The Wanganui Chronicle. "Nulla Dies Sine Lines." MONDAY, MARCH 29, 1909. SEPARATION AND DIVORCE.

Wanganui Chronicle, Volume L, Issue 12185, 29 March 1909, Page 4

The Wanganui Chronicle. "Nulla Dies Sine Lines." MONDAY, MARCH 29, 1909. SEPARATION AND DIVORCE.

The English Court of Appeal has just cle.ided that a woman who has obtained a police court separation from her husband on the ground of desertion, unless that desertion has lasted for two years" before the order is obtained, is for ever barred from obtaining a divorce, no matter what the subsequent conduct of her husband may be. The decision, which is one of the most important in divoreo law over de.iverod, was'concurred in by six judges—the Master of the "Rolls and Lords Jnsticos Vaughan Williams, Moultan, Farwell, Buckley, and Kennedy. The case was an appeal from the decision of Mr Justice Bucknill sitting in the Divorce Court denying a divorce to Mrs Lily Isabel Harriman on ihs ground of desertion and misconduct of her husband, William Vines Harriman. The facts were as follows: Mr and Mrs Harriman were married- in 1890, and lived happily together until July, 1906, when Harriman left for his work one mornffig,- and did not return. -Eight months later Mrs Harriman obtained a separation order at the Lambeth Police Court, I coupled with an order to pay her 25s p. week, which was never obeyed. Subsequently she- discovered that her husband had been guilty' of misconduct, and she sued for divorce. Mr Justice Bucknill 'decided that she cculcl riot succeed because the Divorce Court only recognises desertion when it is of two years' duration, and he. held that the desertion ceased as soon as the magistrate made an order relieving.the husband of the duty of living any longer with his wife. The 'Court cf Appeal held that Mr Justice Bucknili was."right in this view of the law. The Master cf tho Rol's pointed out that the case would have been different had the separation order bsen granted on the ground of cruelty, but he declared that the husband could not be held guilty of continuous desertion after the wife by her own act had secured an order forbidding him to live with her. Lord Justice Vaughan Williams read a similar opinion, and Lord Justics Moulton, while agreeing with his colleagues, declared that he thougni it was a serious reproach on the divorce law of England that the relief granted was usually out of the reach of the working classes by reason of expense. "It seems to me most reasonable/ he said, "that, having proved cruelty before a court of summary jurisdiction, the wife, probably a poor woman, should, bo entitled to rely on- it and should not have to prove the cruelty afresh before the Divorce Court, if the misconduct of her husband allowed her the right to a divorce. But, applying the principle of law to the present case, the court is not justified in holding that the magistrate's order is sufficient to satisfy the court as to the matrimonial issue of cruelty or desertion. If an order for restitution of conjugal rights is disobeyed, a wife can fit onco apply for a divorce, as disobedience to tho order Is evidence of desertion. But in this case the full two years must run, and I agree that the desertion in law ceased when the magistrate's order was made." An English barrister, in giving his opinion as to theeffect of this decision, states that it wi'l prevent a woman who has obtained a separation order from*a magistrate on the givund cf desertion of less than two years from subsequently obtaining a divorce, should her husband aft?rwards cgiilmit misconduct, on the grounds of misconduct and desertion. For while a separation order may be obtained for desertion of short standing, the Divorce Court on'y recognises desertion of two years' duration at least. Consequently, the d'fikulty which the decision of Mr Justice Bucknill created, and the Court of Appeal has now perpetuated, is to bo found in the legal decision that a magistrate's s?paration order puts a stop to the desertion of the husband. If the woman is to bo regarded in the eyes of tho law as a single woman thenceforth, it follows that there can be no legal obligation on the husband to reti'rn to cohabitation. Therefore, if at tho limo of obtaining the separation order from the magistrate the deserlion has not extended to two years, the unfortunate 'woman can never allege before tho Divorce Court a length of c!e-] sertion y.-hioli jvi-.l enable it to grout n. decree nisi. The same authority paint* ,

cut, further, so far as the Mother Country i^ concerned, that the position" <>£ tie thousands of men and women annually separated by magisterial order" is a menace to the morals of the community. Ton years ago 5949 such orders wore made, releasing from cohabitation but net giving power of remarnnge to 11,898 persons. Last year 71 oS orders-were triads, again releasing from cohabitation but not allowing the remarriage ot! 11,316 prisons. These figure?., by the way, represent more than eleven times tiie number of perron:: affected by the Divorce C.mrt last year. As S.'r Gorell Barnes, until the other day the President of tho Divorce Division, ha? pointed cut, such facts giv.-- foo.i for reflection. "The direct tendency of these r.rders," said his lordship in the case of Dodd v. Dodd (on tho judgment in which case the Court of Appeal relied in the Harrison case), "appears to ba to encourage immorality and t-> prcduce deplorable results." As the divorce law of New Zealand is fundamentally the same as the English law, tho question naturally arises as to whether this startling decision will hevo the same effect here as in England. In the opinion of Mr George Hutchison, to whom the published judgment in connection with the Harrinian appeal was submitted, the decision will certainly govern New Zealand cases until our law has been so amended as to remove the burdensome anomaly. As tho law at present stands, a woman can secure a separation upon proving to the satisfaction of a magistrate that her husband has left her and failed to provido for her support; but for the purpose of securing a divorce the period of desertion is fixed at five years and over. The injustice of the position created by the decision of the English Appeal Court is obvious, while from the point of A'iew of public policy it is clearly undesirable *o-perpetuate a conflict between the Courts as to what amounts to legal desertion.' The logic of the decision cannot be questioned. Tt is evident that if a woman secures a reparation order from" her husband he ■cannot, by complying with the terms d tho order, be said to be continuing the offence of desertion. In short he ceases to be a deserter, both in law and in fact, from the date on which the separation order is made. But it was never contemplated that the granting to a woman of the measure iof protection afforded by a separation order should debar her from ever obtaining 1 a divorce.