APPEAL GRANTED

Waikato Independent, Volume XXX, Issue 2316, 27 March 1930, Page 6

APPEAL GRANTED

THE STEAD CASE. MAGISTRATE'S ORDER CANCELLED. AUCKLAND, March 25. Mr Justice Ostler gave his decision to-day on the.appeal against an order made by Mr Cutton, S.M., whereby Annie Louisa Stead was ordered to pay her husband, Gerald Lovat Stead, as a destitute person, £5 per week, on the grounds that the circumstances had changed and that new material evidence had been discovered.

The appeal was allowed with ten guineas costs, witness' expenses and disbursements.

"It seems monstrous that a husband living in adultery with another woman, carrying on a business with her, under an agreement to marry her as soon as he obtains a divorce from his wife, should have a right by law to force his wife to maintain him," said His Honor. "In my opinion this fact is sufficient cause for the failure of the wife to make provision for respondent's maintenance.

"It will be noticed that the provisions in the Act of 1910 for the maintenance of a husband by his wife are not exactly reciprocal with the provisions for the maintenance of a wife by her husband," said His Honor. "There is no corresponding provision to the subsection quoted above in the case where a wife is applying for maintenance from her husband. The subsection was. new in the 1910 Act, there being

no corresponding provision in any prior Act. Under the Acts-it was decided that if a wife were. t". , j: tutc there was an obligatio"! on the husband to support her even though she were living in adultery." In his review of the evidence His Honor said Stead was married in 1909. His father, who had been an exceedingly wealthy man, had died in 1908, leaving an estate of some £166,000, of which respondent obtained one quarter under his father's will. Immediately prior to his marriage respondent executed a marriage settlement under Which he transferred £IO,OOO, being a portion of his share under his father's Will, to trustees upon trust to pay the income thereof to the extent of £3OO to his wife, and the balance, if any, to himself.

His Honor referred to Stead's racing associations; also the subsequent separation under the deed of which the income from the marriage settlement over and above £3OO should be paid to the wife and used exclusively by her for the education of the children. His Honor went on to refer to Stead's association with a man and. a small business a.t Takapuna, and made the remarks mentioned in the foregoing.

"Quite apart from the ground tipon which the appeal has been allowed, I am far from satisfied, from the evidence that at the time,the magistrate declined to cancel the order the respondent was a destitute person at all. If I had to decide the point, I should certainly come to the conclusion on those facts that the respondent was. not a destitute person: Moreover, he is only 47 years of age. and I can see no apparent reason why he should-not do some man ;

tial labour. Moreover, I find it difficult to understand why, assuming he was a destitute person, the magistrate made an order against his wife for maintenance amounting to no less than' £5 a as the £IO,OOO in the marriage sottlc-

-ni'i.t had belonged to ' respondent, it wn" equitable that he should be allowed pome of the income from it, but blithe marriage settlement £3OO had been irrevocably settled on his wife, and by the deed of separation he had irrevocably made over the balance of the income for the education and maintenance of his children until they attained

the age of 21 years or married under that age. .He did this of his own free will.- It was stated in evidence that

the income from the £IO,OOO was £570. "The effect of the magistrate's order was practically to give back to him the whole of the money which he had voluntarily made over for the education and maintenance of his children. The ages of those children arc lO*, 171 and 154 years. In the course of 18 months one-third of that income will revert to him. and as each of the other children attains 21 years of age, even if they do not marry earlier (all being girls), the balance of that income will be his. He has not parted with it altogether. I can sec no equity, even assuming that he is destitute, in taking the whole of that income away "from the children at a time when it may be vital to their interests, in order to help maintain him and the woman he is living with."