HUSBAND IS NOT ALLOWED DIVORCE.

Star (Christchurch), Volume XLIV, Issue 72, 25 March 1931, Page 8

HUSBAND IS NOT ALLOWED DIVORCE.

WIFE MADE GENUINE OFFER TO RETURN

■ A petition for * divorce brought by George Thomson (Mr A. J. Malley) against his wife, Alice Annie Thomson (Dr A. L. Ilaslam) on the grounds of desertion, was dismissed by Mr Justice Kennedy in a reserved judgment delivered in the Supreme Court to-day. The petition was heard last week. “This is cb petition for divorce on the grounds that the respondent wilfully deserted the petitioner without just cause and left him continuously so deserted for three years and more,” stated his Honor. “The respondent left her husband’s home to live elsewhere with her son and her sister, who, respondent said, ‘was going to spend her money on respondent and her son now.’ The evidence leaves no doubt that in so doing the respondent wilfully deserted the petitioner. Notice of Return. “More than two and a half years after the desertion commenced, the wife, through her solicitor, wrote to her husband intimating that notwithstanding her protests her sister had left to live with other relations. The respondent’s solicitor said, ‘ln the circumstances Mrs Thomson (the respondent) is without means and she has instructed me to write to you to notify you that she will be returning to your home. I should be glad if you would let me know when it would be convenient to you for her to do so.’ “Petitioner’s solicitor, under instructions, replied that the petitioner would not take his wife back on any account, but that he Was willing to pay 35s per week and enter into a deed of separation. After some correspondence petitioner’s solicitor wrote stating that petitioner did not feel justified in signing any agreement but would keep up his payments. Petitioner and respondent continued to live separate and apart and petitioner, giving evidence, stated that as far as he was concerned he was quite decided that he was not going to have the respondent back. He had been in the same state of mind ever since she had left him. Behaved Badly. “There is no doubt that the wife be--1 haved badly and that one would be glad to give the husband the relief asked for. But divorce may not be granted unless the desertion has continued for three years and upwards. This period would expire only in September, 1930, and in April of that year the respondent offered to return and the petitioner refused that offer. Desertion is terminated by a proper offer to resume co-habitation, but not by an offer that is not bona fide.

“ In this case the offer to return was unconditional and the refusal to receive the respondent absolute. This is the ordinary case of a wife without good cause leaving her home and after intimating on leaving that she has left for good subsequently desiring to return. I am unable, in the circumstances disclosed in the evidence, to infer that the offer to return was not a bona fide offer. “ More Tactful.”

“ While it is easy to imagine cases in which a letter may be written making an offer in the expectation and desire that it may not be accepted and merely to afford colour for an application for maintenance, I do not think there is evidence here sufficient to warrant my treating the offer to return as so made. A personal offer would have been more tactful and the letter announcing the intention to return might have been phrased in terms less' blunt. Nevertheless, upon the material before me, I am unable to conclude that it has been proved that the offer to return, made when circumstances had changed and after a considerable lapse of time since the desertion commenced, was not bona fide.

“ The onus of showing that an offer, on the face of it genuine, is not bona fide lies upon the petitioner, and I am of opinion that that has «ot been shown in this case. The petition is dismissed and the petitioner will pay respondent’s costs on the lower scale with witnesses’ expenses and disbursements to be fixed by the Registrar.”