DIVORCE PRACTICE

Poverty Bay Herald, Volume LV, Issue 17232, 11 April 1930, Page 5

DIVORCE PRACTICE

AN IMPORTANT POINT DECREE ABSOLUTE MADE .Tudgmoii.l on an important and interesting point in divorce practice was delivered in the Supreme Court in (iisborne in-day. decision haying been reserve.! by His II H- Mr..lustice Blair, til the last sitting of the court here isconnection with a. motion by John Henry Huzza for a decree absolute against Louie Alary Ru/.za. The respondent also pel itioned for permanent aiaintenance secured by guarantor, and His Honor held that she was entitled to the additional security afforded by an order for maintenance under section 'i.'i, subsection '2, of the Divorce and Matrimonial Causes Ac*., which empowered the court to make an order direct ing the husband to pay during the joint lives of the parties .-. weekly or monthly sum for maintenance, provision being made for subsequent variation either by increasing or reducing the amount. His Honor made a decree absolute. His Honor said that on August 31, 1929. n decree nisi for divorce was made on Ihe husband's pi lit ion, the ground being mutual separation tor a period ol three veins and upwards. The wile appeared, but did not defend. The husband now moved for a decree absolute, and the wife had also petitioned for per niaui'iit maintenance. The agreement for separation was made between the parties in 1926, and provided that the husband should pay Ids wife CI 5s per week, the payments to cease if the wife married after the marriage between the parlies was dissolved. the contention between the parties was not as to the

amount of the perina item maintenance, it not being sun it os t nil that an order for tt urea tor amount than i! 1 5s should ho made. The wife was also in employment, and no uvidonoe was supplied to justify an increase in tho anuiunt. Iho vvt o asked that before' “ (iooroo absolulo wtc made tho husband ho ordered to find security for the payment of maintenance, claiming that lie could re-marry alter final decree, and with the consequent possible increased responsibilities on him. she might not he able to obtain payment of her maintenance. The hltsbnnd was a working carpenter with no other means. His ordinary wages averaged £4 per week, hut tit the Lime of the hearing he happened to have work temporarily as foreman oil a eontract, and his wages wore higher. It the issue of the decree absolute were made conditional on Ins finding security for due payment of maintenance, the result necessarily must he that he could not obtain a final decree because it was obvious that lie. a mere workman, could not' be expected to find anyone prepared to undertake the indefinite responsibility of guaranteeing toe payment ol maintenance to the wile t'or possibly the whole of her life. “The point involved is of some importance,” continued His Honor, “be cause if she he entitled to an order for maintenance secured by guarantee or in some other way, then divorce may revert to its former category as luxury tor the licit, ami one is reminded of Mr. Justice Maule s sarcastic reiercitee to this subject when he was sentencing a prisoner for bigamy." It. Mason v. \jasun (1.921 NX page 955) the Court of Appeal, referring to the divorce based on mutual separation or separa (ion order, said: “ I'lie policy underlying tile legislation is that it is not conducive In ib" public interest ihal men and women should remain humid together in pei inaiieiire by the bonds of a marriage. Ibe duties of which have long ceased h he observed by either parly, and Ibe purposes of whir!: have h rcmediall.v fail ini. Stieli a t olidil ion ol marriage in law which is no marriage in laet leads only to immorality and unhappiness, and Ihr court Inis now been entrusted with a discretionary jiiridietion to put an end to it" In the present ease there was no suggestion of blame on one side or the other, and even if there bail been litis question was dealt with by the court before it made the decree nisi. Ihe matter ior consideration now was whether a decree nisi marie upon proper grounds should he made absolute pnly on siteli conditions as would in elleet amount to a refusal of the right to divorce given hv the legislature. Where the husband had ample means different considerations would arise. Ihe wife s right 3 were at present regulated by agreement, hut she had in addition cot - tain statutory rights to enforce paymcnl o) maintcnrncc. (I*!t dissolution ol tit" marriage she would lose those statutory rights, hut )!* an order lor maintenance were matte she could enforce this by attachment, and retain also the whole of her contractual rights under the agreement. Her position as to maintenance after the divorce was not, therefore, verv materially worse than as at present. His Honor had to weigh the hah mice of inconvenience to her its against what must amount to tt relustd ol statutory rights to the husband' it lie were to make a decree absolute only upon a condition impossible tor the letitiunor to fulfil “It is said that if the husband gets his divorce.” continued His Honor, “he will no doubt remarry and undertake t'Touicr financial responsibilities than lie m, w has to his divorced wile. II he does so lie does il with his eyes open, and the wife ho takes will lm m like case.” In this case the wile had a separation agreement, under which she was entitled to maintenance at the rate ~f £1 5s per week, and this agreement was. specially framed to make tins covenant operative after dissolution " the marriage until the wife should remarry. He had already indicated that !k> sitw no reason why tho amount should ho increased, nor did lm Hunk il would he proper in Htis ease to order security under section 33 (1J <>t tho Ac.l . such a covenant endured notwithstanding the dissolution of the marriage by divorce.

"Notwithstanding lhal the husband s covenant remained, His Honor though ,Iml ihe wife was entitled to the additional security afforded by an order loi maintenance made under section 43. sjib section 2. such order to be limited to ,u, h time as she might remarry, and to l„, ~, ,l„, i;,te of CI -as pur week. So as lo make it plain thai only one sum of £1 5s per week was payable by tile husband, it would he a condition of Ihe order that if and lo the extent that lhe husband should pay and discharge his liabilitv under lhe covenant in lie separation de< d his liability under the order was In be discharged. In all oilier respects the wife's right-- under the separation agreement was lo Ito un affected. , , . His Ho • made a decree absolute a lu | allowed lhe wife costs £5 5s and disbursements on her petition. At the hearing! Mr. T. A. Coleman appeared for lhe husband, and Mr. L. 'I Bimiarcl for the wife.