A Divorce Law Difficulty.

South Canterbury Times, Issue 8777, 12 March 1897, Page 2

A Divorce Law Difficulty.

A divorce case came before Mr Justice Williams at Dunedin on Wednesday in which a Mrs Nikel was the petitioner. Mr Macgregor, who appeared for her, stated that the parties were married in Dunedin in 1885, and they lived together at Dunedin, Christchurch, Sandhurst, Melbourne, and Sydney. There were two children living, of ten and eight years. .In November, 1890, the parties were living together in Sydney, on good terms, and the petitioner, at the request of the respondent, left Sydney for New Zealand to visit her relations and recruit her strength. She left hurriedly, and took her children with her. On leaving the respondent said that he would send for her in six weeks at the latest. Thera was no suspicion that he intended to desert her. In March, 1891, she got a letter and £2 from him, and the next letter she got, four months, later was from London, promising to send for her as soon as he could. In August he sent her a draft for £2O, and she heard no more from her husband till 1894, when he sent her a draft for £3O. In 1894 independent inquiries were made in London as to what the respondent was doing, and then facts were discovered which he (Mr Maegregor) did not propose to prove, but which explained the attitude of Mr Nikel. Learned counsel said that the respondent was served in London. The petition was for dissolution of marriage, thegrounds being desertion and adultery. The petition was filed so long ago as November of 1895, but since then the decision in the, case of Le Mesurier v. Le Mesurier hacl appeared, and he was afraid that after that decision the petitioner could not get a decree dissolving the marriage here, so now it was decree of separation that was asked for, on the ground of desertion. It seemed, since the case referred to, that even if a decree dissolving the marriage was obtained, it would be of no no avail outside the colony. His Honour remarked that the Le Mesurier case was supposed to settle a number of conflicting points, but he was afraid that the result was exceedingly doubtful, and there was a question whether a number of the divorces obtained here were of effect outside the colony. Mr Macgregor: We do not wish to add to the number. Learned counsel proceeded to argue, on the authority of Drummond v. Drummond, that there was power to alter the petition and ask for a decree of separation. His Honour said he supposed the greater included the lesser. The only question seemed to be as to domical. So far as he understood from the pleadings, wherever the actual domicil was, there was what was called matrimonial domicil in New South Wales. Mr Macgregor replied that there was also matrimonial domicil in New Zealand. The parties never intended to leave New Zealand. Respondent was a life insurance agent, travelling round the colonies. Honour said that probably, so far as judicial separation went, the nonppeac«

anceofthe respondent would be sufficient, if he did not object to jurisdiction. Then even if there was jurisdiction you are not in a position to establish the right to divorce. Mr MacGregor: That is so, your Honour, and *1 have advised Mrs Nike! that if she wants a divorce she will have to go Home for it. His Honour: You rely on the desertion for two years ? Mr MacGregor: That is so. Petitioner was then examined, after which

His Honour said there was sufficient before the Court to justify a decree of judicial separation, and the giving custody of the children to the mother, and ordering costs against the respondent. Mr MacGregor said that petitioner also asked for alimony. His Honour suggested that there had better be some evidence as to respondent’s means.

Mr MacGregor said he was afraid he could give no more than hearsay evidence.

His Honour said that it would be as well to have an affidavit giving such evidence as could be procured, and, as alimony had to be part of the decree, the whole decree had better stand over.

The Evening Star remarks on the case: —According to what was said by His Honour, thecitedcase may have an important bearing upon some decrees for dissolution of marriage that have been pronounced in New Zealand. The Privy Council’s decision appears to be that the only Court which can grant a valid decree of such a nature is the Court of the country in which the husband has his domicil. In most cases this means the country in which the husband happens to have been born. Previous to the decision in Le Mesurier’s case it appears to have been taken for granted,after a conflict of judicial opinion, that thereraight have been acquired what is known as matrimonial domicil, sufficient to enable the innocent party to procure a decree for nullity of marriage in the country where the parties resided for the time being. That doctrine appears to be effectually dissipated by the judgment of the Privy Council referred to. It may be noted, however, in order to prevent any unnecessary uneasiness, that a decree for nullity founded on a supposed matrimonial domicil, although probably nugatory outside New Zealand, still remains perfectly valid within the colony la which it is granted.