GERNHOFFER DIVORCE

Taranaki Daily News, 18 August 1934, Page 5

GERNHOFFER DIVORCE

DECREE" NISI TO HUSBAND — .., ■ ■. . ‘ \ ■■ '.l ■ ! ' - - DAMAGES SUIT WITHDRAWN. COSTS AGAINST CO-RESPONDENT. COURT OF APPEAL ON NULLITY. The case' in which Albert Ernest Gemhoefer, factory hand, 'Toko, petitioned for divorce from Annie Elizabeth Gem- ( hoefer on the grounds of adultery with Cyril Wilmot Chainey, farm manager, Toko, from whom Gemhoefer also claimed .£5OO damages, was settled in the Supreme Court at New Plymouth yester- . day. . . a -W Mr. N. H. Moss, counsel for Gemhoefer, announced that as the result of a conference it had been agreed to ask that the case for damages be withdrawn from the jury, and that on the evidence submitted a decree nisi be granted with costs against the co-respondent Chainey, on the lowest scale as in a defended action, with permanent custody of the child to the respondent, Mrs. Gemhoefer. His Honour Mr. Justice Blair: There to ? ample evidence of adultery; the course seems a very proper one. Mr. Moss asked that a decree nisi to’ J be made absolute in three months be / granted in view of the fact that custody ■; had been agreed to. His Honour in granting a decree nisi as requested said he would make the decree both ways—to be moved or to be made absolute—until he had looked into : the position. ■ ■ Mr. Percy Thomson represented Mrs. . Gemhoefer and Chainey. The jury was dispensed with. The oral judgment of Mr. Justice Ostler in the Supreme Court at New Plymouth on August 23, 1933, when the pre-, sent respondent (Mrs. Gemhoefer, before her marriage.Miss Annie Elizabeth Leon- " ard and boro at Hurstmonceaux, Sussex, England) petitioned that her . marriage with the present petitioner, Albert Ernest Gemhoefer, be declared null and void on the grounds of non-consummation owing to the alleged incapability of the present petitioner to consummate was as follows:— “Having come to a dear conclusion in this case it is unnecessary for me to reserve my decision. The question is whether any pf the evidence which I have ■ heard which tends to show that the child of the petitioner (Mrs. Gemhoefer), bom in wedlock, is illegitimate is inadmissable. . As I read the judgment of the majority of the Court of Appeal in the recent case • of Rex v. Seaton (1933, N.Z.LR. 548), the rule against the inadmissibility of evidence tending to illegitimatise children is not confined to legitimacy cases, but is a general rule of evidence applicable to the whole of our legal system. Consequently in any case where evidence is tendered to a Court which tends to illegitimatise a child born in lawful wedlock, that evidence is inadmissible. “I do not agree with the decision of the majority of the Court of Appeal. It seems to me lamentable that the Court must shut its eyes to the truth, because of this so-called principle, which j has been. contemptuously referred to- by ,ran eminent Law Lord as not a principle but a taboo (see the judgment of Lord Stunner in Russell v. Russell,l924, A.C. 687). But,’ of course, I am bound by the decision of the Court of Appeal; and that being so I must reject the evidence ten- ■ dered to me which tends to show that the child of this marriage is.illegitimate. That evidence being rejected, in my opinion there is not sufficient evidence upon wiiich to found a decree." The suit will therefore be dismissed.” ) . Following this' decision Mrs. Gemhoefer took her petition for nullity to the Court of Appeal, which dismissed it Lord Sumner is described in the New, Zealand Law Journal of July 24, 1934 (page 186) as the. greatest lawyer of this : generation.