LAW OF DIVORCE

Southland Times, Issue 21650, 11 March 1932, Page 8

LAW OF DIVORCE

A UNIQUE POINT CASE BEFORE COURT OF APPEAL DECISION RESERVED (Per United Press Association.) Wellington, March 10. A question of law arising out of divorce practice is occupying the attention of the Full Court. On December 4, 1930, Alfred Shepherd Dawson Rose, of Wellington, entered into a deed of separation with his wife which contained a covenant that he would not endeavour to compel her to cohabit with him or seek to enforce any restitution of conjugal rights. On June 24, 1931, Rose filed in the Supreme Court a petition for restitution of conjugal rights, a copy of which was served on Mrs Rose who, instead of filing an answer and pleading therein the deed of separation as a bar to making the order, ignored the proceedings and failed to take legal 'advice. When the matter came before the Chief Justice for hearing he raised and reserved for the opinion of the Full Court the question whether the deed of separation, existing as it did but not having been pleaded by the wife, was a bar to making the order for restitution of conjugal rights. On the bench are the Chief Justice, Sir Michael Myers, and Justices Herdman, MacGregor, Blair and Kennedy. When the case was called counsel for Mrs Rose appeared and asked leave to argue the point involved as amicus curiae, explaining to the Court that his client, while failing to file the required answer, nevertheless desired to oppose the order being made. The request was granted. Counsel submitted that as the deed was not pleaded, it should be disregarded by the Court for that was the law in England and should apply here. If it had been pleaded, it would have been open to the Court to inquire into the circumstances surrounding its making, then possibly ignore it. As however it was not pleaded, the Court was denied the opportunity of investigating those circumstances. Counsel for respondent on the other hand contended that English cases were unsatisfactory. They did not proceed on any settled rule of law but had been decided on a ■ considerable number of different grounds. The weight of authority in Australia and New Zealand was to recognize and give effect to a deed where it had not been pleaded, this course being based on reasons of public policy. The Court reserved their decision.