DESERTED IN ENGLAND.

Waikato Times, Volume 104, Issue 17533, 15 October 1928, Page 6

DESERTED IN ENGLAND.

WIFE NOW IN N,Z. PETITION FOR DIVORCE FAILS. COURT NO JURISDICTION. Can a wife who has been deserted abroad, and has since become permanently domiciled in New Zealand obtain a divorce on the grounds of desertion? This point was decided in the negative by His Honour, Mr Justice Blair, at Hamilton to-day. At the last sitting of the Hamilton Supreme Court, Elizabeth Annie Ellis, of Waitoa, petitioned for a divorce from her husband, Charles Ellis, who is domiciled at Kempton, Brighton, England, on the grounds of desertion. Plaintiff said she married respondent in England in May, 1919, and was deserted by him in September, 1924. In November, 1924, petitioner obtained a separation order in the Thames Police Court, London- The order itself states that while in force it will have the effect in ail respects of a. decree of judicial separation on the ground of cruelty: Petitioner has had no maintenance from her husband since the desertion. In 1925 she joined her brothers In New Zealand, and has established her permanent home here. At the hearing Mr Justice Blair intimated he was satisfied that desertion has been proved, but deferred the matter in order to look into the question of domicile. In his reserved judgment to-day His Honour said he would assume that petitioner had done all that was required to acquire a domicile separate from that of her husband. His Honour pointed out that by sub-section 3 of section 21 of the Divorce and Matrimonial Causes Act, 1908, special provision was made for a wife deserted in New Zealand retaining her New Zealand domicile. As petitioner was, however, deserted in England and then came out here to reside, she could not obtain the benefit of this section. His Honour quoted the case of Hastings v. Hastings in which Mr Justice Adams on a consideration of the authorities, held that the balance of authority was in favour of the view that where a wife has obtained a decree of judicial separation she is entitled to acquire a domicile independently of her husband. In Jackson v. Jackson, 1923 N.Z.L.R., 608, Mr Justice Salmond at page 616, referring to Hastings v. Hastings, said: "The question will not really arise for definite determination until a wife whose husband is domiciled abroad sues for divorce in New Zealand and claims to have acquired a separate domicile here in exercise of the power conferred on her by a decree of judicial separation from her husband." This very point arises in this case, and but for a recent decision of the Privy Council I should, owing to the importance of the question, have referred the matter to ; the Court of Appeal. j But, continued His Honour, the At- j torney-General, in the case of Alberts j v. Cook, 1926, A.C. 444, said the pre- J cise question whether a wife judicially j separated could acquire a domicile | separate from her husband, came up | for decision. The case was, owing to j its importance, twice argued before j the Privy Council, and the Court decided that the possession of a decree of separation did not entitle the wife , to acquire a separate domicile. At page I 465 it says: "The contention that a wife judicially separated from her husband is given choice of a new domicile I is contrary to the general principle on which the unity of domicile of the married pair depends." His Honour said the petition must be dismissed for want of jurisdiction.