UNUSUAL DIVORCE POINT

Taranaki Daily News, 11 March 1932, Page 9

UNUSUAL DIVORCE POINT

PETITION FOR RESTITUTION PRIOR DEED OF SEPARATION. i QUESTION OF ADMISSIBILITY. COURT RESERVES ITS DECISION. & By Telegraph.—Press Association. Wellington, Last Night. A question of law arising out of divorce practice occupied the attention of the Full Court of Appeal to-day. On December 4, 1930, Alfred bhepherd Dawson Rose, 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 the restitution of conjugal rights, a copy pt 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 the making of the order for restitution of conjugal rights. On the bench were the Chief Justice, Sir Michael Myers, Sir Alexander Herdman and Judges MacGregor, Blair and When" the case was called counsel for Mrs. Rose appeared and asked leave to argue the point involved as an amicus curiae, explaining to the court that his client, while failing to file the required answer, nevertheless desired to oppose the order being made. . Counsel for the petitioner 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 in .New Zealand. If it had been pleaded it would have been open to the Court to inquire into the circumstances surrounding its making and then possibly ignore it. As, however, it was not pleaded the court was denied the opportunity of investigating those cirCU Counsel 6 for .respondent contended That the English cases were unsatisfactory. Thev did not proceed on any settled rule-of daw but had been on a considerable number .of . different o-rotinds. The weight, of authority .in Australia and New Zealand was .to, recognise and give effect to a deed . where it had not been pleaded, this course bebased on reasons; of public policy. Tlid Court reserved its decision.