resists tho proceedings, but by the deliberate and unjustifiable misconduct of tne party who seeks the court’s favour, the court should, in my opinion, declare it will refuse the relief sought, for the reason that petitioner’s misconduct has disentitled him to any consideration.”