MARRIAGE ACT 1915.

MAHBIAGE. 3187

MARRIAGE ACT 1915.

An Act to consolidate the Law relating to Marriage e GEOR«E v., and to Guardianship and Custody of Infants -— and to Deserted Wives and Children and to Divorce and Matrimonial Causes.

[6th September, 1915.]

BE it enacted by the King's Most Excellent Majesty by and with Marriage Act

the advice and consent of the Legislative Council and the Legis-1890,

lative Assembly of Victoria in this present Parliament assembled and by the authority of the same as follows (that is to say) ::—

1. This Act may be cited as the Marriage Act 1915, and shall short title come into operation on the first day of October One thousand nine £n™Tvision?n

hundred and follows:—

fifteen, and is divided into Parts and Divisions as

Part I.— Marriage.

Part Part

Division 1.—Qualification of Celebrants, ss. 4-18. Division 2.—Celebration of Marriages, ss. 19-27. Division 3.—Marriages not to be avoided or

affected for certain reasons, ss. 28-36. Division 4.—Minors, ss. 37-41. Division 5.—Marriage with Deceased Wife's Sister,

s. 42. Division 6.—Quakers and Jews, s. 43. Division 7.—Eules, s. 44. Division 8.—Offences, ss. 45-58.

II.—Guardianship and Custody of Infants, ss. 59-82. III.—Maintenance of Destitute or Deserted Wives and

Children, ss. 83-100. IV.—Orders for Confinement Expenses, ss. 101-109. V.—Decrees for Judicial Separation, ss. 110-121.

VI.—Decrees for Dissolution of Marriage, ss. 122-145. VII.—Eemedies against Adulterer, ss. 146-149.

Part VIII.—Provisions for the Benefit of Children and as to Property, ss. 150-154.

IX.—Miscellaneous Provisions relating to Matrimonial Causes, ss. 155-177.

Part Part Part Part

Part

3188 MARRIAGE ACT 1915. [6 GEO. V.

Marriage Act 1890. Repeal. First Schedule.

Interpretation. lb.«. 3. " The Court." " Judge." Marriage Act 1898 s. 4.

" Registrar of marriages."

" Guardian of minors."

Persons who may celebrate marriages. lb. «. 5.

Ministers heretofore registered. lb. i. 6.

Who may be registered. lb. t. 7.

2. The Acts mentioned in the First Schedule to this Act to the extent to which the same are thereby expressed to be repealed are hereby repealed.

Such repeal shall not affect any marriage celebrated, or any appointment rule regulation order decree complaint application affidavit affirmation declaration or registration made, or any fee fixed, or any notification notice certificate or security given, or any petition filed, or any commission summons or warrant issued or granted, or any service effected, or any right acquired or any liability incurred or any agreement deed or instrument entered into or executed, or any appeal pending under the said Acts or any of them before the commencement of this Act.

3 . (1) In the construction of this Act— " The Court" means the Supreme Court, and " Judge " means a Judge of the Court.

(2) In the construction of any Act and any entry register certificate or other document unless the contrary intention appears—

the expression "registrar of marriages" means any officer heretofore or hereafter appointed by the Governor in Council for the purpose of celebrating marriages; and

the expression " guardian of minors " means— " (a) any police magistrate, or

(b) any justice appointed heretofore or hereafter and authorized to act as a guardian of minors.

PART I.—MARRIAGES.

DIVISION 1. QUALIFICATION OF CELEBRANTS.

4. The following persons and none other may celebrate marriages:— (a) A minister of religion whose name is registered in the office

of the Government Statist: (b) The Government Statist or any registrar of marriages heretofore

or hereafter appointed.

5. Every minister of religion who, immediately before the commencement of this Act was registered in the office of the Government Statist as a minister who might celebrate marriages, shall, subject to the express provisions of this Act and without further or other authority than this Act, be and be deemed to be registered in the office of the Government Statist pursuant to this Act as a minister of religion who may celebrate marriages.

6. Except as aforesaid no person shall be registered as a minister of religion who may celebrate marriages—

(a) unless he is a minister of religion ordinarily officiating as such in one of the religious denominations ministers of which at the time of the commencement of this Act were registered as persons who might celebrate marriages; or

(b) unless he is a minister ordinarily officiating as such in a religious denomination which the Governor in Council may at any time hereafter by order published in the Government Gazette declare to be a religious denomination for the purposes of this Act.

No. 2691.] ' M A R R I A G E A C T 1915. 3189

7. No minister of religion shall be registered as a person who may MarAage Act n ^ 1898 s 8

celebrate marriages until the Government Statist has received a requisi- j^-^J , , , , (0± tion requiring that such minister may be registered as a minister of registration, religion for celebrating marriages in Victoria.

8. (1) Such requisition shall be in writing, and shall be signed by information to the applicant and by the recognised head in Victoria (if any) of the ?e

eqK/ond m

religious denomination to which the minister required to be registered n.«. 9. belongs.

(2) If there is no such recognised head, then such requisition shall be signed by any two or more registered officiating ministers of religion who in such requisition shall specify the religious denomination of which they are registered officiating ministers of religion.

(3) Such requisition shall with reference to the minister of religion required to be registered state—

(a) the full name and surname of such minister ; (b) the religious denomination of which he is required to be regis

tered as a minister; (c) his designation and whether according to the tenets of such

denomination he is a minister of such status as entitles him to celebrate marriages ;

(d) that he ordinarily officiates as a minister of religion of such denomination;

(e) his usual place of residence ; ( / ) the church chapel or other place of worship or building in

which worship is conducted in which he ordinarily officiates as a minister of religion ; and

(g) such other particulars as may be prescribed by any rules and regulations made pursuant to the provisions of this Act.

9. The Government Statist, before registering any person as a verification of minister of religion who may celebrate marriages, may require proof "j?qui3!,!on' to his satisfaction, and if he thinks fit he may require the same to be verified by statutory declaration—

(1) that any person signing any requisition as the recognised head of any religious denomination is actually the recognised head in Victoria of such denomination ; and

(2) of any statement made in any requisition ; and (3) of the authenticity of any signature to any such requisition.

10. (1) If satisfied that the requisition is duly signed and of the Registration, truth of the statements made in the requisition, and that the minister Ib- «•n-of religion named therein is a fit and proper person to celebrate marriages, arid if the religious denomination of which the person proposed to be registered as a minister is one of the religious denominations ministers of which at the time of the commencement of the Marriage Act 1898 were registered as persons who might celebrate marriages, or one of the religious denominations declared by Order in Council to be a religious denomination for the purposes of the Marriage Act 1898 or of this Act, the Government Statist may thereupon register the person named in the requisition as a minister of religion who may celebrate marriages.

VOL. iv.—o

3190 MAERIAGE ACT 1915." [6 GEO. V.

Marriage Act 1898. Appeal against refusal to register.

Registration to be published. lb. «. 12.

Loss of qualification to be notified. lb. t. 15.

Cancellation.

Duty of Government Statist where no notification is received.

(2) In the event of the Government Statist refusing or failing so to register the person named in any such requisition, such person may apply to the responsible Minister of the Crown administering this Act for an order requiring the Government Statist to register such person as a minister of religion who may celebrate marriages, and such responsible Minister after considering such requisition and all the proofs therewith connected, and after hearing (if he thinks fit) the applicant and the Government Statist, may if he thinks fit direct the Government Statist to register such person as a minister of religion who may celebrate marriages, and the Government Statist shall thereupon register such person accordingly.

1 1 . The Government Statist within one month after registering the name of any minister of religion, pursuant to the provisions of this Act, shall cause the fact of such registration to be published in the Government Gazette, and such publication shall be prima facie evidence in all courts of justice that such minister is a duly registered minister of religion for the celebration of marriages in Victoria.

12 . (1) If any minister of religion, registered with the Government Statist whether at or after the commencement of the Marriage Act 1898 as a minister of religion who may celebrate marriages—

(a) dies or departs from Victoria ; or (6) ceases to exercise the functions of an officiating minister of

religion of the religious denomination in respect o£ which he is registered ; or

(c) is degraded or deprived of his authority as a minister of religion by his superior or by the recognised church court or tribunal of the religious denomination to which he belongs; or

(d) is a minister of religion registered on a certificate from two or more officiating ministers of religion and such certificate is at any time withdrawn by the ministers who granted or signed the same,

a written notification of the fact of such death departure cessation of ministry degradation deprivation or withdrawal shall within thirty days thereafter be given to the Government Statist by the recognised head in Victoria of the denomination to which such minister belonged or by the said superior or church court or tribunal by whom he is so degraded or deprived of authority or by the ministers so withdrawing their certificate. If in any religious denomination there is no such recognised head or superior or church court or tribunal or if the ministers or one of them on whose certificate any minister was registered are dead or out of Victoria, then such notification may be so given by the surviving or remaining minister or by any two ministers of religion of the denomination in respect of which such minister is registered.

(2) On receipt of such notification the Government Statist may if he thinks fit cancel the registration of such minister of religion.

(3) If within the said thirty days no notification is received by the Government Statist, it shall be the duty of the Government Statist to report to the said responsible Minister the fact of the death departure

No. 2691.] • MARRIAGE ACT 1915. 3191

cessation of ministry or degradation of any such minister or the fact Marriage Ad of such withdrawal, and thereupon if so ordered by the said responsible Minister the Government Statist shall cancel the registration of such minister of religion.

(4) Upon the cancellation of the registration of a minister of religion Effect of such minister shall cease to possess the qualification to celebrate marriages.canoeUfttlon-

13 . Before so cancelling the registration of any minister of religion verification of on the notification of any person claiming to be the recognised head in n°tlflo*'ion-Victoria of a denomination the Government Statist may require proof to his satisfaction, and if he thinks fit he may require the same to be verified by statutory declaration—

(a) that any person signing any notification as the recognised head of any religious denomination is actually the recognised head in Victoria of such denomination ; or

(b) of any statement made in any notification.

14. In the. month of January in each year the. recognised head i n List of ministers

Victoria (if'any) of each religious denomination shall make up and send denomination to the Government Statist a full and complete list of the names of all anmmiiy'toed

ministers of that denomination with their designations and residences Government already registered and eligible to be registered for the time' being by Marriage Act the Government Statist as ministers for celebrating marriages in Vic-1909 *•6-toria who are exercising the functions of officiating ministers of such denomination and have not been degraded or deprived of their authority by their superior or the recognised church court or tribunal of the denomination.

The names of any registered ministers except ministers registered Names of under sub-section two of section nine of the Marriage Act 1898 or sub- n^moveT* section two of section eight of this Act whose names do not appear in£rom "s^ter. such lists shall forthwith be removed from the register of persons authorized to celebrate marriages.

15. (1) The Government Statist may whenever he thinks fit and Publication of shall at least once in every two years cause to be published in the Govern- Mâê Act

merit Gazette the names of all persons for the time being registered in 1898«. 13. his office as ministers of religion who may celebrate marriages, with their designations denominations and residences.

(2) Every such publication shall be 'prima facie evidence in all courts and before all persons acting judicially that the persons named therein and no others were at the time of such publication ordinarily officiating and duly registered ministers of religion for the celebration of marriages in Victoria.

16. (1) Notwithstanding anything contained in this Act, it shall Power to be lawful for the Governor in Council to prohibit from celebrating ministers from

marriages in Victoria any minister of religion who— mirrfagSIf (a) is convicted of any felony or indictable misdemeanour; or felony &c. (b) is guilty of any misconduct in the celebration of any mar- n>.«. 14.

riage; or o 2


Marriage Act 1898.

Notification of prohibition.

Inquiry as to charge of misconduct or impropriety.

(c) is guilty of such impropriety as to the time mode manner or place of celebrating marriages as renders it inexpedient that he should continue to celebrate marriages; or

(d) is guilty of any breach of this Act or any Act hereby repealed.

(2) Notice of every such prohibition shall be published in the Government Gazette, and such prohibition shall take effect from a day to be specified in such notice, and thereupon any minister named in such notice shall cease to possess the qualification to celebrate marriages.

(3 Before any minister is prohibited from celebrating marriages on account of any such misconduct or impropriety or breach as aforesaid he shall be charged by the Government Statist with such misconduct or impropriety or breach and the Governor in Council shall appoint not less than three nor more than five fit and proper persons of whom a judge of the county court shall be one to inquire as to the truth of such charge; and such persons shall have authority to hear receive and examine evidence on oath and shall after fully hearing the case in the presence of the accused or in his absence if after due notice he has neglected to attend report to the Governor in Council their opinion thereon. In the case of a minister who is convicted of any felony or indictable misdemeanour, no inquiry under this sub-section shall be necessary.

Effect of making a business of celebrating marriages. Marriage Act 1909 ». 4.

17. Notwithstanding anything in this Act contained any minister of religion of any denomination, who in the opinion of the Chief Secretary makes a business of celebrating marriages for the purpose of profit or gain irrespective of carrying out the ordinary duties of a minister of such denomination, may by order of the Governor in Council on the report of the Chief Secretary be prohibited from celebrating marriages; and thereupon such minister shall cease to possess the qualification to celebrate marriages.

Governor in Council may appoint registrars of marriages. Marriage Act 1890 ». 7.

18. The Governor in Council may from time to time appoint and remove registrars of marriages.

Every such appointment and removal shall be notified in the Government Gazette and shall take effect from the publication of such notice.

Marriages to be celebrated by ministers only after notice. Marriage Act 1909 «. 2.

DIVISION 2 . — C E L E B R A T I O N OF MARRIAGES.

19. It shall not be lawful for any minister of religion to celebrate any marriage, unless the parties about to be married or one of them have given him written notice of their intended marriage at least three days before the performance of such marriage, but such notice may be dispensed with in cases of emergency by permission being previously obtained from any justice,'"' and every justice is hereby authorized at his discretion to give such permission.

(a) A documen t containing the permission of a just ice, undor th i s section, for t h e celebrat ion of a mar r i age wi thou t t h ree days ' notice being

given is in the n a t u r e of a public document , a n d to m a k e a document falsely purpor t ing t o be such is forgery .—R. v. Elton, 1910 V.L.R. , 1.

Np. 3Q91.] MARRIAGE AJJT 1915. 31.93

2,0. I t shal} not be lawful for the Government Statist or any registrar 4f arriage Act of marriages to celebrate any marriage except between the hours of H**J!

ana eight o'clock in the forenoon and four in the afternoon ; nor unless the notice oi- -parties about to be married have given him written notice of their in- Government tended marriage, and unless such notice has been posted in his office leghtmVot at least three days before the performance of such marriage. marriages.

2 1 . (1) Every marriage celebrated by the Government Statist or where marriages any registrar of marriages shall be celebrated in the office publicly used by Government by him for the performance of his general duties as such Government rt^st™' Statist or registrar, and in no other building or place whatsoever. /&.«. 23.

(2) In such office every marriage shall be celebrated only with open doors, so that any person whatsoever desiring to be present at the celebration of such marriage may have free access thereto.

(3) A copy of the written notice oil an intended marriage required to be posted in the office of the Government Statist or registrar of marriages shall also be posted on the outside of such office at or near the front or principal entrance thereto at least three days before the performance of such marriage.

22 . Every marriage celebrated by the Government Statist or a Form of registrar of marriages shall be in and by the form of words set forth in Government the Second Schedule. Each of the parties to such marriage shall repeat ™£t*a°

r0{

• such of the said words as are appropriate to him or her (as the case may. marriages, be) and shall sign the declaration set forth.in the said Schedule. lsSot^J.^'

Second

2 3 . Every marriage shall be celebrated in presence of two or more Witcneg9°'s to

witnesses of full age, and shall be registered according to law. marriage. Ib. s. 12. See 4 Geo. IV.

24. No marriage shall be celebrated under the provisions of this "• 7f8-28, . i-k r i > i I i M I • I i • i i Declaration oy Part of this Act unless and until the parties about to be married have parties to the made before the minister the Government Statist or the registrar of j ^ " ^ ' marriages officiating at such marriage a declaration upon oath or solemn affirmation in the form set forth in the Third Schedule hereto; Third schedule, and such declaration shall be delivered to and kept by the person officiating at such marriage.(a)

2 5 . Every marriage celebrated by any such minister or by the Essentials for Government Statist or by any such registrar of marriages after oath or ™h* ™ama8e-solemn affirmation so made shall be a legal and valid marriage to all intents and purposes; and no other marriage except as hereinafter provided shall be valid for any purpose.

(a) I t was held under the former Act that was solemnized by a minister of religion, but this section gave an option, and it was not there was no proof of declarations under section necessary to proffer the oath first, and after- 10 of Act No. 268. Held, that the Court must wards, on the parties objecting, the affirmation. presume that all the preliminaries to the marriage —Reg. v. Medcalf, 5 A.J.B., 76. ceremony had been duly performed. Convic-

Y. was convicted of bigamy. At the trial tion affirmed.—Regina v. Young, 5 A.J.R., 19. there was evidence that the second marriage

3194 MARRIAGE ACT 1915. [.6 GEO. V.

cf. MamageAct 26 . (1) Every person celebrating a marriage shall immediately after certtficato of *ê m a r r i a g e enter or cause to be entered upon marriage certificate maniage. forms the several particulars relating to the marriage according to the Fourth respective requirements of Form A, Form B, and Form C of the Fourth

Schedule. In this section the expression "person celebrating a marriage" includes every person empowered by law to celebrate marriages in whose presence the marriage has been solemnized.

(2) The number of the registry of the place of entry so entered upon the said forms shall be the same upon each of the three forms and shall be assigned to them in the numerical order of such register.

(3) When entry has been made as aforesaid upon each of the said three forms each of the forms shall be signed by the person celebrating the marriage and by the parties and the witnesses thereto and when so signed shall be a certificate of the marriage.

(4) The person celebrating the marriage shall— (a) keep the certificate in the said Form A as a record of the

marriage; and (6) deliver the certificate in the said Form B to one of the parties

to the marriage immediately after the marriage ; and (c) transmit the certificate in the said Form C to the Government

Statist as provided by the Registration of Births Deaths and Marriages Act 1915.

(5) Provided that until the first day of January One thousand nine hundred and seventeen any two of the forms set forth in the Fourth Schedule to the Registration of Births Deaths and Marriages Act 1890 may

.- be used instead of the said Form A and Form B, and the form set forth in the Schedule to the Registration of Births Deaths and Marriages Act 1898 or a form to the like effect may be used instead of the said Form C.

In certificate of (6) In every entry register or certificate of marriage the age last ™"toabehow birthday of the bridegroom and bride respectively shall, unless unknown Btatea. , jjy B u c ] 1 bridegroom or bride, be expressly stated in years by the person Marriage A* i. i » . xi. „ • C

1898 *. 29. who celebrates the marriage. Power to 2 7 . (1) Where in the opinion of the Governor in Council it is in-KSrtaSssta expedient and undesirable that marriages should be celebrated in any ^ ^ ' 5 houses particular house or building, it shall be lawful for the Governor in Council

' n. «. 20. by order published in the Government Gazette from time to time to proclaim any such house or building as a house or building in which after a date and within a period specified in such order it shall be unlawful for any minister to celebrate marriages.

Notice. (2) No such order shall be made until after seven days' notice has been given by the Government Statist to the occupier of such house, either personally or by post, or by posting a copy of such notice on the front door of such house or building. Such notice shall specify a place and date at which such occupier may appear before the Minister administering this Act and give any reasons he may desire to urge against the making of an Order in Council as aforesaid in reference to such house or building. The Minister shall have authority to hear receive and examine evidence.on oath, and shall report his opinion to the Governor in Council.

No. 2691.] MARRIAGE ACT 1915. 3195

(3) If, after the making of an Order in Council as aforesaid and Marriage Act within the period during which it was by such order declared to be un- J,8®8' lawful to celebrate marriages in such house or building, any marriage registration ot is celebrated in such house or building, the Government Statist shall celebrating

without further or other authority than this section forthwith cancel rohibtted" the registration of the minister of religion by whom such marriage was bSSdSi . celebrated.

(4) No such order shall be made with regard to any house or building Exception,

ordinarily and bond fide used as a place of public worship.

DIVISION 3 . MARRIAGES NOT TO BE AVOIDED OR AFFECTED FOR CERTAIN

REASONS.

28 . No marriage in fact shall be avoided by reason only of the same celebration by having been celebrated by a person not being a minister of religion or£Snbte?ora

ordinarily officiating minister of religion or the Government Statist or a staMstTor ament

registrar of marriages, if either of the parties to the marriage at the registrar ot time bond fide believed that he was such minister of religion ordinarily Marriage Act officiating minister of religion Government Statist or registrar of1890 *•17' marriages.

29 . No marriage in fact shall be avoided by reason only of the same celebration by having been celebrated by a person whose registration has been cancelled ?e

eglstra«on5nas pursuant to the provisions of section twelve of this Act, if either of the been oan<">Ued. p a r t i e s t o t h e m a r r i a g e a t t h e t i m e bond fide be l i eved t h a t h e w a s qual if ied ISQSTÎS (*>. to celebrate marriages.

30 . No marriage in fact celebrated by any minister, after he has celebration by been prohibited pursuant to the provisions of sections sixteen or jSbftedtrom seventeen of this Act from celebrating marriages, shall be avoided by marriages.8

reason only of such prohibition, if either of the parties to the marriage ib.«. i* (2). at the time bond fide believed that such minister was qualified to celebrate marriages.

3 1 . No marriage in fact celebrated by a minister of religion Marriage

shall be avoided by reason of non-compliance with the provisions of mjnktered by

section nineteen of this Act. without notioe-Marriage Act 1909 ». 3.

32 . No marriage in fact celebrated by the Government Statist or by Marriage any registrar of marriages shall be avoided by reason of non-compliance Government7

with the provisions of section' twenty of this Act. r'egbtrar'o! marriages without

3 3 . No marriage in fact celebrated by the Government Statist or """uthoriled any registrar of marriages shall be avoided by reason of any non-com- J?™^ pliance with the provisions of section twenty-one of this Act. Efiect of

non-compliance with section 21.

34 . No marriage in fact shall be deemed to be invalid]by reason of Marriage Act the same having been celebrated in a house or building after the making J8*8*".f (*)-

~ -. . % .1 , . .1 • • r !• i Celebration in

of an Order in Council pursuant to the provisions ot section twenty-seven prohibited of this Act and within the period during which it was by such order buMing. declared to be unlawful to celebrate marriages in such house or building. n>- »• 20 (3)

3196 MARRIAGE AC? 1915. [6 GEO. V.

Marriage Act 3 5 . No marriage shall be deemed to have been unduly celebrated 1890«. 17. , reason of any mere delect or error in the declaration made respecting Defect or ei ror / • ' , . , ' . . , . j_-in declaration, the same where the identity of the parties to the marriage, is not in question. Defect in appointment of consenting guardian of minors.

lb. i. 17.

Consent in case of minority. lb. 8.14. Cf. 4 Geo. IV. c. 76 s. 16.

Marriage of minor with consent of mother in certain circumstances. Marriage Act 189S «. 25.

36 . No marriage shall be deemed to have been unduly celebrated by reason of any informality or irregularity in the appointment of the justice consenting provided the said appointment has been notified in the Government Gazette pursuant to the provisions of section thirty-eight of this Act.

DIVISION 4.—MINORS.

37. (1) If either party to any intended marriage not being a widower or a widow(a> is under the age of twenty-one years such marriage shall not take place unless and until there is produced to the person about to celebrate the same the written consent^—

(a) of the father of such party if the father is in Victoria; or (b) of a guardian appointed by the father, if the father is not in

Victoria; or (c) of the mother of such party, if the mother is in Victoria and

if neither the father nor any such guardian is in Victoria ; or (d) if there is no such parent or guardian in Victoria or if he or

she is incapable of duly consenting by reason of absence mental incapacity or other substantial cause, then the written consent of a guardian of minors. Such guardian of minors shall before giving his consent make inquiry on oath or solemn affirmation as to the facts and circumstances of the case.

(2) Notwithstanding anything in this section contained— (e) where either party to any intended marriage is under the age of

twenty-one years, and is or has been living with and under the care and control of the mother of such party, such mother having been unlawfully deserted by her husband, or there having been pronounced a decree for the judicial separation nullity of marriage or dissolution of marriage of such mother and her husband, then in such case the marriage of such first-mentioned party may take place with the written consent of the mother of such party 01 after the death of the mother in any such circumstances with the written consent of a guardian of minors who before giving his consent shall make inquiry as aforesaid; and

(a) As to divorced persons, see section 135. (6) The marriage of a minor, without the con

sent required by this section, is valid.—Reg. v. Griffin, 3 vX.Jt. (L.), 278.

Semble, the marriage of a minor without the required consent, and on a false declaration as to consent, is valid.—Gullifer v. Qvltifer and Foley, 6 V.L.R. (LP. & M.), 109.

On a trial for bigamy counsel for prisoner proposed to adduce evidence to show that prisoner bond fide jjejieved that her first marriage

(she then being a minor) was invalid, on the ground that the consent to her first marriage required by this section was a forgery. The judge refused to allow the evidenco, and refused to state a case for the Full Court on tho point. On an application for a rule nisi to compel him to do so : Held, that the evidenco was inadmissible, because, even if the prisoner bond fide believed that the consent was a forgery, the first marriage would not be invalid.—Regina v. Adams, 18 V.L.E., 566.

No. 2691.] MARRIAGE ACT 1915. 3197

(/) where either party to an intended marriage is a ward of t.he Marriage Act

Department for Neglected Children, or qf the Depart-1898,

meht for Reformatory Schools, the marrjage of such party may take place with, the written consent of the secretary of the Department for Neglected Chi'dren or Reformatory Schools (as the case may be).

38 . (1) .The Chief Justice or in his absence any judge of the Supreme Guardians of Court may from time to time appoint for such part or parts of Victoria ™ar°&L Aa

as he thinks fit some justice or justices to be a guardian or guardians 1890 »•15-'' of m i n o r s .

(2) Every such appointment shall be notified in the Government Gazette by the Prothonotary.

(3) The ChieE Justice or in his absence the senior puisne judge of the Marriage Act Supreme0 Court may cancel any such appointment.

(4 Every such cancellation shall be notified in the Government Gazette by the Prothonotary, and thereupon such justice shall no longer be authorized to act as a guardian of minors.

39. Every police magistrate shall without further or other appoint- Police ment than this Act and whilst holding the office of police magistrate bTguardiam0

be a guardian of minors in and for Victoria. of m,nOTS-° lb. s. 26.

40 . Every consent to the marriage of any person who is under the Form of consent age of twenty-one years shall be in such form as may be prescribed minors"age °' in rules and regulations made pursuant to this Part or to the like n>- «• 28. effect.

4 1 . When any marriage is celebrated upon the production of any consent to be such written consent as aforesaid, a statement of the fact of such consent ceftiticate?" with the name of the parent or guardian or guardian of minors so con- Marriage Act senting shall be indorsed on the three certificates of such marriage signed by the person celebrating such marriage.

DIVISION 5 . — M A R R I A G E WITH DECEASED W I F E ' S SISTER."

42 . No marriage between any man and the sister of his deceased Marriage

wife shall within Victoria be voidable or in anywise impeachable upon and'th"sute"f the ground only of such affinity between the parties thereto, any law not°?oMabief usage or custom to the contrary notwithstanding. n.,. is.

DIVISION 6 . — Q U A K E R S AND J E W S .

4 3 . (1) Except as by this section and by sections fourteen and fifty- Marriages of

eight provided nothing in this Part shall extend to any marriage in the jeUws.ers an

religious Society of Friends commonly called Quakers, or to any marriage Marriage Act 0 1 J eWS. _ Marriage Act

(2) Every such marriage shall be as legal and valid as if duly 1909 *•5-solemnized under the provisions of this Part of this Act, if such marriage was when celebrated a valid marriage according to the usages of the Quakers or the Jews, as the case may be.

(3) A certificate of every such marriage shall within three months Marriage Act next following be transmitted to the Government Statist by the person


Marriage Act 1890.

celebrating or witnessing the marriage or by one of the parties thereto, stating the date and place of such marriage and the name designation and usual residence of each of the parties, and complying with the provisions of sub-section six of section twenty-six of this Act, stating the age of each of the parties.

DIVISION 7.—RULES.

Governor in 44 . The Governor in Council may from time to time make and alter m0ake°ruie8.y and. repeal rules and regulations for more effectually carrying out the /i>.«. 7. provisions of this Part.

False statement on oath or affirmation. lb s. 30.

Punishment for misdemeanours. Marriage Act 1898 «. 21.

Persons wrongfully obtaining ° registration as ministers. lb. ». 22.

Unregistered -minister celebrating marriage. lb. s. 17.

Pretended registrar of marriages celebrating marriage. lb. ». 17.

Celebration of marriage by minister after he lias ceased to be qualified. Marriage Act 1890 ». £2.

DIVISION 8.—OFFENCES.

4 5 . Any person who wilfully makes any false statement on oath or by solemn affirmation before any minister of religion or the Government Statist or any registrar of marriages or any guardian of minors or before any person intending or purporting so to be shall be deemed to be guilty of wilful and corrupt perjury and be liable to prosecution and punishment accordingly.

46 . Every person guilty of a misdemeanour within the meaning of this Part shall at the discretion of the court before which he is convicted be liable to—

(a) a penalty of not more than Five hundred pounds ; or (b) imprisonment with or without hard labour for a term of not

more than five years ; or (c) both such penalty and imprisonment.

47 . If on the ground that he is a minister of religion ordinarily officiating as such any person causes his name to be registered as a

„ minister of religion who may celebrate marriages he knowing at the time that he is not a minister of religion ordinarily officiating as such, he shall be guilty of a misdemeanour.

48.- Any minister of religion or person officiating as such, who celebrates any marriage he then not being registered as a minister of religion who may celebrate marriages, shall be liable on summary conviction to a penalty of not more than Twenty pounds ; and any such minister or person, who celebrates any marriage knowing that he is not then registered as a minister of religion who may celebrate marriages, shall be guilty of a misdemeanour.

4 9 . Any person, who celebrates a marriage purporting to act as a registrar of marriages he then not being qualified so to act, shall be liable on summary conviction to a penalty of not more than Twenty pounds ; and any person who celebrates a marriage under the false pretence that he is a registrar of marriages shall be guilty of a misdemeanour.

50 . If any minister of religion who has been duly qualified under this Part of this Act ceases to possess such qualification, and, after he has so ceased, performs contrary to the provisions of this Part any marriage ceremony, he shall be guilty of a misdemeanour.

No. 2691.] MARRIAGE ACT 1915. 3199

5 1 . If, after the making of an Order in Council pursuant to the Marriage Act

provisions of section twenty-seven of this Act and within the period i8?8s\20 (3>' i • - I ' - I ' T - i - i - i - i T i - i r i - I T Celebration of

during which it was by such order declared to be unlawful to celebrate marriage in marriages in the house or building in such order mentioned, any house or" marriage is celebrated in such house or building, the minister celebrating buildmg-such marriage shall be guilty of a misdemeanour.

52 . Every person who knowingly celebrates any marriage in contra- Marriages

vention of section nineteen or of section twenty of this Act shall be withorutenotioe liable to a penalty of not more than Twenty pounds, and may be unauth01.i2ed

suspended by the Chief Secretary from celebrating marriages for any hours-term not exceeding twelve months. 1909^3/°'

5 3 . If the Government Statist or any registrar of marriages neglects Not posting

delays or refuses to post in his office pursuant to the provisions of section Carriage, twenty of this Act any notice of marriage given to him as by that Marriage Act section directed he shall be guilty of a misdemeanour.

54 . Every person who knowingly celebrates any marriage in contra- Marriages vention of section twenty-one of this Act shall be liable to a penalty Government* of not more than Twenty pounds. or e'gitrar of

marriages 5 6 - I f a n y m i n i s t e r o r t h e G o v e r n m e n t S t a t i s t o r a n y r e g i s t r a r o f contrary_to

marriages celebrates or professes or attempts to celebrate marriage in Marriage let the case of any person (not being a widower or widow<a>) under the age 1898 '• 23 (4)-of twenty-one years without some such written consent as aforesaid unlawful0' knowing him or her to be under that age or knowing that the consent celebration of produced is not by the appropriate person, or wilfully celebrates or pro- Marriage Act fesses or attempts to celebrate any marriage in any other case contrary 1890 *• 23-to any of the provisions of this Part of this Act or, where any provision of such Part has not been complied with, knowing the same not to have been complied with, every person so offending shall except as is . otherwise by this Act provided be guilty of a misdemeanour.

56 . If any person marries a person (not being a widower or penalty for widow(a)) under the age of twenty-one years without having previously J^ym"^ obtained the appropriate written consent as aforesaid, or induces or minor-endeavours to induce any minister or the Government Statist or any Ib 's '24 ' registrar of marriages to celebrate marriage between parties one of whom (not being a widower or widow) is under age, without such consent, or abets or assists iii any illegal marriage, every person so offending shall except as is otherwise by this Act provided be guilty of a misdemeanour.

57 . If any person having cel.ebrated any marriage fails to comply Penalty on per-

with any provision of this Part respecting the certificate of such m"rr?agerfctr''g

marriage to be transmitted to the Government Statist, he shall be °" f ™t0

liable to a penalty of not less than Ten nor more than Fifty pounds. certificate of -1- x marriage.

58 . In the case of any marriage in the religious Society of'6'8'28' Friends commonly called Quakers or of any marriage of Jews, if the sion to transmit

certificate of such marriage is not transmitted to the Government marriageofnjew Statist as by this Act required, the husband shall be liable to a penalty and of Quakers. of not less than Ten nor more than Fifty pounds. n's'29'

L (a) As t o divorced persons , see section 135.


Custody of Infanta Act 1912 «. 2.

PART II.—GUARDIANSHIP AND CUSTODY OF INFANTS.(°>

59. In the construction of this Part— "Cour t " means the Supreme Court or a judge thereof.

nterpretation. And in the construction of sections seventy-six, seventy-seven, seventy-"court- eight, and seventy-nine of this Act— "Parent." "Pa ren t " when used with reference to a child, includes any

person liable to maintain such child or entitled to its custody; and

" Person. "Person" includes any school or institution.

60 . On the death of the. father of an infant and in ense the father has died before the thirty-first day of December One thousand nine hundred and twelve then from and after that date the mother if surviving shall be the guardian of such infant either alone when no guardian lias been appointed by the father or jointly with any guardian appointed by the father. If the guardian or guardians appointed by the father is or are dead or refuses or refuse to act the Court may, if it thinks fit, from time time appoint a guardian or guardians to act jointly with the mother.

On the death of the father, the mother to be guardian solely or jointly &c. lb. s. 3.

Mother may appoint guardian in certain cases. lb. s. 4. See 49 & 50 Vict, ch.27 s. 3.

6 1 . (1) The mother of any infant may by deed or will appoint any person or persons to be guardian or guardians of such infant after the death of herself and the father of such infant (if such infant is then unmarried), and where guardians are appointed by botli parents they shall act jointly.

(2) The mother of any infant may by deed or will provisionally nominate some fit person or persons to act as guardian or guardians of such infant after her death jointly with the father of such infant; and after her death if it is shown to the satisfaction of the Court that the father is for any reason unfitted to be the sole guardian of his children, the Court may confirm the appointment of such guardian or guardians,

(a) A father has, by common law, a right to the custody of his infant child, and may take it oven from the mother's breast, but tho Marriage Act has amended that law by giving to the Supreme Court a discretion to give such custody to the mother, which will be exercised upon a consideration of whether or not it is for the benefit of the child. The Supreme Court will not take from its mother a delicate child of three years of age, and give it to the father on habeas corpus, where it considers his object is not to gain possession of tho child, but by invoking the power of the Court with regard to the child to force the mother to return to and live with him.—In re Holmes, 21 V.L.E., 358.

On a question of who should have tho custody of a child the dominant matter is the welfare of the child.

A husband and wife had lived apart for over a year, and tho only child of tho marriage, a girl of three years of age, had always lived with her mother. There was no evidence to show that the mother was not a fit person to have the custody of the child. On a writ of habeas corpus issued by the father to obtain from his wife the custody of the child :

Held, that it was for the welfare of the child that she should remain with her mother.

Goldsmith v. Sands (4 C.L.R., 1648) applied.— Moule v. Moule, 13 C.L.R., 207.

Where illegitimate infants were removed from the custody of a person to whom they had been committed by their mother at her death :

Held, that a person claiming to bo the father of such infants had no locus standi to demand that they should be given up to him, they not having been taken out of his custody.

Also, that, even if his paternity had been proved by corroborated testimony of tho mother during her life-time, ho would not have had any such right.—In re Bates, 1 V.L.E. (L.), 178.

See section 74. Held, after interviewing tho child, that,

having regard to the ago of the child, to (ho friendhip and affection she had formed for her cousins, to her temporal welfaro and secular education, and to tho facts that if handed over to her mother she would have to live amongst strangers and persons of a religion different from her own, and would bo outside tho jurisdiction and control of the Court, tho writ should bo discharged.

The sufficiency of a return to a writ of habeas corpus discussed.—In re McDonald, 26 V.L.R., 332.

tfo. 2691.] MARRIAGE ACT 1915. 32U1

who shall thereupon be authorized and empowered so to act as afore- Custody of , , ,

said, or it may make such other order in respect of the guardianship as In/antsAcn912-it thinks right.

(3) In the event of guardians being unable to agree upon a question affecting the welfare of an infant, any of them may apply to the Conrt for its direction, and the Court may make such order or orders regarding the matters in difference and as to costs as it thinks proper.

62. The mother of an illegitimate infant shall have power to Mother of appoint a guardian or guardians of such infant in the same manner and - JS ' ""^ with the same rights and powers and as fully as by law the mother of a appoint legitimate infant whose father has died without appointing a guardian ârria"eAct now has. i89o«. 36.

6 3 . Subject to the provisions of this Part, every guardian powers and appointed under or by virtue of this Part shall have all the powers and 'r'dian. rights which a guardian appointed by a father by will or deed has. .custody of

Infants Act

64. The Court in its discretion shall, on being satisfied that it is 19i2s-6-for the welfare of the infant, remove from his office any testamentary ^ 0 ™ ° ' " " ' guardian or any guardian appointed or acting by virtue of this Part, »uardian-and may also if it deems it to be for the welfare of the infant appoint Ib ' s 7'

, , J 1 • • 1 j? i.i j • j See 49 & 50 Vict.

another guardian in place of the guardian so removed. Ch.z7s. e. 6 5 . Nothing in this Part shall restrict or affect the jurisdiction of saving,

the Court to appoint or remove guardians. , n . >. o. Ib . 8. 13.

66. Any appointment of a guardian or guardians made before the Appointments

thirty-first day of December One thousand nine hundred and twelve ^"tyXthe0" under section forty of the Marriage Act 1890 shall not be affected by uamageAtt the repeal of that section by the Custody of Infants Act 1912. custody of

Infants Act 1912

67. Where a father has died without having by deed or will left «• i? (indirections regarding the religious faith of his infant child, it shall be S T ™ after lawful for the mother, if she is the only guardian of such infant and deatn of fatner-if such infant has not in the life-time of the father formed distinctive Iwos^zdf01

religious opinions, to bring up such infant in her own religious faith, and by deed or will to leave directions regarding the religious faith of such infant after her own decease.

68 . (1) Upon hearing the application by the next friend of any infant;s infant alleging cruelty ill-treatment or gross abuse of parental mntr

eeiteme0nt. authority towards such infant by the father mother or guardian thereof /*•«. 37 the Court may order—

(a) That such infant shall be freed from the custody and control of such father mother or guardian (as the case may be) :

(b) That the custody or control of such infant shall be given to some suitable person to act as the guardian either of the person or estate or of both the person and the estate of such infant:

(c) That the father mother or guardian shall pay to the guardian appointed under this section such weekly sum for the maintenance and education of such infant as the Court having regard to the means of the father or mother or the property in the guardian's hand legally available for such purpose may think fit.

3202 MAURI4GE ACT 1915. [6 GEO. V.

Marriage Act 1890.

Court may make orders as to custody. Custody of Infants Act 1912 ». 6. See 40 & 50 Vict, c 27 s. 5.

Such order may aleo provide for infant's maintenance. Marriage Act 1890 ». 32.

(2) Such order for payment may at any time be varied by the Court on the application of a next friend of such infant or of the father mother or guardian of such infant or of the guardian appointed under this section.

(3) On application to the Court by summons to show cause why such order for payment should not be enforced, such order shall as the Court may direct be enforceable against such father mother or guardian by process of attachment or by process of execution whether legal or equitable in respect of such property as the Court specifies.

69 . The Court may upon the application of the mother of any infant (who may apply without a next friend) make such order as it thinks fit regarding the custody or control of such infant and the right of access thereto of either parent having regard to the welfare of the infant and to the conduct of the parents and to the wishes us well of the mother as of the father and may alter vary or discharge such order on the application of either parent or after the death of either parent on the application of any guardian under this Part and in every case may make such order respecting the costs of the mother and the liability of the father for such costs or otherwise as to costs as it thinks just.

70. (1) When making any order in favour of the mother for the custody or control of any infant the Court may further provide in such order—

That the father or guardian shall pay to the mother for the maintenance and education of such infant such weekly sum as the Court thinks fit having regard to the means of the father or the property in the guardian's hands legally available for such purpose respectively and to the means that the wife may have for her support.

(2) Such order may at any time be varied by the Court on the application of a next friend of such infant or of the father mother or guardian of such infant.

(3) On application to the Court by summons to show cause why such order should not be enforced, such order shall as the Court may direct be enforceable against such father or guardian by process of attachment or by process of execution whether legal or equitable in respect of such property as the Court specifies.

7 1 . Any such order as aforesaid may be discharged by the Court upon application by the father or guardian of such infant upon proof that the mother has since the making thereof been guilty of adultery habitual intemperance or any misconduct which in the opinion of the Court disentitles her to continue to have the custody or coutrol of such infant.

The powers and authorities granted to the Court by this and the two last preceding sections may also be exercised by the Court upon the return to any writ of habeas corpus in regard to the custody of any legitimate infant.

Guardianship in 72. In any case where a decree of judicial separation or a or7u$raai°roe decree nisi or a decree absolute for dissolution of marriage is pro-separation. nouueed, the Court pronouncing such decree may by the same or any infant's Act 1912 subsequent order declare the parent, by reason of whose misconduct I. 8.

Grounds on which order for custody and maintenance of infant may be discharged. lb. 8. 33.

No. 2691.] MARRIAGE ACT 1915. • 3203

such decree is made, to be a person unfit to have the custody of the custody oj children (if any) of the marriage; and in such case the parent so Intanis â^2-declared to be unfit shall not upon the death of the other parent be entitled as of right to the custody or guardianship of such children.

7 3 . No agreement contained in any separation deed made between Custody of

the father and mother of an infant shall be held to be invalid by reason sepSSnndeeed. only of its providing that the father of such infant shall give up the Marriage Act custody or control thereof to the mother. Provided that no court shall See *Q& 60

enforce any such agreement if such court is of opinion that it will not be vict. o. 27 s. 2. for the benefit of the infant to give effect thereto.

74. The mother of an illegitimate infant shall with or without Maintenance assistance from the putative father maintain such infant and shall illegitimate

have the custody thereof until such child attains the age of sixteen f^f^ years ;(0) but the Court, if it is of opinion that it is for the infant's benefit .so to do, may refuse to restore such infant to the custody of such mother or may remove it therefrom or may make such order as to the custody or control of such infant or as to access -thereto as it thinks fit.

75- No father shall have any right to the wages or earnings of Earnings of any infant child while such child is in the control and custody of the c

n^'ss mother thereof.

76 . Where the parent of a child applies to the Court for a writ or Power of court order for the production of the child and the Court is of opinion that ol chiki0

the parent has abandoned or deserted the child or that he has other- custody oj wise so conducted himself that the Court should refuse to enforce his «. 10. right to the custody of the child, the Court may in its discretion decline Biviot.oh. 3s.1. to issue the writ or make the order.

7 7 . If at the time of the application for a writ or order for the Power to court production of the child the child is being brought up by another payment of costs person, the Court may in its discretion, if it orders the child to be given chiid'.nff'nt' "P

up to the parent, further order that the parent shall pay to such person ib.«. 11. the whole of the costs charges and expenses properly incurred -in n>- s. 2. bringing up the child or such portion thereof as seems to the Court to be just and reasonable having regard to all the circumstances of the case.

78 . Where a parent has— ™oTave ing

(a) abandoned or deserted his child ; or condua" (b) allowed his child to be brought up by another person at parent

that person's expense for such length of time and in Ib- '•12-such circumstances as to satisfy the Court that the parent was unmindful of his parental duties,

the Court shall not make an order for the delivery of the child to the parent unless the parent has satisfied the Court that having regard to the welfare of the child he is a fit person to have the custody of the child.

(a) Where the mother of an illegitimate child marriage, she does not thereby lose her primd marries a man other than the child's father, facie right to the custody of the child.—In the and there is a strong probability of issue of the matter of Billows, 26 V.L.K., 390.

3^04 MARRIAGE ACT 1915. [6 GEO. V.

Saving. lb. a. 14.

custody 6/ 79. Upon any application by the parent for the production or «!i3? " custody of a child, if the Court is of opinion that the parent ought not L°toechikrsUrt *° *aave * a e c u s t 0 ( ty ° f t n e child and that the child is being brought up religious iu a different religion to that in which the parent lias a legal riglit to Mv t'ch 3 s 4 r e c l m i ' e t n a t fche c u i ld should be brought up, the Court shall have power

' to make such order as it thinks fit to secure that the child be brought up in the religion in which the parent has a legal right to require that the child should be brought up.

80 . Nothing in this Part contained shall interfere with or affect the 'power of the Court to consult the wishes of the child in considering what order ought to be made, or diminish the right which any child now possesses to the exercise of its own free choice.'")

8 1 . All proceedings in the Court relating to the custody control or religious faith of any child or to any matter or thing authorized or permitted under any of the preceding sectious of this Part shall, unless, the Court or a judge thereof otherwise orders be heard and determined by a judge sitting in chambers, and except in the case of ex parte

!)roceedings, be by summons ; and such judge when so sitting shall lave and exercise the same powers and jurisdiction and be subject to

the same right of appeal in respect of the business to be brought before him as if sitting in open court.

Proceedings relating to custody or religion of infants &c. to be heard in chambers. Marriage Act 1890 ». 41. Custody of Infanta Act 1912 s. 15. Powers of judge in chambers

Rules. lb. s. 10.

82. (1) Rules for regulating the practice and procedure in any proceedings under this Part and the forms in use iu proceedings may from time to time be made altered or repealed by Rules of Court made by the authority having power to make Rules for the Court.

Practice in (2) The Rules of law and practice of the Court relating to pro-foâfauperis. ceedings in forma pauperis shall with the necessary modifications ib. ».16. apply to proceedings in the Court relating to the custody control or

religions faith of any infant or to any matter or thing authorized or permitted under this Part.

Justice may issue summons or warrant in case of deserted or destitute wives and children. Marriage Act 1890 s. 42.

PART III.—MAINTENANCE OF DESTITUTE OR DESERTED WIVES AND CHILDREN.

8 3 . In any case where— (a) any husband has unlawfully deserted his wife(6) or left her

w i t h o u t m e a n s o f s u p p o r t ; o r

(a) I n a ma t r imonia l su i t i t was said t h a t t h e Court would no t refuse to pe rmi t a fa ther t o see his child unde r fifteen years of age mere ly because the child did n o t wish t o see t h e fa ther .— Stephen v. Stephen, 14 A.L.T. , 24.

(6) This section refers only t o t h e case of a husband unlawfully leaving his wife, wi thout he r consent, wi thout means of s u p p o r t ; and a separat ion deed executed between the par t ies , whe reby t h e wife covenants , for good considerat ion, to live a p a r t from her husband, and no t to bring a n y subsequent proceedings against him for main tenance is, therefore, in t h e absence, a t al l even t s , of proof of duress or f raud on t h e p a r t of the husband in relat ion t o the execution of the deed, a ba r t o a n y such proceedings by her . —Christie v. Christie, 25 V.L.U., 97.

A wife obta ined a main tenance order from a cour t of p e t t y sessions in 1892. I n 1898, in consideration of a sum of money then paid by the husband t o the wife, the wife executed a deed releasing the husband from all fu ture p a y m e n t s under tho main tenance order . I n a proceeding against the husband for disobedience of tho maintenance order the deed of releaso was p u t in as an answer to the complaint , and t h e just ices dismissed t h e complaint .

Held, t h a t the justices were r ight , and t h a t tho deed of release was a good defence.— Qraham v. Graham, 25 V.L.R., 101 ; a n d soo Dawhins v . Dawkins, 8 A .L .E . , (C.N.), 49 .

Where a husband and wife havo by deed covenanted t o live a p a r t on the t e r m s t h a t the husband will p a y t o the wife a cer ta in sum per

No. 2691.] MARRIAGE ACT 1915. 3205

(b) any father has deserted his children10) whether illegitimate Marriage Act

or born in wedlock, or left them without adequate means 1890' of support,

week, such deed of separation is no answer to a summons under tbis section against the husband for leaving the wife without means of support if the husband has broken the covenant in the deed by not paying the allowance.—Usher v. Usher, 27 V.L.R., 163 ; and see Dawkins v. Daw-kins, 8 A.L.R. (C.N.), 49.

Where a wife, who has reasonably left the matrimonial home owing to the violence and threats of her husband, is without means of support, and refuses to return because of a well-founded apprehension of injury from his renewed violence, a bond fide offer by the husband of a home is no answer to proceedings by the wife for maintenance under sections 83 and 84.

Mackenzie v. Mackenzie (1872, 3 V.R. (L.), 248) and Trengrove v. Trengrove (1879, 5 V.L.R. (L.), 27) not followed.

Drake v. Drake (1896, 22 V.L.R., 391) approved.—Hallihan v. Hallihan, 1913 V.L.R., 443.

A wife who, of her own accord and without justification, leaves her husband and lives apart from him, cannot afterwards summon him for leaving her without means of support, unless she has, since leaving him, made a sincere and bond fide offer to return to him or otherwise put an end to tho position thus created by her.

Dicta of Griffith, C.J., in Chanller v. Chanller (1906, 4 C.L.R., 585, at pages 591, 592) discussed and applied. — Male v. Male, 1912 V.L.R., 455.

For the purposes of the Justices Act the subjoct-matter of a wife's complaint against her husband for leaving her without means of support arises prima facie at the place where the husband rosides, and the complaint should primd facie bo dealt with at the court nearest of access thereto.—Wilkinson v. Wilkinson, 8 A.L.R., 43, 27 V.L.R., 651.

For the purposes of the Justices Act the subject-matter of complaints, by wife and child respectively, for maintenance arises at the place at which the husband last resided with his wife, before leaving her, and at which he has left tho child.—Roberts v. Roberts, 9 A.L.R., 154.

Where a wife has been compelled by her husband's conduct to leave their home and live elsewhere, and ho does not provide her with maintenance there, and she is in fact without means of support, he " leaves her without means of support " within tho meaning of this section ; and if a complaint is made by tho wife before justices in the bailiwick in which she is living, such justices have jurisdiction to make an order against the husband, under section 84, for her maintenance.

Tho meaning of the terms " desert" and " leave without means of support " discussed.

Reqina v. Collins, ex parte Collins (1881), 7 V.L.R. (L.), 74. followed.

Chanller v. Chanller (1906, 4 C.L.R., 585) discussed.— Ross v. Ross, 1909 V.L.R., 318.

(a) In complaints in respect of a child under this Part, the child and the father are the real parties; so where two maintenance orders were obtained against the father by the child's mother and a third was afterwards obtained against him by the fathor of the mother (she being then dead, though that fact was not in evidence before the justices) the parties are the same, and the two former orders can be adducod as res judicata at the application for the third.—Hanley v. McMasters, 15 V.L.R., 322.

Compare Baxter v. Baxter, 1914 V.L.R., 444, where, as the parties were not the same, an order against an alleged father under Part IV. for confinement expenses was held not to bo an estoppel in maintenance proceedings on behalf of tho child.

I t was held upon a complaint against a father for leaving his child without adequate means of support, the father having offered to receive the child and support it himself, that in the circumstances the justices had no power to make an order against him.—McFarland v. McFarland, 1 V.L.R. (L.), 303.

A wife having obtained a decree absolute for a divorce from her husband had granted to her the custody of the children of the marriage, but no order for their maintenance had been made in the suit acainst the husband. Held, that justices had jurisdiction to make an order under this section.'—Livingstone v. Livingstone, 23 V.L.R., 291.

An order for the maintenance of an illegitimate child, made by a court of petty sessions against the alleged father, was quashed by the court of general sessions. The child was subsequently made a ward of the Department for Neglected Children. On an information on behalf of the department, an order was made under the Neglected Children's Act against the alleged father, as being the " parent " of the child, for the payment of a weekly sum for tho child's maintenance : Held, that the justices had jurisdiction to make the last-mentioned order. The fact that a man, alleged to be the father of an illegitimate child, has written to the mother in such terms as are construed to be a recognition of the child as his, and has sent her a sum of money, are evidence upon which justices may find that he is a putative father, who has recognised the child, and therefore a parent within the meaning of the Neglected Children's Act, —Busivell v. While, 24 V.L.R., 486.

A summons issued by a justice of the peace under this section was held to be a writ of summons within the meaning of section 3 of the Commonwealth Service and Execution of Process Act 1901 (No. 11); but not to be a "wri t of summons issued out of a cour t" and therefore could not be served in another State under section 4 of that Act.—Buckingham v. Weatherup, 29 V.L.R., 381. See, however, the Service and Execution of Process Act 1912 (No. 18), section 6.

VOL. I T . — P


Marriage Act any justice may upon complaint thereof on oath being made by such 189 ' wife or by the mother of such children, or by any reputable person on

behalf of such wife, mother, or children, issue his summons to such husband or father to show cause why he should not support such wife or children, or, upon proof by oath of the fact of such desertion, may issue his warrant for the apprehension of such husband or father.

order of 84 . At the hearing of such complaint, whether the defendant is may be made, then present or not, any two justices present shall inquire into the matter ib.«. 43. of the complaint; and if they are satisfied that the wife or the children

(as the case may be) are in fact without means of support and that the husband or the father is able to maintain her or them or to contribute to her or their maintenance, such justices—

(a) shall make an ortler(a) in writing directing him to pay either weekly or monthly at their discretion and to such

(a) An order against the father of an illegitimate child for its maintenance is persona], and cannot be enforced against his executors in respect of arrears of maintenance money unpaid at the father's death.—Henry v. Harper, 29 V.L.R., 667; and see R. v. Start, 5 W.W. & a'B. (L.), 174.

An order of justices under this section for maintenance which does not state that the husband deserted his wife, but states that she left him for good cause, is a good order, and shows sufficient grounds for awarding maintenance.—Moncrieff v. Moncrieff, 5 A.L.T., 192.

I t was held that an order for maintenance of an illegitimate child was sufficient if it followed tho general form of order given by a former Act. I t was not objectionable in omitting to make its duration contingent upon the lifo of tho child. But it would be bad if it included the costs in the amount for which surety was required, or if it ordered the costs to be paid to the mothor when another person was complainant. —Beg. v. Bindon, ex parte Fitzpatrick, 3 V.L.R. (L.), 3.

In a complaint beforo justices by a wife for maintenance, tho justices are bound to receive evidence of adultery by the complainant, and if satisfied that the complainant has committed adultery, they ought not to mako an order against the husband; and it is not necessary for tho husband to institute divorce proceedings in order that he may be relieved from the obligation of maintaining a wife who has been guilty of adultery.—Gardiner v. Gardiner, 15 A.L.T., 71. Gf. Carnaby v. Carnaby, 1 W. & W. (I.E. & M.), 195.

An order of justices for the maintenance of children should recite that the children are without means of support, and that the father is able to maintain them or to contribute to their maintenance.—Moran v. Gonnors, 1 V.R. (L.), 105.

Upon making an order for the maintenance of a wife under this section, if authority to seize the goods of a deserting husband under tho next succeeding section be also sought, it must be given by the order awarding maintenance;

a subsequent separate order for such purposo is bad.—Mitchell v. Wentworth, 1 V.L.R. (L.), 258.

Upon a complaint by a wife against her husband that ho has left her without means of support, if at the hearing he makes an offer to take her back to his home, which offer is not then refused by the wife, it is a question of fact for tho justices to determino upon the ovidenco whether such offer is bond fide.—Jolly v. Jolly, 5 V.L.R. (L.), 145.

To sustain proceedings against a husband for maintenance, desertion is not a necessary element. Tho conditions of jurisdiction are proof of marriage, of tho wifo being without moans of support, and of the ability of tho husband to maintain or contribute to tho maintenance of his wifo. An offer which tho justices boliovo to have been made bond fide by the husband to tako back his wife, or by the wife to return to tho husband, which ho accepts, deprives tho bench of jurisdiction to mako an'ordor for maintenance, as the wife is not then without means of support. Where a wifo has for a considerable timo, and without rcmonstranco on her part, been living apart from her husband, the presumption is that she is not without means of support. Semble, where thoro has been desertion in ono colony, and the wife follows her husband to another to tako proceedings against him for maintenance, slight evidence would bo sufficient to warrant tho justices in finding that her desertion continued.— Beg. v. Collins, ex parte Collins, 7 V.L.R. (L.), 74.

Where a complaint for maintenance has been dismissed for want of corroborativo evidence, a fresh complaint may bo entertained when such evidence is procured.—Beg. v. McCormick, ex parte Brcnnan, 4 V.L.R. (L.), 36.

In making an order upon a husband for maintenance of his wife, justices havo no powor to fix a definito period during which such maintenance is to be paid. Semble, that an orror in tho minute of the order as to tho name of tho complainant may bo eorreeted by tho justices in drawing up the formal order, also that an omission to name the person to whom tho costs awarded are to be paid does not invalidate such

No. 2691.] MARRIAGE ACT 1915. 3207

person(ff) or in such, manner for her or their use as such Marriage Act justices think fit such moderate sum or allowance as they consider proper; and

(b) may in and by the same or a separate order(6) require the defendant to find such good and sufficient surety(c) as they think fit that he will comply with such order of maintenance or that he will not desert or leave his wife or children without adequate means of support; and

(c) may in default of such surety being found commit'"9 the defendant to gaol unt:l such, surety is found or commit the Marriage Act defendant to gaol with or without hard labour for a 1901"'2 ' term of not more than twelve months ; but the defendant on finding at any time good and sufficient surety as

an ordor.—Reg. v. Smith, ex parte Smith, 9 V.L.R. (L.), 112.

Whcro a person on being charged with being the father of a child denied his paternity, and stated facts to show that another person was the father, that person may be called as a witness, not only to deny the allegation, but also to show that tho defendant had made statements which at tho time he knew to bo untrue.

When on a summons for the maintenance of an illegitimate child tho complainant has to rely on admissions made by the defendant, though such admissions also contain a complete denial of paternity, the court may disregard the denial, and givo effect to such admissions.

An order can be made under this section without the evidenco of the mother.—Moore v. Mahony, 27 V.L.R., 100.

Resumption of cohabitation renders a maintenance order in favour of the wife ineffective, and tho husband's subsequent desertion does not revivo tho order. The remedy of the wife, under such circumstances, is to obtain a fresh order under this section.—Roberts v. Roberts, 29 V.L.R., 158.

On a complaint against a father for leaving his illegitimate child without adequato means of support, tho child being in the custody of the mother, the father made a bond fide offer to provido a home for tho child.

Held, that such offer was no answer to the complaint, and that an ordor ought to be mado against tho father.

On the hearing of a complaint laid under section 83, if it be proved (1) that the wife or children (as the case may be) are in fact without means of support, and (2) that tho husband or father is able to contribute to her or their maintenance, tho justices must mako an order against him.— Russ v. Carr, 1909 V.L.R., 78.

An order made against a father, under this section, is not extinguished by the fact that the child subsequently lives with the father and is maintained by him.—Lobley v. Lobley, 1909 V.L.R., 383.

An order may be mado under this section after decree absoluto for divorce; no order for maintenance having been made in the suit.—

Livingstone v. Livingstone, 23 V.L.R., 291. An action will not lie for tho recovery of arrears

of maintenance due under an order made under this section.—Falconer v. Falconer, 1910 V.L.R., 489.

(a) An order made under this section directed payment of maintenance to the clerk of petty sessions.

Held, that this was a direction as to the mode of payment and oamo within tho words " in such manner " in the said section, and that the order was good.

Held, further, that the clerk of petty sessions was, according to tho practice, " a person " within tho meaning of the said section to whom payment of maintenance could be directed to bo made.— Aarons v. Aarons, 1907 V.L.R., 21 ; and see Barton v. Barton, 22 V.L.R., 607; Cohen v. McDonough, 1906 V.L.R., 521.

(b) An order under this section requiring the defendant to find surety that he will comply with an order for maintenance cannot bo made except at tho hearing of the complaint upon which such ordor of maintenance is made. The section evidently contemplates one complaint and one hearing, although tho justices, upon such complaint and hearing, may make ono or two orders, as they think fit.—Lyons v. Lyons, 17 V.L.R., 243.

(c) An order under this section requiring the defendant to find good and sufficient surety need not specify the person to whom such security shall be given.

A surety under this section becomes liable immediately on the defendant making default, and there is no necessity for a declaration of forfeiture.—Shee v. Larkin, 1907 V.L.R., 295.

Where, by an order for maintenance made by two justices, under this section, tho defendant is directed to give security, and to procure a surety, for due compliance with the order, the security may be given, and the surety accepted, boforo a justice who wa3 not a party to the order. —Don Hendrick v. Don Htndrick, 8 A.L.R., 29 ; 27 V.L.R., 627.

(d) A warrant of commitment for not finding security for payment of maintenance must recite service of the order upon which it is based.—Reg. v. McCormick, ex parte Brennan, 4 V.L.R. (L.), 36.

P 2


Marriage Act 1890.

Justices Act 1904 «. 20.

Goods of deserting husband or father may be sold and rents received. Marriage Act 1890 s. 44.

aforesaid shall, notwithstanding such committal for a

specified term, forthwith be discharged from gaol ;

(d) may order the defendant to find such surety forthwith and in

default shall commit him to gaol unti l such surety is

found.

8 5 . If it appears to the justices in addition to the part iculars las t aforesaid tha t the husband or the father has deserted his wife or his children, they may by tlieir order authorize aud direct some person forthwith to seize and sell the goods and c h a t t e l s ^ of such husband or father aud to demand and receive his rents or such portion of them as the justices th ink fit,(6> and to appropriate the proceeds towards the payment of such allowance in such manner as they from t ime to t ime direct.

summary 8 6 . W h e n any such husband or father has left Victoria, if the fact JiesertorhasTen is proved on oath, any two justices on complaint made to them for t ha t yiotona. purpose may make the order and give the authori ty hereinbefore men

tioned without the previous issue of any warran t or summons.

87 . Upon the hearing of the complaint of any woman that she has been actually deserted by her husband or lias been left by him without sufficient means of support, the woman so complaining shall produce direct evidence of her marriage with the person against whom such complaint is made ; or, if she cannot produce such direct evidence to the satisfaction of the justices, shall make before the justices an affidavit setting forth the time place and circumstances of the said marriage ; and such affidavit shall be deemed sufficient to authorize the justices to make an order as aforesaid for her maintenance by her husband; and such order shall continue in force until it is rescinded by the same or any two other justices upon such proof as they deem sufficient being given before them of the falsity of the averments sworn to by the woman as herein directed. If any reasonable cause is shown for such desertion or refusal of maintenance as aforesaid, the justices may in their discretion decline to make any order.(c)

88 . If complaint is made on oath to a justice by any woman or by any reputable person on her behalf that there is reasonable ground to

; believe that the husband of such woman intends to desert her or to leave h e r w i t h o u t a d e q u a t e m e a n s of s u p p o r t , or b y t h e m o t h e r of a n y c h i l d

Complaining wife to prove her marriage. lb. 8. 48.

Order to be in discretion of justices.

Order may be made upon husband or father intending to desert. lb. «. 47.

(a) Money in a bank to the credit of a customer is not " goods or chattels " within the meaning of this section.—Gurlayne v. Mitchell, 5 A.J.R., 134.

Moneys due by a third party to a husband is not within the meaning of " goods and chattels " in this section, and justices have no jurisdiction to deal with such money under the section, or to make an order directing such third person to pay over to a wife the moneys of the husband. But qucere if the coins, or money, wore earmarked. —Muir v. Muir, 15 V.L.R., 634

(6) The justices havo jurisdiction to attach all the property of the husband to answer an order for maintenance obtained by tho wife, irrespective of the amount.—Mitchell v. Mitchell, 5 A.J.R., 44.

(c) On the hoaring of a complaint for desertion under this section, the husband's evidence must be received if he tenders it. On suoh hearing it

is for the justices to bo satisfied of tho existence of the marriage as a fact, and an order for maintenance of a wife will not be disturbed booause of tho marriage not having been proved in the form mentioned in this section.—Beg. v. Pope, ex parte Pope, 5 V.L.B. (L.), 25.

As to tho effect of tho wifo having committed adultery.—See Gardiner v. Gardiner, 15 A.L.T., 71, cited in note to section 84.

A married woman was desorted by hor husband in 1890, and from that time sho hoard nothing of him. In 1909 sho went through the form of marriago with O.

Held, in proceedings against O. for leaving her without means of support, that, on proof of the above facts, the onus was upon O. to establish the existence of the first husband at tho timo of the second marriage.—Ousleyv.Ottsley, 1912 V.L.K., 32.

No. 2691.] MARRIAGE ACT 1915. 3209

whether illegitimate or born in wedlock or by any reputable person Marriage Act that there is reasonable ground to believe that the father of such child 189°" intends to desert it or to leave it without adequate means of support, such justice may issue his summons to such husband or father to show cause why lie should not support his wife or child; or may in his discretion issue his warrant for the apprehension of such husband or father. And at the hearing of such complaint, whether the defendant is then present or not, any two justices shall inquire into the matter of such complaint; and if they are satisfied that the defendant intends or that there is any reasonable ground to believe that he intends to desert or to leave without adequate means of support such wife or child, such justices may make an order of maintenance as hereinbefore mentioned and may in and by the same or a separate order require the defendant to find such good and sufficient surety as the said justices think fit that he will pay the allowance directed to be paid by such order of maintenance or that he will not desert or leave without adequate means of support his said wife or child; and such justices shall have the further powers contained in the provisions of paragraphs (c) and (d) of section eighty-four and such provisions shall apply accordingly as if re-enacted in this section.

8 9 . Whore it appears to the justices that the mother of an illegi- Mother of t imate child is able to contribute to its support, the justices may direct 'chlfi'jS^tjo that she as well as the father shall so contribute in such proportions required to and in such manner as such'justices think fit; and if it appears that 76.,. 49.' such mother only is of such ability, the justices may make an order in respect of her alone.

90 . When any order has been made concerning the support of any supplemental wife or child, any two justices may in a summary way with or without ° ^ s may be

any application for that purpose make from time to time such order in n.s. 50. writing as they think necessary for better securing**) the payment and regulating the receipt of the allowance directed for such wife or child's support, or for investing and applying the proceeds of the goods or rents (if any) directed to be sold or collected, or for insuring the due appropriation of such allowance for the bond fide purposes of maintenance, or for causing the children to be properly brought up and educated.

9 1 . Any one justice may at any time inquire in a summary way single justice into any allegation of disobedience of any such order as aforesaid or of any ||}3£™force

order made by the court of general sessions of the peace as hereinafter Ib. s. 5i. mentioned; and may for that purpose summon and examine all proper „ parties and witnesses, and may either commit the offender until the order has been obeyed or may impose upon such offender a penalty of not less than Five nor more than Fifty pounds.*6)

(a) Upon the day appointed for the hearing hearing, make an order under section 84 for of a summons under section 83 calling on a surety or an order for better securing the pay-husband or father to show cause why he should ment under this section.—Lyons v. Lyons, 17 not support his wife or children, the justices V.L.R., 243. may, under section 84, make one order for main- (b) The proper person to enforce obedience tenance and another for surety that he will under this section to an order for maintenance comply with such order, or include both in the made under section 84 is the person who first put same order, or make an order for maintenance the litigation in motion and obtained the order, without making any provision for security; but —Barton v. Barton, 22 V.L.K., 607. in the last case they cannot, on a subsequent An insolvent committed to prison by an


Marriage AH 92 . One moiety of every penalty shall be applied, as the justice or 1890«. 54. justices may in his or their discretion direct, either wholly for the use of iinM.lcat,10n ° the wife or child in respect of whose maintenance the original order

has been made or partly for that use and partly for the use of the informant.

orders subject 9 3 . When any two justices have made any order pursuant to the generii sessions, provisions of this Part they shall transmit the same under tlieir liands ij.*.52. within twenty days next after the making thereof to the clerk of the

peace of the bailiwick within which such order is made; and the court of general sessions for the bailiwick, whether an appeal against the same has been entered or not, may at any time quash confirm or vary such order either in whole or in part at its discretion and may substitute a new order in lieu thereof and may make such order as to costs as the court deems fit and such orders may be enforced as provided by the Justices Act 1915 in the case of appeals to General

order of justices under this section till he should pay arrears of maintenance of his wife is not entitled to his discharge under the Insolvency Act.—Be Harris, 6 V.L.R. (L.), 47.

The refusal of a bank manager to hand over money standing to the credit of a customer to a person authorized by justices by section 86 is not an offence under this section.—Curtayne v. Mitchell, 5 A.J.R., 134.

An inquiry under this section into an allegation of disobedience of a maintenance order made under section 84 is a proceeding within the jurisdiction of a court of petty sessions within the meaning of the Justices Act, and a copy of such maintenance order is a " document " the service of which can be proved by the affidavit of the person who has served the same.

A book (whether the "Suitors' Cash Book" kept under the rules under the Justices Act or not) kept by the clerk of petty sessions for the time being, and purporting to contain entries of all payments made under a maintenance order to the clerk for the time being, is not admissible in evidence upon an inquiry into an allegation of disobedience to such order.—Cohen v. MacDonough, 1906 V.L.R., 521.

A copy of the original maintenance order must be served upon the defendant before the initiation of proceedings to enforce it, under this section.

Cohen v. MacDonough (1906 V.L.R., 521), dictum of Cussen, J., in, disapproved of.—Cohen v. MacDonough, 1907 V.L.R., 7. See also Ex parte McEvoy, 6 V.L.R., 424.

A husband is liable to be punished for each and every breach of an order made under section 84, and the fact that he has been committed for one breach will not prevent his being committed for another.

Under this section, the justices have power to dismiss the complaint or to give the defendant time to pay the amount due from him.—Aarons v. Aarons, 1907 V.L.R., 21.

Semble, under this section justices have jurisdiction to order the defendant to pay by instalments arrears of maintenance.

Aarons v. Aarons (supra) followed.—Lobley v. Lobley, 1909 V.L.R., 383.

Under this section justices havo authority to enforce obedience of an order for maintenance of a wife, though the order was made moro than twelve months previously, and to compel payment of the costs of the enforcement.—In re Welsh, 9 V.L.R., 160.

A warrant of commitment for not finding security for payment of maintenance must recite service of the order upon which it is based. —Begina v. McCormick, ex parte Brennan, 4 V.L.R., 36.

By an order under section 84 magistrates ordered the defendant to pay a weekly sum for the maintenance of his illegitimate child, and by the same order required him " to find forthwith one good and sufficient surety," and directed that " i n default of finding such suroty" the defendant be committed to gaol until such order be complied with.

Held, that the magistrates had power to make the order, and, on non-compliance with it, to issue a warrant without any preliminary service of the order.

Semble, the magistrates who make a maintenance order and direct the finding of sureties are also to commit on default.

Foley v. Monaghan (14 A.L.T., 240) and B. v. McGormich (4 V.L.R. (L.), 36) discussed.

Cohen v. MacDonough (1907 V.L.R., 7) distinguished.—Adams v. Bogera, 1907 V.L.R., 245.

A wife obtained a maintenance order from a court of potty sessions in 1892. In 1898, in consideration of a sum of money then paid by the husband to the wife, the wife executed a deed releasing tho husband from all future payments under the maintenance order. In a proceeding against the husband for disobodienoo of the maintenance order the deed of release was put in as an answer to tho complaint, and the justices dismissed the complaint.

Held, that the justioes were right, and that the deed of release was a good defence.—Graham v. Graham, 25 V.L.R., 101.

No. 2691.] MARRIAGE ACT 1915. 3211

Sessions under that Act.(a) Provided that it shall be lawful for the Marriage Act Governor in Council to order the discharge from prison of any person who may be imprisoned in default of compliance with any order made under the provisions of this Part of this Act.

94. Upon and during the hearing of any complaint under this who may be Part by any unmarried woman or any reputable person against any King of father alleged to be deserting or intending to desert any illegitimate dcse?wontio!' child or children or to be leaving or intending to leave any such child Marriage Act or children without adequate means of support, no person shall be or 1 13s"2' be permitted to be present in the court except the persons mentioned in section one hundred and four of this Act unless the court in the interests of justice permits any other person to be present.

95 . In any proceedings under this Part against the putative father of an illegitimate child for the maintenance of such child, the fact that such child has been committed to the care of the Department for Neglected Children shall be prima facie evidence that such child is without adequate means of support, and in fact without means of support.

96 . In any proceedings under this Part, no man shall be taken to be the father of an illegitimate child upon the oath of the mother only.'4'

97. (1) (a) Where a husband without lawful or reasonable cause or excuse deserts his wife and leaves her without adequate means of support(c), or

As to illegitimate children committed to Department for Neglected Children. Marriage Act 1901 s. 6.

Uncorroborated oath of mother insufficient as to paternity of illegitimate child. Marriage Act 1890 s. 48. Desertion of wife or children and going out of

(a) Omission to transmit an ordor of justices for maintenance to the clerk of the peace does not render the order a nullity, nor is the omission a ground for quashing a conviction for disobedience —Reg. v. King, ex parte King, 6 V.L.R. (L.), 250.

By this section a right of appeal is given by implication, and the court of genoral sessions should work out the appeal, moulding its usual procedure and practice so far as necessary.—• R. v. The Justices oj the Central Bailiwick, 7 V.L.R. (L.), 90. See Justices Act, section 139.

Upon an application to general sessions to review an order for maintenance, if the appellant doe=t not appear, the court may confirm the order without hearing ovidence, and may award costs to the respondent.—Reg. v. The Chairman, &c, oj General Sessions, Melbourne, ex parte Kemball, 10 V.L.R. (L.), 40.

And see note to section 108, infra. (b) In a complaint before justices against the

putative father for the maintenance of an illegitimate child, former orders made against the father are evideneo of his paternity in a subsequent proceeding, even though such orders are bad and might havo been quashed, and these former orders are estoppel against the alleged father denying that he was the father. Per Higinbotham, C.J.—" An order for maintenance may be mado by justices without the ovidence of the mother herself. This section does not mean that either the evideneo of tho mother or the corroboration of hor evidence is required to give the justices jurisdiction." Semble, per Holroyd, J.—" The

mother's evidence, when it can be obtained, is the best evidence of the paternity; and unless the putative father is estopped from denying his paternity it ought to be produced. Although this section does not expressly say that the mother should be called to give evidence, it takes for granted that she would."—Hanley v. McMasters, 15 V.L.R., 322.

I t is not sufficient corroborative evidence that the alleged father drove tho mother home in a cart on the evening of the 16th March, and that the child was born on the 13th December following.—Phillips v. Tomlinson, 2 W.W. & a'B. (L.), 92.

In a complaint for the maintenance of an illegitimate child, evidence given by the complainant and the defendant that the defendant was the father of a former child of the complainant is admissible, and is a corroboration of the mother's oath within the meaning of this section. —Galbally v. Walkins, 18 V.L.R., 67.

In a complaint for maintenance, the complainant sworo that the defendant was the father of two children born in 1890 and 1892 respectively. The only other evidence was that of complainant's sister, to the effect that defendant had admitted to her that he was responsible for complainant's second pregnancy. Held, that the mother's testimony was sufficiently corroborated under this section and that the defendant was rightly adjudged to bo tho father of both children.— Stokes v. Roughan, 20 V.L.R., 288.

(c) The words " adequate means of support "

3212 MARRIAGE ACT 1915. [,6 GEO. V.

Marriage Act 1901 8. 3. Victoria an indictable offence.

Certain breaches of Act indictable when offender leaves Victoria. lb. s. 4.

Persona deserting wife or children in British Possession &c. may be arretted in Victoria.

lb. s. 5.

44 & 45 Vict, c. 69.

(6) where a father without lawful or reasonable cause or excuse deserts his children .born in wedlock and under the age of fourteen years and leaves them or any of them without adequate means of support,

and goes to reside or is resident either temporarily or permanently beyond Victoria/"1 such husband or father shall be deemed to be guilty of an indictable offence punishable by imprisonment with or without hard labour for a term of not more than one year.

(2) In any case specified in this section if a complaint is made on oath to a police magistrate by the wife or by any reputable person on her behalf, or in the case of children by the mother or any reputable person on their behalf, such magistrate, if satisfied that an offence has been committed within the meaning of this section but not otherwise, may issue his warrant for the apprehension of the person against whom such complaint has been made.

98 . (1) Every person who wilfully refuses or neglects to comply with an order for maintenance*6) of his wife or children whether illegitimate or born in wedlock made against him under section eighty-four of this Act and goes or attempts or makes preparation to go beyond Victoria or to reside or is resident either permanently or temporarily beyond Victoria shall be deemed to be guilty of an indictable offence punishable by imprisonment with hard labour for a term of not more than one year.

(2) No person convicted of an offence against this section shall be liable to any other penalty or punishment for such offence ; but such conviction shall not prevent the making or operation of any order for the payment of money or the doing of any act by such person which may be lawfully made under this Act.

99 . Whenever the Legislature of any British Possession beyond the limits of the United Kingdom of Great Britain and Ireland the Channel Islands and the Isle of Man and other than Victoria makes provision whereby the offence of desertion of wife or children and going to reside beyond the limits of such possession is constituted an offence whether punishable on indictment or otherwise by imprisonment for a term of twelve months or more, then and in every such case every person accused of such offence and coming to Victoria may be arrested and dealt with in Victoria under and pursuant to the provisions of the Act of the Imperial Parliament of Great Britain and Ireland intituled the Fugitive Offenders Act 1881 or any Act amending the same.

signify means adequate to maintain the person deserted during the poriod over which the desertion is intended to extend.

A husband deserted his wife, intending to permanently remain away from her. He left her with sufficient money to maintain her for a short time, but had no intention of making any further provision for her.

Held, that he had left her without adequate means of support.—Bex v. Mackie, 1908 V.L.R., 689.

(a) On the hearing of a ohargo against a husband, under this sub-seotion, of deserting his wifo and going to reside beyond Victoria, the wifo is a competent witness.—Rex v. Jacono (1911 V.L.R., 326) applied.—jB. v. Hind, 1912 V.L.R., 429.

(b) On the hearing of a ohargo against a husband of wilfully neglecting to comply with an order for maintenance, tho wife is not a competent witness.—Bex v. Jacono, 1911 V.L.R., 326.

No. 2691.] MARRIAGE ACT 1915. 3213

100. No action shall lie against any justice for any matter or thing Marriage Act done or commanded by him in pursuance of this Part of this Act, unless 1890 *•53-there is direct proof of corruption or malice and unless such action is act?^ against commenced within three months after the cause of action has arisen. J'ustl0es-

PART IV.—ORDERS FOR CONFINEMENT EXPENSES.

101. In this Part the expression "confinement expenses" includes interpretation. reasonable medical and nursing expenses attendant upon the confinement "Confinement

° *• r expenses.

of a mother and the cost of clothing necessary for a child for two Mamage Act months after its birth. 19u0 s-2-

102. In any proceedings under Part III . of this Act before any two order for justices for an order of maintenance against— experSlrf

(a) a husband, or c^cstonance

(6) the father of an illegitimate child, n. 8.3. an order for confinement expenses may be made by such justices against such husband or father, and such order may be made separately or included in any other order.

103. If any woman, being with child, complains on oath to any justice Application tor that any person is the father of a child which she believes she will bear, e°penS.ent

such justice upon proof that the complainant is with child may issue a n.s.i. summons to such person to show cause why he should not pay confinement expenses to the complainant.

104. Upon and during the hearing of such complaint under the Who to be last preceding section no person shall be or be permitted to be present hearing of in the court except the following :— application.

Marriage Act

(a) the adjudicating justices the officers of the court and a1902 s-2-member of the police force ; wwl fg / -

(6) the complainant and the defendant and their respective barristers and solicitors, and the clerks of such barristers and solicitors;

(c) the mother or sister or female or male friend of the complainant if desired by such complainant;

(d) any person whilst being examined as a witness ; and (e) the mother or sister or female friend of any female witness if

desired by such witness whilst being examined ; unless the court in the interests of justice permits any other person to be present.

105. At the hearing of such complaint (whether the defendant is order for then present or not) any two justices, upon proof that the complainant expenses.6111

is with child and upon proof sufficient to satisfy them that the defendant Marriage Act

is the father of the child, the subsequent birth of which is probable, may a

make an order in writing directing the defendant to pay a sum not exceeding Ten pounds for the confinement expenses of the complainant. (a>

(a) An order for confinement expenses under been deserted or left by him without means of this section may be made in favour of a wife who support.—Euddell v. Buddell, 1912 V.L.R., 221. has voluntarily left her husband, and who has not


Procedure. lb. s. 7.

Marriage Aa 106. In any proceeding under this Part of this Act no man shall, un o'roboratcd u P o n *ê o a * n 0 I * n e complainant only, be taken to be the father of the oath of child the subsequent birth of which is probable. ( a )

complainant ± *• insufficient.

ib. s. 8. 1 0 7 . Every order for confinement expenses shall specify a date not Terms of order, later than five months thereafter when the order shall lapse if a child Ib' *'6' has not been born of the compla inant ; and all moneys (except costs)

payable under the order shall be received by the clerk of pe t ty sessions and, on the bir th of a live or a still-born child, shall be applied pursuant to the order, or, failing such birth, shall be retained by the clerk of pe t ty sessions until the da te specified as aforesaid and shall then be returned to the alleged father.

1 0 8 . The procedure provided for the enforcement of compliance with orders of maintenance and as to the powers of the court of general sessions of the peace for the district in reference to any such orders shall as nearly as practicable apply to orders made under this P a r t of this Act. (6

contract for 1 0 9 . Notwithstanding anything contained in any Act no contract portioC"of0£ any o r agreement whereby any barrister and solicitor or any person other

than the complainant would but for this section be entitled either directly or indirectly to retain for his own use the whole or any part of any sum which pursuant to the provisions of this Part of this Act may be ordered by justices to be paid by any defendant for the confinement expenses of any woman shall have any force or effect in so far as it purports so to entitle any such person. If any barrister and solicitor or person as aforesaid directly or indirectly retains for his own use the whole or any part of any sum ordered to be paid by any defendant as aforesaid he shall be guilty of an offence and shall be liable to a penalty of not more than Twenty pounds.

confinement expenses to barrister or solicitor void. Marriage Act 1902 s. :i.

Ponalty.

Judicial separation substituted for divorce a menstl et thoro. Marriage Act 1890 s. 61.

PART V.—DECREES FOE JUDICIAL SEPARATION.

110. No decree for a divorce a mensd et thoro shall be made, but in all cases in which such a decree might have previously to the thirteenth day of June One thousand eight hundred and sixty-five been pronounced in England by any court having jurisdiction in the matter the Court

see 20 &2i vict. m a y pronounce a decree of judicial separation. c. 85 s. 7.

Effects of and grounds for decree for a judicial separation. 76. «. 62. lb, s 16.

1 1 1 . A decree of judicial separation shall have the effect of a divorce a mensd et thoro under the law existing previously to the thirteenth day of June One thousand eight hundred and sixty-five in England, and such other legal effect as herein mentioned; and may be

(a) In order to establish paternity under this section it is not necessary that there should be direct independent evidence of the paternity or of acts of intercourse.

Independent evidenco of words or conduct of the defendant more consistent with his being tho father of the child than with his innocence is sufficient to justify tho magistrates in making an order against him.—Orococh v. Stevenson, 1905 V.L.R., 53G ; and see notes to section 96.

(6) The court of general sessions has a dis

cretion under section 93 to dismiss an appeal from a pre-maternity order made under sections 105 and 107 if, having regard to tho circumstances of the caso, it bo not lodged within a reasonable time.

Held, that a notice of appeal lodged 2J- months after the making of a pre-maternity order, and too lato for tho hearing to take placo within tho period of gestation defined by tho order, was not lodged within a reasonable timo.—Rex v. Chomley, ex parte Hand, 29 V.L.E., 562.

No. 2691.] MATIRIAGB ACT 1915. 3215

obtained either by the husband or wife on the ground of adultery(a) or Marriage Act of crueltyW or of desertion without cause for a period of two years.t"' 18fl0'

112. Application for judicial separation on any one of the grounds Husband or wife aforesaid may be made by either husband or wife by petition to the "uSf'10"for

Court; and the Court, on beine; satisfied of the truth of the allegations separation, therein contained and that there is no legal ground why the same See Jo * 21 Vict, should not be granted, may decree such judicial separation accordingly; <>. 85 s. 17. and where the application is by the wife may make any order for alimony^ which is deemed just.

113. In all cases where the Court makes any decree or order for court may direct alimony, it may direct the same to be paid either to the wife herself or Sy'to'w'feor to any trustee on her behalf to be approved by the Court; and may ^her ' rus tee-

impose any terms or restrictions which to the Court seem expedient; iD.'s. 24. and may from time to time appoint a new trustee if for any reason it appears to the Court expedient so to do.(e)

114. Any husband or wife upon the application of whose wife or ^SuJn husband (as the case may be) a decree of judicial separation has been âbJenc" ofnK

pronounced may at any time thereafter present a petition to the Court, husband or wife praying for a reversal of such decree on the ground that it was obtained ^ , ^rCTerse< • in His or her absence and that there was reasonable ground for the Ib „. 23.

(a) Cohabitation is the only mode by which in a suit for judicial separation on tho ground of adultery the adultery can be condoned.

The execution by tho wife of a deed of separation is not a bar to her instituting a suit for judicial separation, on the ground of her husband's adultery ; but

Semble, a deed of separation would form an element of great importance in a suit for judicial separation on the ground of cruelty, and would bo an element to be regarded in a suit for judicial separation on the ground of adultery, if tho wifo obtained by the deed all sho was entitled to.—Sutherland v. Sutherland, 8 V.L.R. (LP. & M.), 49.

In a suit for judicial separation there is no jurisdiction to add as a respondent a named third person with whom the adultery is alleged to havo been committed even though such person wishes to appear.—Amess v. Amess, 1914 V.L.R., 194. Compare sections 126 and 155.

(6) Judicial separation will not be granted on the ground of cruelty, unless there is a reasonable apprehension of bodily harm. Cruelty to the children will not be sufficient, unless done with an intention to annoy the wife.—Kennedy v. Kennedy, 4 A.J.R., 106.

Cruelty must consist of some ill-treatment which endangers the life, the person, or the health, or renders cohabitation unsafe. Habitual drunkenness, frequent abuse, and occasional acts of violence not of a grave character do not constitute cruelty. Evidence that the husband has boon bound over to keep the peace towards his wife is admissible in support of a charge of cruelty.—Macartney v. Macartney, 3 V.L.R. (LP. & M.), 81.

If the wife becomes the assailant and uses such violenco as is likely to cause the husband to retaliate and to use violence in self-defence,

her conduct amounts to cruelty.—Terry v. Terry, 5 A.J.R., 50.

In determining whether a decree for judicial separation should be granted to a wife on the ground of cruelty, the Court may take into consideration injury to the petitioner's mental, as distinguished from her bodily, health, and may give relief in respect of causes of complaint which affect the mind only.—Stoneham v. Stoneham, 10 A.L.R., 107; 29 V.L.R., 732.

See cases under section 124. (c) In a suit for judicial separation, an appli

cation as to the custody of children and as to alimony and costs may be made in chambers after the hearing. Semble, in a suit for judicial separation when the pleadings do not raise the question of the wife's character, the Court, in considering who is entitled to the custody of the children, will not hear any evidence against hor character.—Cawhwell v. Cawkwell, 10 V.L.R. (LP. & M.), 69.

(d) Where, on a petition by a husband for divorce, which failed owing to misconduct conducing to adultery, recriminatory charges had been preferred by the wife, who had been guilty of a series of acts of adultery, the court decreeing judicial separation refused to grant her alimony. —Terry v. Terry, 1 W.W. & a'B. (I.E. & M.), 79.

(e) Where, in a suit for judicial separation, the petitioner's proctor has been appointed her trustee to receive alimony, and she applies for his removal from the trusteeship, it is not necessary that she should first obtain an order for a change of proctor.

On summons to remove from his position a proctor who had been appointed trustee to receive alimony, and who had claimed a lien for his costs over the alimony received, the petitioner was herself appointed to receive the alimony.—Wootlen v. Wootten, 2 A.L.R., 99.


Marriage Act 1890.

During judicial separation the wife to be considered a/fl»te sole with respect to certain property. lb. s. 67. See 20 & 21 Vict, c. 85 s. 25.

In case of renewed cohabitation such property of wife to be held to her separate use. lb. 8. 68. lb. Proviso.

During judicial separation husband not liable for wife's contracts or torts. 76. «. 69. lb. c. 85 s. 26.

During separation husband and wife may jointly exercise joint power. lb. s. 70. lb. Proviso. Property of wife as executrix or trustee included in decree or protect ing Older. lb. S. 71. 21 & 22 Vict. c. 108 s. 7. Discharge of decree is not to affect creditors. lb. s. 72. lb. s. 8.

alleged desertion where desertion was the ground of such decree; and the Court may on being satisfied of the truth of the allegations of such petition reverse the decree accordingly; but the reversal thereof shall not prejudice or affect the rights or remedies which any other person would have had in case such reversal had not been decreed in respect of any debts contracts or acts of the wife incurred entered into or done between the times of the pronouncing of such decree and of the reversal thereof.

115. In every case of judicial separation, the wife shall, from the date of the decree and whilst the separation continues, be considered as a feme sole with respect to property of every description which she may acquire or which may come to or devolve upon her((I) and such property may be disposed of by her in all respects as -A feme sole; and on her decease the same shall in case she dies intestate go as the same would have gone if her husband had been then dead.

116. If any wife after judicial separation again cohabits with her husband, all such property as she may be entitled to when such cohabitation takes place shall be held to her separate use, subject however to any agreement in writing made between herself and her husband whilst separate.

117. In every case of a judicial separation, the wife shall whilst so separated be considered as & feme sole for the purposes of contracts and wrongs and injuries and suing and being sued in a,ny civil proceeding; and her husband shall not be liable in respect of any engagement or contract she may have entered into or for any wrongful act or omission by her or for any costs she may incur as plaintiff or defendant. Provided that where upon any such judicial separation alimony bus been decreed or ordered to be paid to the wife and the same is not duly paid by the husband, he shall be liable for necessaries supplied for her use.

118. Nothing herein contained shall prevent the wife from joining at any time during a judicial separation in the exercise of any joint power given to herself and her husband.

119. The provisions contained in this Act respecting the property of a wife who has obtained a decree of judicial separation, shall be deemed to extend to property to which such wife has become or becomes entitled as executrix administratrix or trustee since the decree of separation; and the death of the testator or intestate shall be deemed to be the time when such wife became entitled as executrix or administratrix.

120. In every casein which a wife obtains a decree of judicial separation, such decree until reversed shall so far as is necessary for the protection of any person dealing witli the wife be deemed valid and

devolved upon her sineo tho docreo, within tho meaning of this section ; that, although a woman entitled to property, with a clause against anticipation, &c., may, whilst unmarried, require it to be discharged of this restriction, yet a woman judicially soparated is not for all purposes to bo deemed unmarried.—Mackintosh v. Clarice, 3 W.W. & a'B. (Eq.), 77; affirmed on appeal, 3 W.W. & a'B. (Eq.), 123.

(a) By an ante-nuptial settlement, real and personal property of the wifo was settled so that tho income during the joint lives of husband and wife was payable to her for her separate use without power of anticipation. Tho wife, having obtained a decree of judicial separation, instituted a suit against the trustees of the settlement, praying for an absolute conveyance to her of all the settled proporty. Held, that the property was not acquired and had not come to or

No. 2691.] MARRIAGE ACT 1915. 3217

effectual; and no reversal of such decree shall prejudice or affect any Marriage Act rights or remedies which any person would have had in case the same 189°" had not been so reversed in respect of any debts contracts or acts of the wife incurred entered into or done between the times of the making such decree and of the reversal thereof; and property of or to which the wife is possessed or entitled for an estate in remainder or reversion at the date of the decree shall be deemed to be included in the protection given by the decree.

1 2 1 . If any person in reliance on any such decree makes any indemnity to payment to or permits any transfer or act to be made or done by the JSynlLTs nder wife who has obtained the same, notwithstanding such decree has "»ersed

7 o decrees. then been reversed or the separation of the wife from her husband has ib.s.n. ceased or at some time since the making of the decree has been 21 soviet, discontinued, such person shall be protected and indemnified in the same way in all respects as if at the time of such payment transfer or other act such decree was valid and still subsisting in full force and effect and the separation of the wife from the husband had not ceased or been discontinued: unless at the time of such payment transfer or other act such person had notice of the reversal of such decree or of the cessation or discontinuance of such separation.

PART VI.—DECREES FOE DISSOLUTION OF MARRIAGE.(6>

122 . Any married person who at the time of the institution J)ai™ce in what

of the suit lias been domiciled in Victoria for two years*0' and It),,. 74,

(a) A petitioner for divorce under this section must have been continuously domiciled in Victoria during the two years immediately preceding the petition.—King v. King, 1905 V.L.R., 420. See also Boss v. Boss and Bobertson v. Bobertson, infra.

(b) Inasmuch as this Statute gives the Court jurisdiction in tho main object of a suit for dissolution of marriage it has jurisdiction in all collateral incidents of the suit.—Splatt v. Splatt, 11 V.L.R., 300.

Corroboration of the evidence of the husband or wife is generally necessary.—Casey v. Casey, 1 W. & W. (I.P. & M.), at page 47.

Whore a prior petition had boon dismissed for want of corroboration, the Court treated the dismissal as in tho nature of a non-suit and no bar to the second petition, and granted the order nisi on the ground of desertion.—Qaisjord v. Gaisjord, 5 A.L.R. (C.N.), 65.

DOMICIL.—The question in every case is what was the intention of the husband; whore did he intend to make his home.—Pinchin v. Pinchin, 4 A.L.R., 211; 20 A.L.T., 54.

In proceedings for dissolution of marriage, tho domicil of the parties is, in the absence of express enactment, the sole tost of jurisdiction. An entry of appearance or submission to the jurisdiction by a respondent cannot confer on the Court jurisdiction, not otherwise possessed by it, to dissolve a marriage.

Ho-a-miev. Ho-a-mie (1880), 6 V.L.R. (I.P.&M.), 113; Firkins v. Firkins (1898), 4 A.L.R., 74; 23 A.L.T., 122 ; and Crook v. Crook (1901), 23 A.liT., 123, overruled.

General words in the Marriage Act, such as " any wife," " any husband," are to be construed

as any wife (any husband) domiciled in Victoria at the time of the presentation of the petition for dissolution of tho marriage.

In ordor to justify a finding that a man has lost his domicil of origin and has acquired a new domicil, the evidence must show that he has voluntarily left the country of his domicil of origin and has taken up his residence in another country with the intention of residing thero permanently or indefinitely sine animo revertendi.

In determining whether a man who has left his domicil of origin, and gone to reside in another country, had or had not an animus revertendi more statements as to his intentions should not be permitted to countervail the inference to bo drawn from his conduct and acts.— Forster v. Forsler, 1907 V.L.R., 159.

Apart from special enactment, such as that enabling a wife deserted in Victoria to petition for dissolution of marriage, the Court has no jurisdiction to dissolve a marriage unless the husband is, at the time of the institution of the proceedings, domiciled in Victoria. Accordingly where a wife so deserted petitions against a husband domiciled elsewhere than in Victoria, the Court has no jurisdiction to entertain a cross-petition by him for dissolution of the marriage.

Observations on the acquisition of a new domicil by a Commonwealth officer in the Department of Customs, who is transferred from Victoria to another State.—Bailey v. Bailey, 1909 V.L.R., 299.

Where a husband was domiciled in Victoria, and the wife had been residing in a foreign country, and was at the time of tho hearing of a petition presented by her for divorce still residing there, the ground of such petition being that at the time of the presentation of the petition the


ManiageAct upwards may present a petition to the Court prayiug on one or

respondent had been imprisoned for a period of upwards of three years, and was still a prisonor under sentence to penal servitude for seven years : Held, that tho Court had jurisdiction to entertain tho petition.—Butler v. Butler, 14 A.L.T., 167.

Section 124 gives the Court jurisdiction only in casc3 where according to the general principles of the law of nations it has jurisdiction, and where, according to those principles, its decree would be enforcod in other countries.

In 1883, the petitioner, a domiciled Victorian, was married in Victoria to the respondent, a domiciled Tasmanian, and thereafter cohabited with him in Tasmania. In 1892 the petitioner was granted a deerco of judicial separation by the Tasmanian Court, one of tho terms of which was that she should " bo at liberty to reside elsewhere than in Tasmania until tho further order of tho Court." In 1893 she returned to Victoria, and resided there continuously until 1902, when sho petitioned the Victorian Court for a dissolution of her marriage on tho ground of adultery.

Held, that the Court had no jurisdiction to entertain tho petition.

Held, that the terms of the decree of judicial separation themselves precluded tho petitioner from acquiring a domicil in Victoria.

Semble, that, though a wife has obtained a deerco of judicial separation, the marriage tie still exists, and her domicil always remains tho same as that of her husband.

The domicil for tho time being of tho parties to a marriage affords tho only true tost of jurisdiction to dissolve their marriage.

The decision of tho Full Court in Ho-a-mie v. Ho-a-mie (1880, 6 V.L.K. (I.P. & M.), 113) not followed.

Qucere, whether tho Court may, upon an application to set aside tho service of a petition for divorce, decide the question of tho jurisdiction of tho Court to entertain such petition.—Lord v. Lord, 28 V.L.R., 566.

Whero an act, committed outsido of Victoria by a person domiciled abroad, is complained of as a ground for divorce in Victoria, and is unlawful whero committed, though not a ground for divorco there, the Victorian Court has jurisdiction to dissolvo the marriage, provided all othor conditions are complied with. But whero such act is lawful where committed, tho parties being then domiciled there, tho Victorian Court should not exerciso jurisdiction to dissolvo tho marriage un-loss the Victorian legislation is specific on the point.

Held, therefore, that whore the respondent had been an habitual drunkard, and had habitually neglected her domestic duties during three years and upwards, part of which term was in Now Zealand, whore habitual drunkenness was a ground for dissolution of marriage, there was jurisdiction in Victoria to dissolvo the marriago. —Oremer v. Cremer, 1905 V.L.R., 532.

A husband, whoso domicil of origin was in Victoria, bocamo domiciled and was married in Queensland. He was thore, in 1909, deserted by his wife. Afterwards he returned to Victoria, and, having been domiciled here for two years

and upwards, ho petitioned for tho dissolution of his marriage on tho ground of desertion. I t was shown that by tho law of Queensland desertion is a ground for judicial separation only. The wifo had never boon in Victoria, and service upon her of the citation had been dispensed with by a judgo's order, her whoreabouts being unknown.

Held, that there was jurisdiction to grant a divorco, inasmuch as (1) the domicil of tho wifo was, in the circumstances, that of her husband, and (2) desertion being a legal wrong in Queensland and also in Victoria, tho petitioner was entitled to the particular remedy provided by the Victorian law.

Observations on (1) the circumstances in which a wifo's domicil changes with that of her husband, and (2) dispensation with service- of citation.

Cremer v. Cremer (1905 V.L.R., 532), applied.— Boyd v. Boyd, 1913 V.L.R., 282.

The parties wore married in Victoria in 1872, and were domiciled and lived in Victoria until 1884, whon tho husband abandoned his domicil in Victoria and acquired another in New South Wales. In 1886 ho loft his wifo at her parents' bouse in Hay, New South Wales, to seek for work, and sho had never soon him sinco. For two yoars he corresponded with her, sending her small sums of money. His last letter, in 1888, stated that ho was going to Grey Range, in New South Wales. Ho subsequently went to Broken Hill, New South Wales.

In February, 1890, tho wifo returned to Victoria, and had sinco resided there, making it her homo, and earning her living there.

Held, that the Court has no jurisdiction to entertain a petition for divorco unless tho petitioner is domiciled in Victoria at tho timo of tho presentation of tho potition.

Held, further, that tho fact that tho marriago was celebrated in Victoria did not affect tho question of jurisdiction.

Held, also, that tho term "domiciled " in section 122 was not equivalent to " resident," and tho residence of the wifo in Victoria for two years immediately preceding the marriago did not mako her a " domiciled " person within tho moaning of tho section.

Held,, also, that a wifo domiciled in another country and there deserted cannot acquire a Victorian domicil by residence in Victoria.— Jackson v. Jackson, 18 V.L.R., 766.

A husband and wife, married in England, acquired a now domicil in Victoria., whore adultery was committed by the wifo. Sho continued to resido in Victoria with tho co-respondent, but tho husband returned to England and abandoned his domicil of choice. Afterwards ho camo to Victoria for tho purpose of obtaining a dissolution of tho marriago, intending to return to England unless ho could obtain suitablo employment in Victoria.

Held (dubitanle, Molesworfh, J.), that tho Court had no jurisdiction ; also, that tho Court was bound to take cognisanco of the petitioner's want of domicil though there was no appoaranco for tho respondent or co-rospondont.

Due sorviee of a citation upon the respondent

No. 2691.] MARRIAGE ACT 1915. • 3219

more of the grounds*") in this section mentioned that his or her marriage Marriage Ad with the respondent may be dissolved— *

(a) On the ground that the respondent has without just cause Desertion.

and co-respondent does not confer jurisdiction upon the Court.—Duggan v. Duggan, 3 V.L.R. (I.J?. & M.), 71.

A husband and wife left the country of their domicil under an engagement as members of a theatrical company, with no intention of returning to that country, but with the intention of making a tour of the Australian colonies, and making Victoria their head-quarters. In the course of making such tour they remained in Melbourne a short time on two occasions. On a suit for dissolution of marriage, instituted by the wifo against her husband, who was then in New Zealand : Held, that the facts warranted the conclusion that the parties wore bond fide domiciled in Victoria, and that the Court had jurisdiction to grant the relief prayed.—Cremar v. Cre.rn.ar, 12 V.L.R., 738.

Xho respondent, whoso domicil of origin was in Victoria, where he resided and carried on business, was married in that State, but never lived there openly with his wife. He had a branch office in Sydney ; and a few years after his marriage ho brought his wife and children from Melbourne to Sydney, and there made a homo for them at which he lived with them for a few months, and then deserted them. From that time, though in the course of his business ho was frequently in New South Wales for considerable periods, he never had any fixed residence there.

In a suit brought by tho wife in the Supreme Court of New South Wales for dissolution of marriage on the ground of desertion :

Held, on the evidence, that tho respondent had not acquired a domicil in New South Wales, and therefore the Supremo Court of that State had no jurisdiction to entertain the suit.

In order to establish a chango of domicil in such a case there must be clear evidence of an intention by the husband to abandon his domicil of origin and to make a new permanent home in the State to which he has removed.—Parker v. Parker, 5 C.L.R., G91.

Petitioner and respondent had been resident and domiciled in Victoria. The respondent (the husband) subsequently went to New South Wales for the purpose of obtaining employment, and at the time he went away from the petitioner he had no intention of deserting her. Some months afterwards, while the respondent was in New South Wales, he determined to abandon the petitioner.

Held, that tho desertion commenced in New South Wales when the respondent was domiciled there, and that this Court had no jurisdiction to entertain the petition.

Held, further, that the desertion commenced when tho respondent determined to put an end to tho matrimonial relation, and would not relate back to the time when he first went away.— Ross v. Ross, 22 V.L.R., 370.

But, on appeal, the I- ull Court reversed tho decision of Hood, J., above stated, holding that at the time of the desertion the husband had not

lost his Victorian domicil, and that therefore the petitioner was a wife who was deserted while domiciled in Victoria and entitled to a divorce under the concluding portion of section 122.— Ross v. Ross, 18 A.L.T., 222 ; 3 A.L.R., 70.

A husband, whose domicil of origin was in New South Wales married there, and in 1896 went, with his wife's consent, to Western Australia, where he worked at different occupations, and where he remained until 1906 with tho exception of a short visit to New South Wales, in 1898. In 1909 he instituted a suit for divorce in New South Wales on the ground of desertion for three years and upwards, based on the refusal of his wife to go to live with him in Western Australia. This suit was dismissed on the ground that there had been no desertion. The husband in 1906 returned to Western Australia, and in 1908 became manager of a station there, and he retained that ^position and remained in Western Australia until 1911, when he instituted in New South Wales a second suit for divorce on the ground of desertion for three years and upwards, based on the continued refusal of his wife to live with him in Western Australia. At the hearing, the husband denied that he intended to leave New South Wales permanently and to make his home in Western Australia.

Held, on the evidence, that tho wife had not discharged the onus of proving that tho husband had lost his domicil of origin.—Fr&nlin v. Fremlin, 16 C.L.R., 212.

A male infant, though married, has no power to change his domioil.

The respondent, who had been born and always domiciled in Victoria, went to New South Wales at the age of eighteen, and was shortly afterwards married there. On the day of the marriage he asked his wife, the petitioner, to go to Victoria, promising to follow her and make a homo there; but after having corresponded with her for about three months he negleet'ed to reply to any further letters from her. There were facts from which it might bo inferred that he intended to change his domicil, and settle in New South Wales.

Held, that as the respondent had no power during his minority to chango his domicil, the Victorian Court had jurisdiction under the concluding portion of section 122 to grant a dissolution of the marriage on the ground of desertion.—Robertson v. Robertson, 1905 V.L.R., 546.

(a) A petitioner may bring forward only one ground for dissolution of marriage though he knows of the existence of other grounds.— Batty v. Batty, 26 V.L.R., 22.

The Court will be very cautious in permitting a new ground for divorce to be added at a late stage in the proceedings, and will closely scrutinize the evidence in support of such new ground.—Wilkie v. Wilkie, 6 A.L.R. (C.N.), 57.

http://Cre.rn.ar

3220 • MARRIAGE ACT 1915. [6 GEO. V.

or excnse(a) wilfully deserted**) the petitioner and without

(a) The rule in McNaughten's case (1843), 10 CI. and F. 200, applies to the commission of a matrimonial offence which would otherwise be a ground for divorce.

A married woman for three years and upwards withdrew from cohabitation with her husband, under an insane delusion that ho had a venereal disease. On petition by the husband for a divorce on the ground that she had without just cause or excuse wilfully deserted him, and without any such cause or excuse left him continuously so deserted during three years and upwards:

Held, that, assuming that her conduct was such as would amount to the desertion contemplated by the Statute, as such desertion was caused by the insane delusion the husband must fail in his petition.—Cosham v. Cosham, 25 V.L.R., 418.

(6) Semble, the term "wilfully deserted" in this sub-section means "deserted."—Cosham v. Cosham, 25 V.L.R., 418.

Desertion sufficient to ground proceedings for divorce occurs where a husband leaves his wife with the intention of living apart from her, and makes no effort to return to married life.— Watsford v. Watsford, 1 A.L.R., 54.

Desertion of a wife by a husband involves an actual and wilful bringing to an end of an existing state of cohabitation by the husband without the consent of the wife; and consent involves more than mero acquiescence in an existing separation or non-resistance to proposed abandonment; it involves a communication of the acquiescence or non-resistance to the other, either by express words or by conduct. A mere state of mind not disclosed to the other is not sufficient to constitute consent.

Held, therefore, in a suit by a wife for dissolution of marriage on the ground of desertion, that the mere existence in the mind of the wife of a feeling of relief at being freed from her husband, owing to his conduct prior to his abandonment of her, does not amount to a consent to the abandonment.—Bradford v. Bradford, 7 C.L.R., 470. ' If a husband is shown deliberately and

without just cause or excuse to have left his wife for the statutory period, desertion is established. The fact that tho wife has no real desire for the husband to return to her is not such cause or excuse, and does not affect tho reality of the desertion.—Langlands v. Langlands, 16 A.L.T., 44.

Desertion is the deliberately and voluntarily bringing to an end an existing stato of cohabitation against tho will of the other party. I t is not desertion of the wife by tho husband, or of the husband by the wife, if the one who remains consents to it, connives at it, or in any way assists it. The petitioner must not only show desertion at the moment, but must show that he or she has been continuously deserted for three years or upwards. Petitioner in 1894 filed a petition for divorco from his wife on the ground of desertion sinco the year 1888. The evidence was that the respondent had left her home without any reason and that the petitioner had made no effort to trace her. He had no cause of

complaint against her nor she against him. Tho wife aftorwards wrote an affectionato letter to hor husband's daughtor by a former marriago in which she asked after tho family in a kindly way. The petitioner know of that letter but made no attompt to find his wifo or to induco her to return. Held, that the petitioner had connived at his wife's absence, and was not entitled to a decree. Held, also, that tho decreo should bo refused on the ground of delay. Langlands v. Langlands (16 A.L.T., 44) distinguished.—Taylor v. Taylor, 16 A.L.T., 148.

Desertion oommoncos when ono of the spouses without the consent of tho other terminates an existing matrimonial relationship, with the purpose- of forsaking that other, and permanently or indefinitely abandoning such relationship.

Desortion once commenced continuos until either the matrimonial relationship is re-established, or until tho deserting spouso by a sincoro and bond fide offer to re-03tablish it makes manifest a change in his or hor intontion, or until the deserted spouse consents to the separation, or otherwise indicates that he or sho is not dosirous of re-establishing tho matrimonial relationship.

An existing matrimonial relationship is not terminated so long as both parties bond fide recognise it as subsisting. I t does not end by reason of a separation brought about by pressure of external circumstances, e.g., businoss or health.

There is desertion if one of the spouses by his or her conduct intentionally drives tho other away, but such intention is necessary in order that such conduct shall amount to desortion.

When desertion has oneo commenced, consent to its continuanco will not be inforrcd from a refusal by the deserted spouse to livo with tho dosertor, when the conduct of tho deserter at tho time of tho refusal is such as to justify it.—Tulk v. Tulk ; Hoffmeyer v. Hoffmeyer, 1907 V.L.R., 64.

If an offer by tho deserting spouso to resumo relationship is not made till after tho expiration of the statutory period tho deserted spouso may disregard it.—76.

A separation betwoen husband and wifo brought about by the act of tho husband docs not constituto desertion unloss accompanied by an intention on his part to permanently put an end to cohabitation.

Whether the husband's conduct does indicate such an intention is a question of fact.

Whore tho separation is begun by the wifo withdrawing from tho matrimonial homo, owing to conduct on the part of tho husband whicli justifies her in leaving him, it is in offeet tho act of tho husband and not of tho wifo.

A separation, begun by tho husband under circumstances which show that at the time ho intended it to bo only temporary, may becomo desertion if continued by the husband with tho intention of making it permanent.

Where a separation was begun by a wife leaving her home owing to conduct on the part of tho husband which justified hor in withdrawing hor-self temporarily from his society, and the husband

No. 2691.] MARRIAGE ACT 1915. 3221

any such cause or excuse left him or her continuously so Marriage Act deserted during three years and upwards : 189-0-- -

afterwards, when the wife desired to return to him, absconded and held no further communication with her:

Held, that the husband was guilty of desertion. —White v. White, 7 C.L.R., 477.

Where a husband leaves his wife, absents himsolf .for several years, and neglects to provide her with means of livelihood, such absence not being necessary in the pursuit of his ordinary yocation—this is desertion or wilful separation without reasonable excuse.

A husband owes his wife both support and his society.

Pervorse and wayward temper in the wife is not of itself a reasonable excuse for desertion, even though she made no objection.—O'Connor v. O'Connor, 12 V.L.R., 324.

Whore a husband, against his wife's wish, ceases to reside with her, but allows her money for her maintenance : such allowance does not prevent his being held to have " deserted " her.— Sayers v. Sayers, 1 V.R. (I.E. & M.), 33.

A wife is entitled to more than pecuniary support; she is entitled to the society and protection of her husband, and the support must be such as to enable them to live together.—Wilkinson v. Wilkinson, 13 V.L.R., 568 ; and see Nimmo v. Nimmo, 3 A.J.R., 132.

To constitute desertion there must be an intention to desert. Mere separation and omitting to contribute to the wife's support would not amount to desertion by the husband, without such intention.—Mortagne v. Mortagne, 7 A.L.R. (C.N.), 13. And a wife who is physically or mentally unable to join her husband does not commit desertion merely by staying away.—Espie v. Espie, 1914 V.L.R., 654.

The fact of a husband, who has left his wife with the intention of permanently deserting her, being imprisoned before the period of threo years' desertion has been completed, and of his continued imprisonment until the commencement of a suit by her for a dissolution of marriage, does not prevent the time from running.—Drummond v. Drummond, 2 V.L.R. (LP. & M.), 78. _

If before their marriage the parties agree not to live together, this agreement, if acted upon subsequently to the marriage, must be put an end to unequivocally before any right accrues to one of them to institute a suit for divorce on the ground of desertion. . Semble, per Hood, J.—Such an agreement is void as against public policy.—Scott v. Scott, 26 V.L.R., 588.

After the ceremony of marriage was performed, but before cohabitation took place, a husband wilfully abandoned his wife without her consent, and did not return. In a petition by the wife for dissolution of the marriage on the ground of desertion:

Held, that to constitute desertion evidence of previous cohabitation was unnecessary.—Johnston v. Johnston, 21 V.L.R., 416. • A husband during cohabitation refused to contribute towards the support of his wife and family; and in consequence of this the home was

VOL. IV.—Q

broken up. He then left his wife to support herself and children entirely by her own exertion, but apparently was willing .to continue with her so long as she was willing to pay the expenses of their establishment; and he, eventually, without any attempt being made on either his part or on that of his wife to resume cohabitation, disappeared, and was lost sight of.

Held, that such facts constituted desertion on his part.—Heap v. Heap, 21 V.L.R., 140.

Where a wife leaves a husband against his will, because of his cruelty, although his cruelty may have afforded her a good excuse for so doing : Quwre, whether this amounts to desertion on his part.—Neilson v. Neilson, 18 V.L.R., 203; but see Malone v. Malone, 3 A.L.R. (C.N.), 87.

When there is an existing matrimonial relationship desertion cannot take place unless one of the spouses actively and wilfully .brings it to an end; when such relationship has already ceased, a refusal to re-establish it is not desertion. —Bailey v. Bailey, 1909 V.L.R., 299. • Wrongful denial of conjugal intercourse will not of itself constitute a matrimonial offence. But the wrongful refusal of intercourse is an element in the offence, and may when assisted by other facts afford evidence from which the required conclusion may be drawn. If a husband leaves his wife, intending to desert her, the distance to which he removes is immaterial; if he has abandoned the conjugal society and wrongfully brought an existing state of cohabitation to an end, this will constitute " desertion " although he may be living in the same house as his wife.— Drake v. Drake, 22 V.L.R., 391.

In a suit for divorce by the husband against his wife, the following facts were proved:—(a) For three years and upwards matrimonial intercourse had not taken place between the parties, owing to the refusal of the respondent, such refusal being wilful and deliberate, and without any cause or excuse ; (b) for three years and upwards the respondent had habitually locked herself from about the hour of 8 p.m. to 8 a.m in the bedroom which she occupied apart from her husband; (c) for three years and upwards the parties had not been on friendly terms, nor had they spoken to one another, owing to the conduct of the respondent; (d) the petitioner had been in noway to blame, and the respondent had acted contrary to his wishes ; (e) during the aforesaid period the parties had occupied the same building. - Held, that these facts constituted evidence of desertion, and that the petitioner was entitled to a decree nisi for dissolution of marriage.—Simons v. Simons, 24 V.L.R., 348.

Where the husband, though continuing to live in the same house with his wife, refused to have conjugal intercourse with her, or to allow her to occupy the same rooms with him : Held, desertion. —Maguire v. Maguire, 5 A.L.R. .(C.N.), 65.

Where one spouse has without just cause or excuse wilfully deserted the other, the insanity of the guilty spouse before the expiration of the statutory period does not prevent the period from running.—Laing v. Laing, 1911 V.L.R., 37.

3222 MARRIAGE ACT 1915. [6 GEO. V:

Marriage Act Q^ Q Q £]ie gronnd that the respondent has during three years

A husband, married, and residing in England, left England in consequence of financial reverses, and came to Victoria to better his fortunes and mako a new homo there. This he did with the consent of his wife, who practically agreed to join him in Victoria when ho had a suitable home to offer her. The petitioner established a suitable homo in Victoria, but his wifo refused to join him.

Held, that the iacts proved desertion.—Bird v. Bird, 1913 V.L.R., 123.

If a husband so behaves towards his wife that, havingregard to her safoty and welfare, she could not reasonably bo expected to live with him, she is entitled to leave him, and ho may be guilty of desertion.

A wife is not justifiod in leaving her husband merely becauso ho will not work to support her. —Hutchinson v. Hutchinson, 1908 V.L.R., 411.

A separation resulting from a wifo's refusal to recoive into her own house an idle, drunken husband, who will not maintain her, and proposes to live at her expense, does not, by itself, constitute desortion by the husband.—Parkin v. Parkin, 1914 V.L.R., 14.

See the note of this case under the last paragraph but one of this section.

A husband having for some yoars, without foundation, continually accused his wife of impropriety of conduct and of actual misconduct with other men, she threatened to leave him. He then mado overtures for a reconciliation which the wife rejected, but for two months afterwards cohabitation between them continued, and during that time the husband continued to make tho same charges against tho wife. She thereupon left him. After the separation the husband's conduct was such as to render the wife's return to him practically impossible. On a petition by the wife for dissolution of the marriage on the ground of desertion for three years and upwards :

Held, that an intontion to drive his wife away from him and to make tho separation between them permanent should bo imputed to the husband, and, therefore that tho desertion was established. —Moss v. Moss, 15 C.L.R., 538.

A husband and wife had lived apart for some years in pursuance of an informal unsealed agreement of separation. Tho husband then asked the wife to return, but she refused.

Held, that there was desortion.—Collard v. Gollard, 2 A.L.R., 21.

The effect of a separation deed as an answer to a petition for dissolution of marriage on the ground of desertion may be destroyed by conduct of the parties showing an intention to resume cohabitation.—Harbengerv. Harbenger, 21 V.L.R., 415.

In a suit for dissolution of marriage, it is competent for either party to dispute facts admitted by the recitals to a deed of separation entered into between them; although in an action founded on the deed, such recitals would bo conclusive between the parties.—Jones v. Jones, 11 V.L.R., 130.

A deed of separation, containing a covenant that matrimonial offences prior to the deed shall not be relied on by either party as grounds for divorce, is no bar to a wife's petition for divorce on the ground of such past offences whoro the

respondent has entirely repudiated the deed, and. in effect, expressed his intention to disregard it. —Richardson v. Richardson, 1913 V.L.R., 124.

In December, 1902, a husband deserted his wife and child. In December, 1903, a doed of separation was executed, by which the husband and wife agreed to live apart, and covenanted not to molest one another, and tho husband covenanted that tho wife should have tho custody of the child, and that he would pay certain weekly sums for the maintenance of tho child. The husband paid nothing at all under tho doed. The wife petitioned for dissolution of her marriago on the ground of desertion, commencing in December, 1902.

Held, that the non-performanco by the husband of his obligations under the deed did not deprivo it of its effect as a licence to him to livo apart, and that the deed was therefore an answer to the desertion.

A deed of separation is not necessarily a permanent bar to obtaining dissolution of marriage on the ground of desortion, and, if the licence to livo apart be effectually rovoked, desertion would then commence.—Mackenzie v. Mackenzie, 190G V.L.R., 416.

The parties to a suit for dissolution of marriago were married in 1879, and about a yoar afterwards the wife, against the husband's wish, withdrew from cohabitation in circumstances sufficient to constitute desertion. After suoh desertion had continued for about four weeks, the petitioner executed a deed of separation prepared by a solicitor under tho wifo's instructions, and the deed was left in her possession. Held, that, although the deed might havo been improvidently executed by tho husband, it intimated to the wife that he did not object to her thenceforth living apart, and as ho had never recalled such consent, or told her ho would not be bound by the deed, or requested her to return to him after its execution, it was effectual to terminate the desertion.—Humphries v. Humphries, 18 V.L.R., 190.

A deed of separation is no answer to a petition for divorce on the ground of desertion where the Court is of opinion that tho respondent has set the deed at nought in such a way that the desertion cannot be regarded as attributablo to the permission given by the deed.—Jordan v. Jordan, 1906 V.L.R., 414.

A husband who had entered into a separation deed with his wife, who was living apart from him, covenanted with the trustees of the deed that sho should be entitled to live apart, and this provision was accordingly acted upon. Several years after he asked her to return to cohabitation. Held, that by so requesting his wife, the husband could not get rid of the effect of the deed, and that no desertion was begun by her refusal to return.— Synnot v. Synnot, 20 V.L.R., 408 ; and soo Hayle v. Hayle, 10 V.L.R. (LP. & M.), 59.

Where cohabitation ceased through desertion on the husband's part, and tho husband and wife afterwards agreed to live temporarily apart: Held, that the desertion could not be held to bo continued while tho agreement lasted; but

No. 2691.] MARRIAGE ACT 1915. 3223

and upwards been an habitual drunkard(a) and either Marriage Act habitually left his wife without the means of support/*) or *890" habitually been guilty of cruelty towards her,<c> or being dranVenness the petitioner's wife lias for a like period been an habitual neg?ec™lc!y ° drunkard and habitually neglected her domestic duties or I'endered herself unfit to discharge tliem :(d)

(c) On the ground that at the time of the presentation of the sentence for petition the respondent has been imprisoned for a period ofcnme' not less than three years and is still in prison under a commuted sentence for a capital crime or under sentence to penal servitude for seven years or upwards, or being a

semble, that if during such temporary suspension the husband should be guilty of unequivocal acts, demonstrating that he had taken advantage of it to break off his connubial relations, and had in fact abandoned his wife, desertion should be held to have commenced from the time of the commission of those acts.—Neilson v. Neilson, 18 V.L.R., 203.

The wife of an idle and drunken husband acquired a home for herself, and when the husband wished to live with her she refused to let him until he could support himself and her.

Held, that a separation resulting from such refusal did not amount to desertion on the husband's part.

Subsequently to such refusal, the husband left Victoria without informing the wife where he was going, and never afterwards communicated with her.

Held, that this amounted to desertion on the husband's part, and that the previous refusal of the wife to let him live with her at her expense was not conduct inducing or contributing to the desertion within the meaning of this section.— Parkin v. Parkin, 19 A.L.R., 572.

In 1894 a husband's petition for dissolution of his marriage on the ground of desertion was dismissed. At the same time a cross-petition by his wife for dissolution on the ground of misconduct was also dismissed. Marital relations between the parties were not resumed, although the husband made several attempts to induce the wife to live with him again. In 1898 the husband filed a fresh petition for dissolution on the ground of desertion.

Held, affirming a'Beckett, J., that no new desertion had occurred.—Belton v. Belton, 24 V.L.R., 977.

(a) The question whether a wife has during three years and upwards been an habitual drunkard and habitually neglected her domestic duties or rendered herself unfit to discharge them is a question of fact, and where in a suit by the husband for dissolution of marriage on the ground of such drunkenness and neglect of duties on the part of the wife there is a conflict of evidence, and the evidence of the petitioner, if believed, is sufficient to establish his case, a decision of the judge in favour of the petitioner will not be disturbed on appeal.—Moloney v. Moloney, 7 C.L.R., 615.

The words relating to habitual drunkenness in this sub-section do not include a person who is ordinarily sober but who occasionally gets drunk. —Standish v. Standish, 12 A.L.T., 155.

Semble, per Williams, J., that to support a charge of habitual drunkenness under this subsection it must be shown that the respondent is a confirmed and irreclaimable drunkard. Evidence of isolated acts of drunkenness, though periodically recurring, is insufficient.—Chaplin v. Chaplin, 16 A.L.T., 218.

Habitual drunkenness within the meaning of this sub-section may exist, although ineffectual attempts at reform have been made by the drunkard.—Watsford v. Watsford, 1 A.L.R., 54.

A wife presented a petition for dissolution of marriage on the ground that the husband had for three years and upwards been an habitual drunkard and habitually left her without the means of support. Subsequently she resumed cohabitation with him on his undertaking to reform, and on the understanding that if he again misbehaved she would go on with the petition. The respondent shortly afterwards resumed his old habits. The wife thereupon proceeded with the petition.

Held, that the subsequent misconduct of the respondent placed the petitioner in the position she occupied when she presented the petition, and that she was entitled to have the prayer of the petition granted.—Strong v. Strong, 1910 V.L.R., 122.

(6) Under this sub-section a wife not having separate estate may obtain a dissolution of marriage against her husband, an habitual drunkard for three years and upwards, who. allows her to be without any means of support during that period, even though she has been able to support herself, and has done so, and he has lived, or been willing to live, with her, the words "habitually left" not meaning here leaving in the sense of desertion. Qucere, whether the section would cover the case of a wife having sufficient separate estate to maintain herself in her husband's station of life.—Younger v. Younger, 16 V.L.R., 625.

(c) Semble, that evidence that the respondent, during drunken fits, ill-treated his wife will not by itself sustain a charge of habitual cruelty.—• Chaplin v. Chaplin, 16 A.L.T., 218.

(d) In a suit for dissolution of marriage by a husband against his wife, charging that, for a period of three years and upwards she had " been an habitual drunkard, and habitually neglected her domestic duties or rendered herself unfit to discharge them," all that is required is to prove that this conduct took place for a period of three years during their married life, which need not

Q 2


Marriage Act husband lias within five years undergone frequeut convic-1 8 9 0 - tions ( a ) for crime and been sentenced in the aggregate to

• impr isonment for three years or upwards and left his wife habitually without the means of suppor t :

violent assaults (d) On the ground t ha t within one year previously the &c respondent has been convicted of having a t tempted to

murder the petitioner or of having assaulted him or her with intent to inflict grievous bodily harm or on the ground tha t the respondent has repeatedly during tha t period assaulted and cruelly beaten the petitioner :*)

Adultery. (e) On the ground tha t the respondent being a husband lias

since the celebration of his marr iage and the eighth day of May One thousand eight hundred and ninety been guil ty of adultery in the conjugal residence or coupled with circumstances or conduct of aggravat ion^ ' or of a repeated act of adultery. (d )

be the three years immediately preceding the institution of the suit.—Hodgkinson v. Hodgkinson, 18 V.L.R., 394.

(a) Frequent convictions within the meaning of this sub-section are convictions recurring at such intervals as, regard being had to the periods of imprisonment undergone, indicate that the respondent has become an habitual criminal or of such a criminal character as to prevent him from discharging his duties as a husband.

The sole evidence from which such criminal character can he inferred is that afforded by convictions; evidence of criminal acts which did not result in convictions not being admissible.

On a petition by a wifo for dissolution of marriage i t was proved that the respondent was convicted in August, 1902, for forgery, and sentenced' to two years' imprisonment, and was again convicted in March, 1907, for conspiracy, and sentenced to two years and six months' imprisonment.

Held, that such convictions were not frequent within the meaning of this sub-section.—Kemp v. Kemp, 1907 V.L.R., 718.

A marriage took placo in 1880. On a petition by the wife for divorce, it was shown that in 1887 the husband was in gaol in Sydney, but for what period did not appear. In January, 1888, almost as soon as he was out of the Sydney gaol, he was in gaol in Adelaide for six months, and was released in July, 1888. In August, 1888, he was committed to gaol for three years, field, that having regard to the length of time for which he Was sentenced, as showing the nature of the crime, and that each of the last two sentences followed closely discharge, he had, within five years, undergone frequent convictions.—Richards v. Richards, 17 V.L.R., 758.

The words " within five years" do not affect the second branch of this sub-section relating to imprisonment for three years and upwards.— Williams v. Williams, 20 A.L.R. 176 ; 35 A.L.T., 178.

(6) To entitle a petitioner to relief on the ground'that the respondent has within the year prior to the presentation of the petition repeatedly assaulted and cruelly beaten her, tho assaults and

beatings proved must be of a gravo nature.— Worland v. Worland, 1910 V.L.R., 374.

Tho ground of divorce set out in this subsection, that the respondent has repeatedly during one year previously assaulted and cruelly beaten the petitioner, contemplates acts of physical cruelty.

Semble, it is not necess.iry for such acts to continue throughout the wholo period of ono year previously to the presentation of the petition.— Ruddell v. Ruddell {No. 2), 1911 V.L.R., 330.

To establish tho charge by a wifo undor this sub-section that her husband has " ropeatedly assaulted and cruelly beaten " her, it is not necessary to prove that the assaults or any of them have resulted in serious bodily injury to tho wifo.

At the hearing of a suit by a wife upon tho ground mentioned, the respondent sought to justify tho assaults by evidence that the wifo had on other occasions been guilty of laxity of c induct.

Held, that the evidence was not admissible, because (1) no misconduct was charged in tho answer; and (2) tho alleged improprieties would havo afforded no excuse or justification for beatings on occasions when no impropriety occurred.—Hocking v. Hocking, 17 A.L.R., 13.

(c) The seduction by a husband of his wifo's sistor comes within tho moaning of tho words " adultery, coupled with circumstances or conduct of aggravation " in this sub-section, and ontitles the wifo- to tho relief provided by tho soction.— Bryceson v. Bryceson, 2 A.L.R., 150.

The words " conduct of aggravation" in this sub-section refer to that which aggravates the ofionoe against tho wifo, and not against tho woman with whom tho oifenco is committed.

I t appeared that tho respondent, a polico constable, met A., and walked with hor, and in a lonely place handcuffed her and violated her, and this ono act rcsultod in tho birth of a child.

A. subsequently suod tho respondent for tho child's maintenance, and her ovidence was corroborated by certain documents, shown to bo in tho respondent's handwriting, arranging for a nurso, and forwarding a small sum of money. Tho court

(d) See next pago.

No. 2691.] MARRIAGE ACT 1915. 3225

If in the opinion of the Court the petitioner's own habits or conduct induced or contributed to the wrong complained of,<a) such petition may be dismissed.

A domiciled person shall for the purposes of this section include a deserted wife who was domiciled in Victoria at the time of desertion, and such wife shall be deemed to have retained her Victorian domicil notwithstanding that her husband may have since the desertion acquired any foreign domicil. No person shall be entitled to petition under this section who has resorted to Victoria for that purpose only.'6'

123 . Any husband may present a petition to the Court, praying that his marriage may be dissolved on the ground that his wife has since the celebration thereof been guilty of adultery.(c)

Marriage Act 1890. When divorce may be pronounced. Application of the word "domiciled."

Grounds for petition by husband for dissolution of marriage. lb. s. 75. 20 & 21 Vict. c. 85 s. 27.

of petty sessions made an ordor against the respondent, which was, however, quashed by the court of general sessions.

The Dopartmcnt for Neglected Children thereupon suod the respondent as having acknowledged the child as his, and obtainod an order against him, which was sustained on appeal to the Suprome Court. The respondent was thereupon dismissed from tho police force, and left Victoria.

Held, that having regard to tho notoriety and disgrace attending the matter, tho petitioner was entitled to a decree nisi on the ground of the respondent's adultery, coupled with circumstances or conduct of aggravation.—White v. White, 21 A.L.T., 76.

(d) On the hearing of a petition by a wife for dissolution of her marriago with tho respondent on the ground of a repeated act of adultery, it was shown that the wife had twice since the marriage become infected with a venereal disease. When finally ourod she had, on the ground of his misconduct, refused to further cohabit with respondent, who nevertheless continued to support her. Though the husband had never admitted, he had nover unequivocally denied, adultery, and though served personally with tho petition charging him with adultery, he did not defend. On the evidence the wife's conduct was free from suspicion.

Held, that these circumstances were sufficient to warrant the Court in granting a decree on the

f round of a repeated act of adultery.—Isles v. sles, 1906 V.L.R., 86. See Deanv. Dean, next page.

On the hearing of a wife's petition for a dissolution of her marriago on the ground of a repeated act of adultery on the part of her husband, the only evidence of a second act of adultery was a certified copy of an entry in the Register of Births, Brisbano, showing that a person describing himself in such a way as unmistakably to identify him as her husband registered the birth of an illegitimate child born in Queensland, of which he described himself as the father. The other facts in evidence raised no suspicion.

Held, that under tho circumstances the petition might be granted and an order nisi made.— Wright v. Wright, 1911 V.L.R., 28.

(a) Under the terms of a separation deed a husband and wife separated in January, 1890, and the wife rwent to England. On her return in November, 1890, her husband admitted having committed adultery in her absence, but cohabitation with the wife was resumed until February,

1891, when the wife left her husband, and refused to return. The husband was during three months guilty of cruelty to the wife on several occasions, but such cruelty was provoked by acts of violence on her part. Tho husband having presented a petition for divorco in 1894 on the ground of desertion, the wife presented a cross-petition for divorce on the ground of cruelty and adultery, and prayed for the custody of the child of the-marriage. °

Held, (1) that the cruelty and adultery were contributory causes to the wife's desertion, and that tho husband's petition must be dismissed, but (2) that the cruelty having been provoked by the wife, and the adultery condoned by subsequent cohabitation, the wife's petition must fail also.— Belton v. Belton, 16 A.L.T., 142. . '

A refusal by a wife to admit into her own house an idle drunken husband is not " conduct which induced tho wrong complained of" within the meaning of this section. The conduct referred to • in the section involves an element of misconduct. —Parkin v. Parkin, 1914 V.L.R., 14. See the note of this ease under the word " deserted " in paragraph (a) of this section.

(b) A wife, deserted by her husband in another country, who resorts to Victoria for the purpose of obtaining a divorce, is prevented by this section from obtaining relief under this section, although the husband has acquired a domicil in Victoria. —Long v. Long, 18 V.L.R., 792.

Tho parties to a suit by a wife for dissolution of marriage on the ground of desertion were married in Tasmania, and lived there until 1888 or 1889, when the husband with the wife's consent came to Melbourne, intending to send for his wife wherever he might settle. He sent her but little money, and in 1891 ceased to correspond with he r. He was served with the papers in the suit in Carlton, but did not appear. The wife came to Victoria in order to bring the suit. The husband was apparently resident in Victoria, having been in the colony for the past nine or ten years.

Held, that on these facts the wife was not entitled to a decree.

Held, also, that the words in the last paragraph of this section are words of absolute prohibition, and prevent any person from obtaining a divorce under this section who comes to Victoria for that purpose only.—Ledwell v. Ledwell, 26 V.L.R., 595 ; and see Oibson v. Gibson, 3 A.L.R. (C.N.),'66.

(c) As to the words "any husband," see Forster


Marriage Act 1890 «. 76.

124. Any wife(a) may present a petition to the Court, praying that her marriage may be dissolved ou the ground that since the celebra-

petition by wife tion thereof her husband has been guilty of incestuous adultery or of for dissolution o f - - . - _ _ ~ - _ . . _ . _ . marriage.

bigamy with adultery or oi rape or of sodomy or of bestiality or of

v. Forster, 1907 V.L.R., 159, cited under notes to section 122.

Proceedings for a dissolution of marriage are not authorized when the complainant is the committee of a lunatic, but a judicial separation may be granted.—Millar v. Annand, 2 W. & W. (I.E. & M.), 137.

A child was born in wedlock at such a time that its birth might have been accounted for by intercourse between the husband and wife, opportunities for such intercourse having existed. Tho husband, who was the petitioner, swore that during the period antecedent to and subsequent to and extending over the period in which the child must have been begotten, ho had no intercourse with his wife. Evidence was given by other witnesses of the relations which had existed between the husband and wife, of statements made by the wife, and of other ciroumstances, all of which was corroborative of the evidence of the husband. Held, that the Court might find that adultery was proved. —Brady v. Brady, 15 A.L.T., 16.

Upon a petition for dissolution of marriage on the ground of the wife's adultery, the Court will exercise jurisdiction to dissolve the marriage, although it was of a minor without the required consent, and upon a false declaration.—Ghillijer v. Gullifer, 6 V.L.R. (I.P. & M.), 109.

On the trial of an issue of adultery, in a suit for dissolution of marriage, a witness called to prove the fact of adultery cannot, in examination in chief, be asked whether ho believes that the respondent committed adultery; but, semble, that such question may be put on cross-examination.— Fisher v. Fisher, 3 V.L.B. (I.P. & M.), 86.

In a suit for dissolution of marriage, a witness cannot be asked in examination in chief his opinion as to whether the respondent and corespondent committed adultery.

In a suit for dissolution of marriage, where the petition alleged that the adultery complained of took place on a specific date, evidence regarding another act of adultery with tho same person at a much later date ia inadmissible as not being relevant to the issue.

In a suit by husband against wife for dissolution of marriage on the ground of adultery with a co-respondent who does not appear, evidence of a statement by him is not admissible on a jury trial.

In a suit by husband against wife for dissolution of marriage on the ground of adultery with a corespondent, evidence of acts and words of the respondent in connexion with another man which occurred six months later than the latest alleged act of adultery is inadmissible.—Matpas v. Malpas, 11 V.L.R., 671.

Great and even suspicious caution will be observed by the Court in dealing with tho uncorroborated evidence of a petitioner in suits for dissolution of marriage, or for judicial separation, as to the adultery or cruelty alleged, more especially in cases where further evidence is easily procurable, or where the charge is denied by tho

respondent.—Cremar v. Cremar, 12 V.L.R., 738. The Court may grant a docree for dissolution

of marriage against an adulterous wifo on her own uncorroborated confession, but will only do so in tho absenco of any reasonable grounds for suspicion as to the truth of such confession.—Lake v. Lake, 2 A.L.R., 313.

When tho only evidence of adultery is afforded by tho admissions of the wifo and the co-respondent mado in the prosonco of ono another, of tho petitioner, and tho petitioner's proctor, at tho office of a solicitor, who appears to havo been consulted by the co-respondent, tho Court may act upon such ovidence.—Staplelon v. Stapleton, 21 V.L.R., 138.

A child was born in wedlock, of which the husband might have been tho father, but the facts rendered this highly improbable. Held, that the Court might find that adultory was provod. A letter written by tho co-respondent is not evidonce of adultery against the wifo, but tho adultery having beon provod is evidence against the corespondent that he was the adultorer.—Brady v Brady, 15 A.L.T., 16.

Tho fact that a petitioner has had a previous petition against his wifo dismissed on the ground that he was guilty of adultery is no bar to a fresh petition against his wife and the same co-respondent wherein fresh acts of adultory sinco tho dismissal of the first petition aro ohargod.—Weeding v. Weeding and Hose, 16 V.L.R., 134; and see Trestrail v. Trestrail, 3 W.W. & a'JB. (I.E. & M.), 90 ; Seehusen v. Seehusen, 7 V.L.R. (I.P. & M.), 149 ; Oaisjord v. Gaisjord, 5 A.L.R. (C.N.), 65.

(a) See Pinchin v. Pinchin, and other casos, noto to heading of Part VI.; and as to the words " any wife," see Forster v. Forster, 1907 V.L.R., 159, cited in note to section 122.

The fact that a wife found herself infected with venereal disease shortly after intercourse with her husband, and that there is no reason to doubt her chastity, is not sufficient to warrant tho Court in drawing tho inforenco that tho husband had boon guilty of adultery. In such a case the petitioner was allowed an option to take a decree for judicial separation, or to adduce further evidenco of adultory.—Dean v. Dean, 5 V.L.R. (I.P. & .M.), 116. See Isles v. Isles, last page.

Where the alleged adultery was supported solely by the uncorroborated evidence of the petitioner, and was directly contradicted by tho respondent:

Held, that it would bo unsafe in the highest degree to act only on the ovidence of one of the parties so deeply interested in the caso as tho petitioner, and that tho adultory was not proved. —Beck v. Beck, 1 W. & W. (I.E. & M.), 190.

In 1896 a wife's petition for dissolution of marriage on the ground of repeated acts of adultory by her husband was dismissed because tho evidence was inconclusive.

Held, on a subsequent petition by tho wife for dissolution of marriage on the same ground of adultery and on tho ground of dosertion, that tho

No. 2691.] MARRIAGE ACT 1915. 3227

adultery coupled with such cruelty^ as without adultery would l i a v e Marriage Act entitled her to a divorce a mensa et thoro under the law existing "™• v.ct

previously to the thirteenth day of June One thousand eight hundred c 85 s. 27. ' and sixty-five in England or of adultery coupled with desertion without reasonable excuse for two years or upwards.(6)

125. For the purposes of this Act incestuous adultery shall be taken Meaning of to mean adultery committed by a husband with a woman with whom if !XiteryUand of his wife were dead he could not lawfully contract matrimony by reason bigamy, of her beiug within the prohibited degrees of consanguinity or affinity; j£*""° and bigamy shall, be taken to mean marriage of any person being married to any other person during the life of his or her former wife or husband, whether the second marriage has taken • place within the dominions of His Majesty or elsewhere.

126. (1) Upon any petition for dissolution of marriage presented Adulterer by a husband and charging adultery the petitioner shall make the alleged co-respondent, adulterer a co-respondent to the petition unless on special grounds allowed n.». 78. by the Court he is excused from so doing.(c> Ib-B-28-

dismissal of the first suit operated as an estoppel betwoen the parties as to^tho adultery.—Kelly v. Kelly, 25 V.L.R., 174.

(a) Acts of violence exercised by a husband > towards his wife while in a state of intoxication frequently repeated during a long interval of time, and constituting a cumulative series of acts of misconduct, leading to the inference that the same state of things will be continued in future, amount to such legal cruelty as will support a petition for dissolution of marriage on the ground of adultery and cruelty.—Cremar v. Gremar, 12 V.L.R., 738.

In a suit by the wife for dissolution of marriage on the ground of adultery and cruelty, it was proved that the respondent had, on one occasion only, used physical violence to the petitioner, but had frequently used insulting language to her, in the presence of her children and servant, and had since the suit gone to San Francisco with another woman and two children of his by her, leaving the petitioner wholly unprovided for.

Held, that though neither the one act of violence nor the recent desertion would alone have justified a decree, yet that, taken in connexion with the respondent's previous and subsequent conduct, they formed a sufficient ground for a dissolution of the marriage.—Campbell v. Campbell, 5 W.W. & a'B. (I.E. & M.), 59. See eases under section 111.

(b) A husband separated from his wife and remained away for three years. He furnished her with some money, but she declined to live with him again unless he prepared a home for her. In a suit against him for divorce on the ground of adultery and desertion, the Court held that the wife was entitled to more than mere support; that it must be such as would enable them to live together.—Nimmo v. Nimmo, 3 A.J.R., 132.

A wife is entitled to more than pecuniary support; she is entitled to the society and protection of her husband, and the support must be such as to enable them to live together.—Wilkinson v. Wilkinson, 13 V.L.R., 568.

See cases as to desertion in notes to section 122.

(c) A petitioner in his petition charged his wife with having committed adultery "wi th one, T-, and other persons unknown to him." No order had been obtained excusing the petitioner from making these other persons co-respondents. Before the answer was delivered the respondent applied to have the petition dismissed, on the ground that the petitioner had not obtained the order of the Court excusing him from making these unknown persons co-respondents. Held, that the suit had not reached the stage at which it was too late to obtain an order dispensing with these unknown persons as co-respondents.—Bowring v. Bowring, 14 V.L.R., 119.

Petitioner applied by summons for an order excusing him from making any person a corespondent to the petition. Respondent had been served with the summons, but had not been served with the petition. Held, that until the petition was served on her respondent was not a party to the suit, and hence the summons could not be served on her.—Harley v. Harley, 17 V.L.R., 513.

Where, in a petition by a husband for dissolution of marriage, allegations are made of the respondent's adultery with a person unknown, but the petitioner fails to comply with the provisions of this section, the Court will not dismiss the petition, even although the pleadings in the suit are closed, but will prevent the suit from being listed for trial until the petitioner either complies with the section or amends the petition by striking out all reference therein to the alleged unknown adulterer.—Bartlett v. Bartlett, 21 V.L.R., 366.

On the trial of a petition by a husband for divorce on the ground of adultery with a corespondent, the jury found that there had been no adultery with the co-respondent. Afterwards, on an application that the petition might be amended so as to allege adultery of the wife with some person unknown, and that the divorce might be granted on that ground : Held, that although the wife had undoubtedly committed adultery, yet, if the petition was amended, an application


Marriage Act 1890. Court may direct that person with whom adultery of husband is alleged should be made respondent. Question of adultery may be tried by jury. Court to satisfy itself as to facts alleged and to inquire into any counter-charge. lb. s. 81. lb. s. 29.

(2) Upon any petition for dissolution of marriage presented by a wife and charging adultery the Court if it sees fit may direct that the person with whom the husband is alleged to have committed adultery be made a respondent."1'

(3) And the parties or any of them may insist on having the contested matters of fact in relation to any such charge of adultery tried by a jury as hereinafter mentioned.*6'

127. Upon any petition for dissolution of marriage, it shall be the duty of the Court to satisfy itself, so far as it reasonably can, as to the facts alleged(c) and also to inquire into any counter-charge which may be made against the petitioner.

would be necessary to dispense with the making of any person co-respondent, and, therefore, that the petition should be dismissed.—Russell v. Russell, 23 V.L.R., G3.

Where the name of the co-respondent has been omitted from the title of the petition, but is mentioned in the body of the petition, the petition does not require amendment, but the citation must be amended and served again.—Fisher v. Fisher, 2 V.L.R. (LP. & M.), 102.

In one case, though a judge's order had been obtained dispensing with a co-respondent, tho Court required the petitioner at tho trial to satisfy the Court that such order was necessary.—Kerr v. Kerr, 2 V.L.R. (LP. &. M), 101.

Where in a petition by a husband against his wife on the ground of adultery, the petitioner has adopted a charge against a particular man, by whomsoever originally made, and has relied on it in his petition, and such man is known and can be served, the mere fact that at the time of the application tho petitioner has no evidence against such man is not sufficient special ground for making an order excusing the petitioner from making the alleged adulterer a co-respondent.—Richards v. Richards, 1911 V.L.R., 42.

As to timo for making the application to excuse, see Hunt v. Hunt, 11 A.L.R. (C.N.), 21, where an order was made some months after a decree was pronounced, but before it was drawn up ; the decree being dated aB of the later date.

Whero a person, who has been made a co-respondont to a petition for dissolution of marriage, was in fact, though not to tho petitioner's knowledge, dead before the institution of the suit, this section does not apply, and the proper course is to obtain an order to strike the name of the deceased off the record.—Rogers-Tillstone v. Rogers-Till-stone, 8 A.L.R., 7 ; 23 A.L.T., 114.

(a) Application on behalf of the petitioner to have the woman with whom the respondent is alleged to have committed adultery made a respondent refused. Semble, that portion of this section, which enables the Court to direct that the person with whom the husband is alleged to have committed adultery be made a respondent, is intended to enable a woman who has been assailed by a petitioner to obtain an order that she be made a respondent, so that she may be before the Court to protect herself.—Webb v. Webb, 22 V.L.R., 600.

(6) In an undefended suit for dissolution of

marriage, the Court has no jurisdiction to direct a question of fact raised by tho petition to be tried by a jury.—Howling v. Dowling, 9 V.L.R. (LP. & M.), 58; Bury v. Bury, 1 V.R. (LP. & M.), 20.

An application for a jury must be made within the proper time after the close of tho pleadings.

I t is not necessary to apply to a judgo for directions to set a suit for divorce down for trial without a jury. Cameron v. Cameron ((i A.L.T., 26) followed.—Stirling v. Stirling, 20 V.L.R., 456.

(c) The Court is required by this section, so far as it reasonably can, to cxamino into and ascertain for itself, and if necessary by inquiries instituted by itself, all the facts of evory case in which a dissolution of marriage is applied for, including facts not alleged in the pleadings, and which all the parties to a suit may havo a common interest, and desire to conceal from tho Court.—Malpas v. Malpas, 11 V.L.R., 670.

Held, that before a marriage was dissolved, it was necessary that tho Court, as well as the jury, should be satisfied that the case of tho petitioner had been proved.—Fisher v. Fisher, 2 V.L.R. (LP. &M.), 102; and sec Malpas v. Malpas, infra.

Held, that the Court would not in an undefended suit grant a decree for the dissolution ot a marriage whero tho marriage was proved only by the evidence of the husband or wife alone, withqut corroboration.—Dowling v. Dowling, 10 V.L.R. (LP. & M.), 49.

There is no inflexible rulo that a decree for divorce cannot bo granted on the uncorroborated testimony of a petitioner ; but the Court, before it makes its decree, will cautiously, closely, and oven suspiciously examine tho uncorroborated evidence of the petitioner in all cases, and will decline to act upon such uncorroborated testimony where further ovideneo is easily procurable.— Read v. Read, 1905 V.L.R., 424; and see Little v. Little, 4 A.J.R., 143, following Casey v. Casey (1 W. & W. (I.E. & M.), 34) and Beck v. Beck (1 W. & W. (I.E. & M.), 199).

In a suit by a wife against her husband for dissolution of marriage on the ground of adultery and desertion, the Court will act on a clear, distinct, and unequivocal admission of adultery by the husband, deposed to only by tho wife and her father, if satisfied that the cvidenco is trustworthy.—Arnold v. Arnold, 13 V.L.R., 249.

Great and even suspicious caution will be observed by the Court in dealing with the uncorroborated evidence of a petitioner in suits for

No. 2691.] MARRIAGE ACT 1915. 3229

128 . Upon any petition for dissolution of marriage charging adultery, it shall be the duty of the Court to satisfy itself, so far as it reasonably can, whether or not the petitioner has been in any manner accessory to or conniving at the adultery of the other party to the marriage(a) or has condoned the adultery complained of .(6)

129. In case the Court finds that a petitionfor dissolution of marriage is presented or prosecuted in collusion(c) with the respondents or either

Marriage Act 1890 s. 81. Upon petitions for dissolution charging adultery Court to satisfy itself as to connivance or condonation. 20 & 21 Vict, c. 8ft s. 20. If collusion found, petition to be dismissed.

dissolution of marriage or for judicial separation, as to adultery or cruelty alleged, more especially in cases when further evidence is easily procurable, or whore the charge is denied by the respondent. In a suit for dissolution of marriage on the ground of adultery and cruelty, where neither is "the suit defended nor the charge of cruelty denied by the respondent, and where there is no reason to suspect collusion, the uncorroborated testimony of the petitioner may bo sufficient to support the charge. —Cremar v. Cremar, 12 V.L.R., 738.

This section, together with sections 126 and 173, place the judge to whom applica'tion is made for a new trial, on the ground of the verdict being against evidence, in a similar position with similar duties and powers as the Court to which an application used to be made in its common law jurisdiction, and the Court ought to be satisfied with the verdict of a jury in the divorce jurisdiction, unless it can assign definite and strong reasons for dissatisfaction, amongst which is not to bo included tho fact that the Court itself would have como to a different conclusion.—Malpas v. Malpas, 11 V.L.R., 670.

The Court in an unopposed petition by a husband for dissolution of marriage on the ground of the adultery of his wife, has jurisdiction to cross-examine the petitioner, and to call witnesses to provo his collusion with his wife, and that ho himself has boon guilty of adultery, if on communication wHi the Court by tho husband of the woman with whom the petitioner is said to have committed adultery, it has reason to suspect collusion. And if upon such examination of witnesses, it believes that there has been such collusion and such adultery by tho petitioner, it will refuse to mako a decree nisi.—Kirk v. Kirk, 15 V.L.R., 118.

(a) Connivance implies consent, active or passive, and an intention on the part of the person charged with conniving that guilt should ensue.— Hayle v. Hayle, 10 V.L.R. (LP. & M.), 59.

A wife, without just cause, left her husband's house, and refused to return to it, or to allow him to live with her. Having reason to suspect her of adultery, the husband, for the purpose of obtaining proof of her guilt, secretly watched the house in which she lived. On one occasion ho saw the man whom he suspected enter the house in the evening, and leave at an early hour of tho following morning, and on another occasion, saw him in the act of adultery with the wife. He did not interfere on either occasion.

Held, in a suit by the husband for dissolution of marriaee on the ground of adultery, that these facts did not establish connivance.—Davis v. Davis, 2 C.L.R., 178.

(b) Condonation applies only to acts known,

and is always on condition that there bo no repetition, and no fresh act.

Tho Court is bound, in undefended cases, itself to consider the question of condonation before decree'ing a dissolution. The Court is not perhaps bound, in undefended cases, itself to consider the question of condonation before decreeing a judicial separation ; but if it do for itself elicit evidence of condonation, it should, before acting on such evidence, definitely attract the attention of the petitioner or her counsel to the importance of showing a revival.—Casey v. Casey, 1 W. & W. (LP. & M.), 34.

To establish condonation against a wife, much stronger evidence is required than to establish it against the husband. And whore tho only fact in evidence was the subsequent cohabitation of the husband and wife after she know of his adultery, and no opportunity was given to the wife at the trial of explaining tho fact, or showing that cohabitation was resumed under such circumstances as would in the case of the wife not amount to condonation, the Court held the condonation not proved.—Weeding v. Weeding, 13 V.L.R., 215.

Under the terms of a separation deed, a husband and wife separated in January, 1890, and the wife went. to England. On her return in November, 1890, her husband admitted having committed adultery in hor absence, but cohabitation was resumed until February, 1891, when the wife left her husband, and refused to return. The husband was, during three months, guilty of cruelty to tho wife on several occasions, but such cruelty was provoked by acts of violence on her part. The husband having presented a petition for divorce in 1894, on the ground of desertion, tho wife presented a cross-petition on the ground of cruelty and adultery, and prayed for the custody of the child of tho marriage. Held, (1) that the cruelty and adultery were contributory causes to the wife's desertion, and that the husband's petition must be dismissed; but (2) that the cruelty having been provoked by tho wife, and the adultery condoned by subsequent cohabitation, the wife's petition must fail also.—Belton v. Belton, 16 A.L.T., 142.

Where condonation of adultery has been obtained by a false pretence of repentance, the original offence may be revived, although there is only a presumption of a subsequent offence.

A condoned matrimonial offence may be revived by a subsequent offence of a different kind.— Jordan v. Jordan, 1913 V.L.R., 72.

(c) The mere fact that the respondent in a divorce suit is not adverse, is not sufficient to constitute collusion with the petitioner.—


of them or with any person liable to be made a respondent under the provisions hereinbefore contained, the Court shall dismiss the petition.

130. Upon any petition for dissolution of marriage charging adultery, in case the Court finds that the petitioner has during the marriage been accessory to or conniving at the adultery of the other party to the marriage or has condoned the adultery complained of, the Court shall dismiss the petition, unless on some ground not involving adultery the petitioner is entitled to relief.

Cases in which 1 3 1 . (1) The Court shall not be bound to pronounce a decree of refuse to decree dissolution of marriage(a) if it finds that the petitioner has during the dissolution. marriage been guilty of adultery,(l) or if the petitioner in the opinion

Marriage Act 1890 «. 82. 20 & 21 Vict, c. 85 s. 30. If adultery charged is found to have been connived at or condoned, petition for dissolution to be dismissed. lb. «. 82. lb. a. 30.

Treacy v. Treacy, 3 W.W. & a'B. (I.E. & M.), 85. (a) This section applies, to all decrees of dis

solution under the Act.—Duncan v. Duncan, 29 V.L.R., 442.

(b) In a suit for dissolution of marriage by husband against wife, on the ground of adultery, the court in exercising its discretion under this soction, where the petitioner himself has been guilty of adultery, will have regard to condonation thereof by the respondent, if proved in evidence, although not pleaded by tho petitioner. To establish condonation against the wife much stronger evidence is required than to establish it against the husband. Adultery of the husband petitioner, proved in a suit for dissolution of marriage, may form a discretionary bar to the petitioner's relief, although it has been condoned by the respondent. As a general rule, where the petitioner has himself been guilty of adultery the petition should be dismissed, relief only being given where there are palliating circumstances, or something special in the particular case to call for the exceptional interposition of the Court in -the poti-tionor's favour.—Weeding v. Weeding, 13 V.L.E., 215.

Adultery by the husband petitioner, although condoned by the respondent, does not relieve tho Court from the duty of inquiry and the exercise of the judicial discretion imposed on it by \a.w.—Hayle v. Hayle, 10 V.L.R. (I.P. & M.), 59. •

In an undofended suit for dissolution of marriage brought by the wife against the husband on the grounds of desertion, habitual drunkenness, and cruelty, these grounds wore proved, but it appeared that after one of the times on which the husband had left tho petitioner without means of support, she had gone to a brothel and lived there for some months as a prostitute, that her husband knew of this, and visited her there to endeavour to get from her money the proceeds of tho life she was leading, and that subsequently he and she had again lived together for some months as man and wife.

Held, that as the husband, who was the person wronged by her adultery, connived at it, and afterwards condoned it, the Court should not oxerciso the discretion which it had under this section by refusing the petitioner the relief asked.—Hariley v. Hanley, 18 V.I/.R., 646.

In the exercise of the powers conforred the Court must have rogard, not only to tho rights and liabilities of the matrimonial person wronged and of the wrong-doer rospeetivoly inter se, but also to the interests of society and public morality; and the Court will therefore raroly exerciso such powers in favour of thoso who themselves have been guilty of matrimonial infidelity.

I t is the duty of a petitioner to make a full and clear disclosure of all tho material facts relating to the matrimonial lifo, including any act of misoonduct on his or her own par t ; and if the Court becomes aware of any failure to do so it should dismiss the petition.—McRae v. McSae, 1906 V.L.R., 778.

The Court in exercising the discretion conferred on it by this soction not to pronounce a decree dissolving a marriage " if it finds that the petitioner has during tho marriago boen guilty of adultery" should endeavour to promote virtue and morality and to discourago vico and immorality, but the exerciso of tho discretion must in each case depend upon tho facts of tho particular case.

The mere poverty of a doserted wife is not a fact sufficient to excuso such adultory.

Tho continued adulterous intercourse of a deserted wife right up to tho time of tho presentation and hearing of the petition is a fact sufficient to warrant tho Court in refusing to exor-ciso this discretion. Mulder v. Mulder (1906 V.L.R., 388), not followed.—Aldred v. Aldred, 1908 V.L.R., 58.

A wife petitioner for a divorco on tho ground of desertion admitted that sho had committed adultery with a man and that this man was paying the costs of the proceedings. Tho desertion was proved. Tho Court rofusod a decree.

The principles under which tho discretion of tho Court will be exorcised under this section discussed.—Maker v. Maker, 27 V.L.R., 147.

That the refusal of a decree would probably have tho effect of conducing to irrogular relations injurious to society may bo taken into consideration as ono of the reasons for not setting up the discretionary bar against a petitioner who has committed adultery.—Harvey v. Harvey, 1911 V.L.R., 345.

No. 2691.] MARRIAGE ACT 1915. 3231

of the Court has been guilty of unreasonable delay(a) in presenting or Marriage Act prosecuting the petition or of cruelty towards the other party to the 20 &*21 Vi'ct

marriage. °- 85 s. si. (2) And in the case of a petition charging adultery the Court shall not

be bound to pronounce a decree of dissolution of marriage on any ground involving adultery if it finds that the petitioner has during the marriage been guilty of having deserted or wilfully separated himself or herself from the other party before the adultery complained of and without reasonable excused or of such wilful neglect or misconduct as has conduced to the adultery.<c>

(a) Where a husband has waited several years after the discovery of his wife's adultery, and the Court has reason to believe that his real motive for not at once instituting proceedings was that his church would not allow him to marry again after procuring a divorce, such conduct will bo regarded as "unreasonable delay" within the meaning of this section. Quavre, whether religious scruples, entertained bond fide at the time of the discovery of the adultery, as to the propriety of the dissolution of the marriage, would excuse a delay otherwise unreasonable.— O'Connor v. O'Connor, 12 V.L.E., 324.

Whero the petitioner was nearly blind and unable to work at his trade, the delay was held to be sufficiently excused.—Daniel v. Daniel, 3 A.J.R., 132.

A wife, having been deserted by her husband in 1883, petitioned for a divorce on the ground (inter alia) of desertion in 1898. Held, that she had not been guilty of " unreasonable de lay" within the meaning of this section.— Pinchin v. Pinchin, 4 A.L.E., 211 ; 20 A.L.T., 54.

The " d e l a y " in presenting a petition for divorce, sufficient to induce the Court to exercise its discretion under this section against the petitioner, must be that sort of delay which shows that the petitioner either has been insensible to the loss of his wife, or is insincere in his complaint or has acquiesced in or condoned the injury to him.

Semble, that such delay may be more readily excused in a caso where desertion is the ground of the petition than where adultery is the ground.

A petitioner explained a delay of thirteen years in presenting a petition for divorce on the ground of desertion, on the grounds that during that period she was without sufficient means to institute the petition, and that she thought her husband might some day return to her.

Held, that the petitioner's delay was not of such a character as to deprive her of her right to a decree.—Hutchinson v. Hutchinson, 1907 V.L.K., 211.

(6) Where a husband leaves his wife, absents himself for several years, and neglects to provide her with means of livelihood, such absence not being necessary in the pursuit of his ordinary vocation, this is desertion or wilful separation without reasonable excuse, and is wilful neglect conducing to her adultery (first committed after such desertion) within the meaning of this section, even though the wife had a father with

whom she could have lived, the husband being aware that she did not and would not remain in her father's house.—O'Connor v. O'Connor, 12 V.L.R., 324.

On a petition by a husband for divorce where the adultery was proved, but the petitioner had deserted his wife in London shortly after the marriage, the Court refused a decree of dissolution but granted a judicial separation.—Schaefer v. Schaefer, 3 A.J.R., 132.

(c) A husband and wife had residing with them a lodger, with whom, on one occasion, the husband saw his wife indecently familiar. He remonstrated with her, left the house, and did not return, but allowed the lodger to remain. The wife subsequently committed adultery with the lodger, and afterwards went through the form of marriage with him. On petition by the husband for dissolution of marriage, on the ground of his wife's adultery: Held, that as the husband was apparently of weak intellect and seemed to have been deeply pained by his wife's misbehaviour his conduct, though it would, under ordinary circumstances, have been regarded as a reason for refusing a decree, could not be said to be " wilful" misconduct under this section.—Trevelein v. Trevelein, 17 V.L.R., 727.

A husband is not bound to entertain suspicions, but he ought not to put his wife in a position of temptation, and if he is aware that she has fallen into such a position and is meditating to do wrong, he is bound to take steps to the utmost of his ability to remove her from that position or prevent her from carrying out any wrong intentions. His omission to do so amounts to misconduct within the meaning of the Act.—Bathgate v. Bathgate, 2 W. & W. (I.E. & M.), 129.

The mere mistake of a husband in allowing his wife, suffering from habitual drunkenness, to leave his protection for four years, even though it has led .to her subsequent infidelity, is not such wilful neglect or misconduct within the meaning of this section as to disentitle him to relief ; nor is the allowing her, after he believes her to have committed adultery, to keep a boardinghouse for male boarders necessarily such an act as to disentitle him to relief, where the adultery complained of was not with any of the boarders though it took place at the boardinghouse.— White v. White, 13 V.L.R., 239.

For circumstances where the husband's misconduct was not considered to conduce to

0


Marriage Act 132 . Every decree of dissolution of marriage shall in the first 1? ' ! . instance be a decree nisi^ not to be made absolute till after the expiration Decree m«i • i • i i i r i

tor dissolution of such time not less than three months from the pronouncing thereof as the Court shall by general or special order from time to time direct.

(a) The date of marriage may be left out of the decree nisi for dissolution in cases where there is

reason for doubt as to the aotual date.—Hartley v. Hartley, 18 V.L.R., 646.

Note (c) continued from previous page.

the adultery of the wife, see Maxwell v. Maxwell, 6 V.L.B. (LP. & M.), 117.

And for circumstances in which it was hold so to conduce, see O'Connor v. O'Connor, 12 V.L.R., 324, supra.

And see Myles v. Myles, 1 W. & W. (I.E. & M.), 204, and Boulslon v. Roulston, ib. 206.

The Court has discretion to refuse a divorce where there is misconduct conducing to tho adultery though there may not have been absolute cruelty conducing thereto.—Bythell v. By-thell, 3 A.J.R., 68.

Visits to brothels by a petitioner who i9 seeking a dissolution of marriage on the ground of his wife's adultery, constitute misconduct conducing to the adultery within the meaning of this section, without entering into the question of whether or not adultery was committed by the petitioner in the course of such visits.— Jackson v. Jackson, 22 V.L.R., 263.

On a petition for divorce by a husband, the Court found that the respondent had been guilty of adultery with the co-respondent, that the petitioner had been guilty of cruelty to tho respondent, and that tho cruelty did not conduce to the adultery ; on such findings the Court exercised its discretion under this section, and granted the order nisi, subject to the petitioner making provision for tho respondent during her life-time, and so long as she should remain unmarried.—Kenny v. Kenny, 22 V.L.R., 267.

The " neglect" at which this section aims, is tho knowingly and without reasonable excuse leaving a wife in such association as affords temptation and facility for adultery unaided by tho society, control, and advice of her husband. Whcro a wife commits adultery, which • is condoned, and subsequently commits other acts of adultery, the Court can take the husband's conduct into consideration for the purpose of seeing whether ho was guilty of such wilful neglect or misconduct as conduced to tho first adultery.— Richardson v. Richardson, 22 V.L.R., 62.

In considering whether a husband petitioner has been guilty of " wilful neglect or misconduct " within the meaning of this section, the Court of Appeal will look at all the circumstances of the case, and is not bound by the findings of fact by the primary judge. Adultery of respondent with a person other than the co-respondent committed previously to that charged in the suit and condoned by the husband should not, on a petition by the husband, bo taken into consideration by the Court when determining whether the petitioner has been guilty of wilful neglect or misconduct conducing to tho adultery charged in tho suit. A husband and wife were married in 1878.

In 1885 tho husband consented to his wifo going alone to Sydney to fulfil a theatrical engagement. While there sho committed adultery with one G. On her return to Melbourne her husband condoned this adultery. She afterwards left him, and committed adultery with one H. in 1893 and with one B. in 1895. On a petition by tho husband for divorce on the ground of adultery with H. and B. the adultery was proved. Held, per Williams and a'Beckett, J J. {Hood, J., dissenlienle), (hat the Court of Appeal cannot draw ad verso inferences of fact against the petitioner which tho judge who tried the case had not drawn, and (reversing tho judgment of Madden, C.J.) that on the evidenco before (he Court there was not such wilful neglect or misconduct of tho petitioner within the meaning of this section as would disentitle him to a decree.—Richardson v. Richardson, 22 V.L.R., 342.

On a petition by tho husband for divorce, it appeared in evidenco that thoro had boon a scries of three distinct acts of adultery by tho wife, each successively condoned by tho husband without reference to any act of penitence on tho part of tho wife ; that being fully alivo to tho wife's tendency, the husband, when she left his house, took no steps to ascertain where sho had gone, or what she was doing ; and that the act of adultery on which the petition was based was committed during such absence.

Held, that tho petitioner had been guilty of misconduct conducing to the adultery.

With reference to a charge of having, by his conduct conduced to his wife's offence, it is right that the whole conduct of the petitioner, in reference to his marital duties, from the contract of marriago to tho commencement of tho suit, should be considered.—Terry v. Terry, 1 W.W. & a'B. (I.E. & M.), 78.

Where, in pursuance of an anto-nuptial agreement, the husband leaves his wife immediately after the celebration of tho marriago, without consummating it, but keeps her supplied with money, as far as his means admit, and corresponds with her—such conduct cannot bo considered as conducing to adultery committed by her, in his absence, so as to preclude him from a deereo for dissolution of the marriage.—Osborne v. Osborne, 5 V.L.R. (LP. & M.), 112.

In a suit for divorce by a husband against his wife on tho ground of adultery with tho corespondent it was found that the respondent had committed adultery with the co-respondent, but that inasmuch as the petitioner had himself boon guilty of adultery and also of cruelty to his wifo in imparting to her a venereal diseaso tho petitioner was disentitled to the relief claimed, and

No. 2691.] . MARRIAGE ACT 1915. 3233

1 3 3 . Subject to the provisions of this Act'the Court, if it is satisfied Marriage Act that the case of the petitioner is established, shall(a) pronounce a decree CM *', which

nisi for dissolution of marriage. d?cree nisi for ° ' dissolution

is to be made. 134. On every decree nisi®) 'for dissolution of marriage the Making decree

Prothonotary shall indorse a notice that if the petitioner or respondent ^solu'«-shall contract marriage before such decree has been made absolute he or she will be guilty of bigamy.

135. The petitioner and respondent, where a decree nisi for dissolu- Decree absolute tion of marriage has been made, shall on the decree nisi becoming absolute Jft

s 9Q'

respectively be at liberty to marry again as if the marriage to which the decree relates had been dissolved by death.(c)

136. (1) Such decree nisi shall become absolute upon the Pro-Memorandum i . • i • • i T i i i making decree

thonotary entering on the petition a memorandum that he has made absolute when the decree absolute or upon being made absolute by the Full Court as Prothonotary hereinafter provided. *c' . Act

(2) Except as hereinafter by this section provided it shall not be iooe». 3. necessary for the petitioner to move that any decree nisi pronounced ^j^fl^ after the first day of August One thousand eight hundred and ninety be made absolute.

(3) At the expiration of the time limited by the decree nisi the Prothonotary shall enter the said memorandum, unless—

(a) pursuant to the provisions of section one hundred and forty of this Act matter in opposition to the final decree is then pending, or

(b) notice of appeal to the Full Court against the decree nisi or notice of appeal to the Full Court by the Attorney-General

' or other person intervening under the provisions of section one hundred and forty of this Act against the decision of the Court that the decree nisi shall stand unaffected has been filed with the Prothonotary, or

his petition was accordingly dismissed. After the damages against the co-respondent.—Weeding v. dismissal of the petition the co-respondent took Weeding, 16 V.L.B., 596. the respondent back to his house and resumed (a) a'Beckett, J., after reviewing the facts, his adulterous intercourse with her. The peti- said :—" On the whole I have come to the con-tioner, however, desired that the respondent elusion that the wife's conduct has been such as should resume her position as his wife, and a few the Act contemplated as entitling the husband to days aftor the dismissal of his petition, he pro- a dissolution of marriage. If I am satisfied as to ceeded with two friends to the co-respondent's this, as I am, the Act allows no discretion as to house and demanded his wife, told the eo-respon- withholding a divorce, unless in the opinion of the dent in the co-respondent's hearing that he would Court the petitioner's own habits or conduct havo her, and protested against his harbouring her induced or contributed to the wrong complained any longer. The co-respondent tried to shut the of. . . . I t is not competent for me to enforce door in his face, but was unsuccessful, and a moral obligations, or to withhold a legal right struggle ensued, in which the respondent joined . because it would be ungenerous of the petitioner and aided the co-respondent, with the result that to make use of it, and I must grant the relief they succeeded in forcibly ejecting the petitioner sought."—-Hodgkinson v. Hodgkinson, 2 A.L.R., from the house. He then left with his friends, 18 ; and see lrelon v. Ireton, ibid. and from that date determined to have nothing (6) An application to file and enter a decree more to do with his wife, but to watch for the nisi more than a year after t he pronouncement purpose of securing proof of further adultery of the decree should be supported by an affidavit between her and the co-respondent. Having showing there has been no resumption of co-obtained such proof he brought a fresh suit for habitation.—Pollett v. Pollett, 36 A.L.T., 61. divorce and the above facts were proved. . (c) A marriage before the decree nisi becomes

Held, that the petitioner was entitled to a absolute is void.—Moore v. Widdicombe. 4 W.W-decree nisi for dissolution of marriage, with & a'B. (L.), 109.


Marriage Act 1890

Any person entitled to ascertain if decree nisi has become absolute or been discharged and to certificate thereof. Marriage Act 1906 s. 4.

(c) the petitioner by writing under his hand has directed that the decree nisi shall not be made absolute.

(4) If at the expiration of the time limited by the decree nisi matter in opposition as aforesaid to the final decree is then pending, or if within the time limited by the decree nisi any such notice of appeal to the Full Court has been filed with the Prothonotary, the decree nisi shall not be made absolute except by the Full Court on motion made thereto, and the Prothonotary shall not enter the said memorandum.

(5) If the petitioner within such time gives such direction the decree nisi shall be thereby discharged and become ineffectual for all purposes and a memorandum that it has been discharged sha 1 be entered upon the petition by the Prothonotary.

(6) Immediately upon such discharge the Prothonotary shall use all reasonable means to communicate to the respondent the fact of such discharge, and in cases of difficulty the Prothonotary may obtain the direction of a judge of the Court.

1 3 7. Any person shall be entitled on payment of a fee of One shilling to search a t the office of the Prothonotary and ascertain whether the decree nisi has been made absolute or discharged, and if t he decree nisi has been made absolute or discharged, shall be entitled on payment of a fee of Ten shillings to receive a certificate signed by the Prothonotary t h a t the decree nisi has been made absolute or discharged (as the case may be). Such certificate shall in all courts and for all persons authorized to celebrate marriages be prima facie evidence of the mat ters therein mentioned.

Delayed 1 3 3 . The memorandum t h a t the decree nisi has been made absolute to have or discharged whenever made by the Prothonotary shall have relation

to and be operative from the date a t which i t ought to have been made.

relation back. lb. ». 5.

In cases of connivance strangers may oppose decree nisi if adultery chargod. Marriage Act 1890 s. 80. Costs of in tervent ion .

lb. S. 115.

139. (1) The Attorney-General, if he thinks fit, may oppose the petitioner's obtaining a decree nisi for dissolution of marriage.

(2) By leave of the Court or a judge any other person may oppose the petitioner's obtaining a decree nisi for dissolution of marriage on any ground involving adultery ; but no such leave shall be granted except upon an affidavit showing to the satisfaction of such Court or judge that there is reasonable ground to believe that the petitioner has been in some manner accessory to or conniving at the adultery.

(3) I n any case of intervention under this or the next succeeding section the Court may make such order as seems just as to the costs, whether of the Attorney-General or of any other person intervening or of any pa r ty to the proceedings, occasioned by the intervention.

Attorney- 1 4 0 . (1) By leave of the Court or a judge the Attorney-General or General may AT. / \ i n • T r i r i- i •

oppose decree any other personw shall m any proceeding for a decree of dissolution of marriage be at liberty, at any time before the expiration of the time limited by the decree nisi and in such manner as the Court by general or

Intervention after decree nisi. lb. 8. 84.

lb. s. 79.

(a) As to t h e meaning of t h e words " a n y person " in sootion 84 of the Marriage Act 1890. see Fitta v. Fitts, 20 V.L.R. , 401 , whero i t was decided

t h a t t h e words d id n o t includo a r e sponden t or co-respondent .

No. 2691.] MARRIAGE ACT 1915. 3235

special order in that behalf directs, to show cause why the decree nisi Marriage Act should not be reversed—

(a) on the ground that the parties to the proceeding have been acting in collusion for the purpose of obtaining the decree nisi contrary to the justice of the case, or

(b) on the ground that material facts have not been brought before the Court.

(2) On cause being so shown the Court shall deal with the case— (a) by directing that the decree nisi shall stand unaffected by such

intervention, or (b) by reversing the decree "nisi, or (c) by requiring further inquiry, or otherwise as justice may require.

1 4 1 . At any time after the filing of the petition and before the Before decree decree is made absolute any person may give information to the Attorney- absolute any General of any matter material to the due decision of the case, and the supply material Attorney-General may thereupon take such steps as he may deem necessary Att°o™ey-on to

or expedient. ^ ^

142 . On or after making a decree nisi for dissolution of security tor marriage the Court may if it thinks fit order that the husband shall to j6""°87. the satisfaction of the Court secure to the wife such gross sum of money 20&21 vict,. or such annual sum of money*") for auy term not exceeding her own °-8o s-32-life as, having regard to her fortune (if any) to the ability of the husband and to the conduct of the parties, it deems reasonable; and for that purpose may settle and approve or refer it to the Chief Clerk to settle and approve of a proper deed or instrument to be executed by all necessary parties; and the Court may in such case if it sees fit suspend the pronouncing of its decree until such deed has been duly executed; and upon any petition for dissolution of marriage the Court Alimony shall have the same power to make interim orders for payment ofpe. ' money by way of alimony or otherwise to the wife as it would have in a suit instituted for judicial separation.*)

(a) This section empowers the Court to order husband.—Carnaby v. Carnaby, 1 W. & W. a gross or annual sum to be secured for the benefit (I.E. & M.), 195. of the wife, but not to make a direct order on the A wife who obtains a decree of dissolution husband to pay a gross or annual or other periodical of marriage against her husband is entitled to sum to the wife.—Stephen v. Stephen, 17 V.L.R., alimony, but in the converse case she is not so 447 ; but see sections 143 and 150. entitled unless she brought property to the husband

Where a deed of separation had been entered on her marriage.—Maxwell v. Maxwell, 6 V.L.B. into, making a provision for the wife, but it was (LP. & M.), 117. doubtful whether such deed could be enforced For other oases as to alimony by way of per-after a dissolution of marriage by reason of the manent maintenance, see notes to section 143. wife's adultery, and where the wife had brought (6) Principles upon which alimony pendente no fortune to the husband, the Court refused to lite is allotted, considered. As in England the grant her permanent alimony.—Fisher v. Fisher, practice of decreeing alimony to be paid quar-3 V.L.B. (LP. & M.), 86. terly appears to have grown out of the circum-

A wife against whom a decree for dissolution stances that incomes there are mostly received has been pronounced may apply for permanent quarterly; and as incomes in this country are alimony, notwithstanding that she has filed no mostly received monthly, tho principle laid petition for permanent alimony, and her answer down in England is best preserved by departing does not state that any such application will be from the practice, and by directing the alimony made. At common law, a wife by her adultery here to be paid monthly.—Molesworth v. Moles-deprives herself of any right to bind her husband worth, 1 W. & W. (I.E. & M.), 57. for her support, and the same rule should be fol- Alimony pendente lite is usually payable lowed by this Court, save in exceptional cases, or from the service of the citation, and not from where the wife has brought a fortune to her the date of its return. A discretion is to be


Marriayc Act 1890 «. 88. Vower to order monthly or weekly payments to wife from husband on dissolution of marriage.

29 Vict. c. 32 s. 1.

1 4 3 . On or after making a decree nisi for-dissolution of marriage obtained against a husband who has no property on which the payment of any gross or annual sura can be secured to t,he wife, it shall be lawful for the Court to make an order on the husband for payment to the wife during their joint lives of such monthly or weekly sums for her maintenance and support as the Court thinks reasonable. Provided always that if the husband afterwards from any cause becomes unable- to make such payments, it shall be lawful for the Court to discharge or modify the order or temporarily to suspend the same as to the whole or any part of the money so ordered to be paid and again to revive the same order wholly or in part as to the Court may seem fit. Provided also that if the wife marries again or if there is any other jnst cause for so 'doing, the Court may on proof of that fact discharge the said order, or if there have been or are infant children in her custody may vary the same.*"'

exercised by the Court as to the intervals at which alimony is made payable. Some plaeo should be fixed by the Court at which the alimony should bo payable.—Davis v. Davis, 2 W. & W. (I.E. & M.), 124.

The Court has jurisdiction to award alimony pendente lite where the wifo is the respondent in a suit for divorce.—Fowler v. Fowler, 2 W. & W. (I.E. & M.), 126.

The proportion of ono-fifth of the husband's incomo is not always to be observed in allowing alimony pendente lite; the sources from which his income is derived aro to bo considered. Whore that income arises chiefly from trade profits, tho proportion should be lowor than whore derived from property.—Pardey v. Pardey, 2 W.W. & a'B. (I.E. & M.), 58. Tor a case where the Court took an average for a fluctuating income, seo Smith v. Smith, 3 A.J.R., 62.

Where children of the marriage are kept by the mother, it may be desirable that the question of their support should not be regarded in fixing the amount of alimony pendente lite to be awarded to her; provision for their maintenance may under Part VIII. be made distinct from tho alimony allowed to tho mother.— Sansom v. Sansom, 2 W. & W. (I.E. & M.), 147.

I t was held in ono case that tho Court had jurisdiction to order a respondent (tho husband) domiciled in a foreign country to pay alimony pendente lite to a petitioner.—Spkitt v. Splatt, 11 V.L.R., 300. But quaere, whether this is consistent with later decisions as to domicil being tho foundation of jurisdiction.

Whore a husband and wife at the time of the institution of a suit by the wife for the dissolution of the marriago are living apart under a deed of separation which contains a covenant by tho wife not to require the husband to pay any money for her maintenance the wife is not ontitled to alimony pendente lite.—Brooker v. Brooker, 1910 V.L.R., 488.

An attachment will be granted for nonpayment of arrears due under a decree for alimony pendente lite.—Hunter v. Hunter, 2 W. & W. (I.E. & M.), 123.

Where an application for alimony pendente lite is refused, the Court has a discretion

as to costs. Where a bond fide unsuccessful application is mado by the wifo for alimony pendente lite, she should bo allowed her costs; but whoro sho has suppressed and falsifiod facts in her affidavit in support of hor application for the purposo of misleading tho Court, she should be disallowed such costs.—Jonas v. Jonas, 16 A.L.T., 201.

(a) By a decree absolute for tho dissolution of a marriage it was ordered by consent that tho respondent should pay to tho petitioner a weekly sum of £4 for hor life, and that the petitioner should thoreout apply a sum sufficient for the maintenance and education of tho children. Held that, assuming this to bo an ordor for the paymont of alimony, tho Court had jurisdiction under a section corresponding to section 150 of this Act to make the order.— Stephen v. Stephen, 17 V.L.R., 447.

Tho principlo of Ward. v. H earns (10 V.L.R. (L.), 163) applies in an application to bring forward fresh evidence on an appeal from the ordor of a judgo granting permanent alimony. The Court will not, in fixing the rate of permanent alimony payablo by a husband respondent, considor ovidenco of expectations, but will bo guided entirely by ovidence of his present means.—Ashley v. Ashley, 24 V.L.R., 220.

In a suit brought in New South Wales for dissolution of marriago, tho petitioner asked for an order for pormanont maintenance; tho respondent failed to enter an appearanco in accordance with the rules of Court, but at tho hearing asked to be allowed to bo heard by his solicitor on the question of maintenance only. Tho judge rofused to hoar the solicitor, and mado an order for the payment of permanent maintenance.

Held, that, notwithstanding tho failure to entor an appearanco in the suit, tho respondent, in the absence of express provision to tho contrary, was entitled to be hoard, and tho order for maintenance, having been mado without hearing him, was bad.—Ulick v. Utick, 5 C.L.R., 400.

Eor other cases as to alimony by way of permanent maintenance, see note to soction 142.

No. 2691.] MARRIAGE ACT 1915. 323?

144. Where on the petition of a husband for dissolution of Marriage Act

marriage the alleged adulterer is made a co-respondent, or where on the whcn'aUe'ed petition of a wife the person with whom her husband is alleged to have adulterer f° committed adultery is made a respondent, it shall be lawful for the hem^X?™' Court after the close of the evidence on the part of the petitioner to gU™ussed from

direct such co-respondent or respondent to be dismissed from the suit, 2i&22Vict. if it thinks there is not sufficient evidence against him or her ; and in ° 1 0 8 s U -its discretion to award him or her costs.

145 . No person authorized by this Act to celebrate marriage shall NO person i n i I i • j_i • _p l _o compellable to be compelled to solemnize the marriage ot any person whose former solemnize marriage has been dissolved, or shall be in any maimer liable for Sivor'ceSd0f

solemnizing or refusing to solemnize the marriage of any such person, persons. PART VII.—REMEDIES AGAINST ADULTERER.

lb. s. 91. Ib. Proviso.

146. No action for criminal conversation shall be commenced in Action tor mm. _ , . , . con. abolished.

Victoria. «.s.92. Ib. s. 69.

147. Any husband may either in a petition for judicial separation Husband may or dissolution of marriage claim damages from any person ou fromaduiterer. the ground of his having committed adultery with the wife of such i>>.«. 93. petitioner; and such petition shall be served on the alleged adulterer o085s.l33!ct

and the wife unless the Court dispenses with such service or directs some other service to be substituted; and the claim made by every such petition shall be heard and tried on the fame principles in the same manner and subject to the same or the like rules and regulations as actions for criminal conversation were previously to the thirteenth day of June One thousand eight hundred and sixty-five tried and decided in courts of common law; and all the enactments herein contained with reference to the hearing and decision of petitions to the Court shall so far as may be necessary be deemed applicable to the hearing and decision of petitions presented under this enactment.

148. The damages to be recovered on any such petition shall in all ascertafn^â cases be ascertained by the verdict of a jury although the respondents jury ami paid or either of them may not appear ;(a> and after the verdict has been given dSiolfofthe6

such damages shall be paid or applied in such manner as the Court ;c™rt

M directs; and it shall be lawful for the Court to direct that the whole 01' See ib. s. 33.

The Court has power to grant attachment for 1912 V.L.R., 430. breach of an order for permanent alimony.— (a) Where damages are claimed, even if there is Gilchrist v. Gilchrist, 17 V.L.R., 724; and see no appearance for respondent or co-respondent, the Stephen v. Stephen, 17 V.L.R., 447. cause must be heard by a jury, and a petitioner

An order for permanent alimony, though claiming damages by his petition cannot forego wrongly made, is good until set aside, and an them at the hearing, but must obtain the sanction attachment for non-compliance with such order of a judge to amend the record before the cause will bo granted. Gilchrist v. Gilchrist (17 V.L.R., is set down for trial.—Tyers v. Tyers, 1 W. & W. 724) followed.—Nisbet v. Nisbet, 24 V.L.R., 340. (I.E. & M.), 63.

Whore there was no prayer for alimony Where damages were claimed and the case in the petition costs were refused.-—Beck v. Beck, set down for trial by a jury, but the petitioner 2 A.L.R. (C.N.), 317. • served notico of discontinuance of the suit not

The only ground for varying an order under having obtained leave to discontinue, the notice this section for the payment of permanent alimony was treated as an abandonment of the claim for is that the husband is unable to obey the order damages, and on failure by the petitioner to sot after proper allowance has been mado for the the suit down for hearing the other parties were living expenses of himself and family and for the permitted to set it down before a judge without cost of carrying on his business. The fact that a jury.—Harrison v. Harrison, 23 V.L.R., 336. the wife's financial position has improved is not a For form of issue in undefended suit, sea ground for varying the order.—Naylor v. Naylor, Hammil v. Hammil, 5 A.L.R. (C.N.), 53.

VOL. I V . — R


Marriage Act any part thereof shall be settled for the benefit of the children (if any) 1890- of the marriage or as a provision for the maintenance of the wife.

Provided that if such petition is dismissed, no damages shall be given to or on the behoof of any such petitioner.

Court may order 149. When in any petition presented by a husband the alleged cosUts.erertopay adulterer has been made a co-respondent and the adultery lias been ib. a. 95. established, the Court may order the adulterer to pay the whole or' any

part of the costs of the proceedings/0' 20 & 21 Vict. c. 85 8. 34.

Beforo or on making decree of judicial separation Court may make orders &c. as to custody maintenance &c. of children. Ib. s. 06. Ib. s. 35. Court may make the like orders in proceedings for nullity of marriage or dissolution of marriage.

PAET VIII.—PROVISIONS FOR THE BENEFIT OF CHILDREN AND AS TO PROPERTY.

150. (1) In any proceeding for judicial separation the Court may from time to time before making its decree make such interim orders and may in the decree make such provision as it deems just and proper with respect to the custody maintenance and education of the children the marriage of whose parents is the subject of such proceeding; and either before or in the decree may if it thinks fit direct proper proceedings to be taken for placing such children under the protection of the Court.'6'

(2) In any proceeding for nullity of marriage or dissolution of marriage the Court may from time to time before making the decree nisi make the like interim orders and may in the decree nisi make the like provision with respect to the custody maintenance and education of such children and either before or in the decree nisi may if it thinks fit give the like direction for proceedings for placing such children under the protection of the Court.<c>

(a) Where on a petition by husband for dissolution of marriage, tho Court found that the wife had committed adultery, but refused relief on the ground of the husband's adultery, the corespondent was ordered to pay the petitioner's costs in respect of tho issue of the wife's adultery. —Hayle v. Hayle, 10 V.L.R. (I.P. & M.), 59.

Where, by reason of condonation, &c, no redress can be obtained against tho co-respondent, he ought not to bo called upon to pay costs.— Terry v. Terry, 1 W.W. & a'B. (I.E. & M.), 78.

Where there were several co-respondents, only ono of whom appeared and denied the adultery, and the Court considered tho charge proved, he was ordered to pay the costs of the issuo against him, although, tho husband had condoned tho offence, which had been revived by subsequent adultery of tho wife with other men.—Detheridge v. Detheridge, 7 V.L.R. (I.P. & M.), 146.

The co-respondent may be ordered to pay the general costs (excepting costs of interlocutory proceedings solely between husband and wife) of a husband's petition based upon adultery, where the wifo's misconduct with the co-respondent is proved, but the court dismisses tho petition because the husband had left his wife insufficiently provided for and unprotected.—Wolstenhohne v. Wolstenholme, 11 A.L.R., 410; and seo Bathgate v. Bathgate, 2 W. & W. (I.P. & M.), at page 134.

Although no adultery is proved, the co-respondent will be left to pay his own costs where his conduct has been such as to give rise to a reasonable suspicion which induces the petitioner to engage in an attempt to procure a divorce.—

Belcher v. Belcher, 10 V.L.R. (I.P. & M.), 52. Whore a co-respondent had asked tho petitioner

to take his name out of tho petition, and offered to pay tho costs, tho Court hold that that was sufficient to give rise to a reasonable suspicion in tho mind of tho petitioner that ho had committed adultery with tho respondent; and, in dismissing tho petition as against him, did so without costs.—Pyle v. Pyle, 10 V.L.R. (I.P. & M.), 06.

A supplemental order may, before decree absolute, bo made fixing a time for payment.— Ohaffey v. Chaffey, 1914 V.L.R., 438.

For other cases as to costs, seo notes to sections 159 and 171.

(6) Application as to tho custody, and as to alimony and costs, may bo mado in chambors after tho hearing of a suit for judicial separation.

Semble, in such a suit, whero tho pleadings did not raiso tho question of tho wifo's character, tho Court in considering who was entitled to tho custody of tho children was unwilling to hear any evidenco against her character.—Cawkwell v. Cawkwell, 10 V.L.R. (I.P. & M.), 69 ; and for form of order seo ibid, page 72.

(c) Interim ordors for tho custody and maintenance of children may bo mado under this section whero the children havo no proporty. The same presumption as to the wifo's innoconco will bo mado on an application for tho custody and maintenance of children as on application for alimony.—Jones v. Jones, 1 W.W. & a'B. (I.E. & M.), 86.

And see Sansom v. Sansom, 2 W. & W. (I.E. & M.), 147, cited in note to section 142.

No. 2691.] MARRIAGE ACT 1915. 3239

151. The Court after a decree of judicial separation or a decree nisi for nullity of marriage or dissolution of marriage may upon application by petition for this purpose make from time to time all such orders and provisions with respect to the custody maintenance and education of the children the marriage of whose parents was the subject of the decree or decree nisi, or for placing such children under the protection of the Court, as might have been made by such decree or such decree nisi or by interim orders in case the proceedings for obtaining such decree or decree nisi were still pending.<a)

152. On or after making a decree nisi for nullity of marriage or dissolution of marriage, the Court may inquire into the existence of antenuptial or post-nuptial settlements made on the parties whose marriage is the subject of the decree, and may make such orders with reference to the application of the whole or a portion of the property settled either for the benefit of the children of the marriage or of their respective parents as to the Court seems fit.(',) Provided that the Court may exercise the powers vested in it by the provisions of this section notwithstanding that there are no children of the marriage.

153. On or after making a decree of judicial separation on the ground of the adultery of the wife and on or after making a decree nisi for dissolution of marriage on the ground of the adultery of the wife, the Court, if it appears that the wife is entitled to any property either in

Marriage Act 1890 s. 97. Court may make the like orders after decree of judicial separation and after decree nisi for nullity of marriage or dissolution of marriage.

Court on or after making decree nisi for nullity or dissolution of marriage may inquire as to settlements and make orders for benefit of children &c. Jb. s. 98. 41 & 42 Vict, c. 19 s. 3.

Court may settle property of adulterous wife for benefit of innocent party and

By a decree absolute for the dissolution of a marriage it was ordered by consent that tho respondent should pay to the petitioner a weekly sum of £4 for her life, and that the petitioner should thoroout apply a sum sufficient for tho maintenance and education of the children. Held, that as tho ordor did not purport to make any provision for tho petitioner, but merely gavo her the control of a possible surplus, and as the main purposo of the order was the maintenance and education of the children, the Court had jurisdiction to mako the order under this section.— Stephen v. Stephen, 17 V.L.R., 447.

As to attachment for non-payment, see notes to soction 143.

(a) Where on the petition of a wifo a decree for divorce had been made absolute, and she had obtained the custody and control of tho children of tho marriage, but no ordor had been made against tho respondent for their maintenance, the jurisdiction of justices under Part I II . to make such an order on the mother's complaint may be oxercisod. In such a case it is not necessary that the proceduro under this section should be resorted to.—Livingstone v. Livingstone, 23 V.L.R., 291.

Consent to an order continuous in its operation, e.g., an order for the payment of permanent alimony, may be considered as given with reference to the then existing state of facts, but not as debarring an application to vary by cither party when circumstances have altered. —Stephen v. Stephen, 14 A.L.T., 24.

The Court will not refuse to permit a father to see his child who ia under fifteen years of age merely because the child does not wish to see the father.—Stephen v. Stephen, 14 A.L.T., 24.

(6) After a decree of dissolution. of marriage

on the ground of the wife's adultery, where the wife's settled property realized an income of about £980 per annum, and there were five children of the marriage, one of whom was living with the respondent and four with the petitioner, tho husband's salary being £700 per annum, the Court made an order that the trustees should pay £250 per annum to the respondent for her own benefit, and £50 per annum for the maintenance and education of the child living with her, and should pay the residue of the income to the petitioner for the benefit of himself and the four children living with him.—Welding v. Hichling, 10 V.L.R. (I.P. & M.), 44; and for form of order see ibid., page 49.

A marriage settlement of the wife's property gave the husband and wife a joint power of appointment by deed during their joint lives, and a power by deed or will to the survivor in favour of the children of the marriage. The Court, after a final decree for dissolution of marriage obtained on the wife's petition, ordered the settlement to be varied so as to give the wife the same power of appointment as if the husband were dead.—Langley v. Langley, 18 V.L.R., 712.

Where a wife had made an ante-nuptial, and also a post-nuptial, settlement, under which her husband and possible issue of the marriage were given interests, and a decree absolute for divorce had been obtained by the wife on the ground of the husband's adultery, and there was no issue of the marriage, the Court ordered the settlements to be varied, so as to vest the property affected thereby absolutely in the wife.

In such a case, the whereabouts of the husband being unknown, the Court will proceed in his absence.—Clark v. Clark, 9 A.L.R., 118,

K 2


Marriage Act 1890 » 99. children Of marriage. 20 & 21 Vict c. 85 s. 45. Coverturo not to invalidate instrument executod under order. lb. s. 100. 23 & 24 Vict, c. 144 s. G.

Court to act on principles of the ecclesiastical courts. lb. e. 64. See 20 h 21 Vict. c 85e.22.

possession or reversion, may order such settlement as it thinks reasonable to be made of such property or any part thereof for the benefit of the innocent party and of the children of the marriage or either or any of them.

154. Any instrument executed pursuant to such order shall be deemed valid and effectual in the law, notwithstanding the existence of the disability of coverture at the time of the execution thereof.

PAKT IX.—MISCELLANEOUS TO MATRIMONIAL

Application of certain sections to proceedings and decices relating to nullity of marriage.

Modo of commencing proceedings. lb. ». 100.

Affidavit in support of petition. lb. t. 107.

Facts upon which claim to relief Is founded to be stated. lb. 8. 76. Fifth Schedule

PROVISIONS RELATING CAUSES.

155. In all proceeding's other than those for dissolution of marriage, the Court shall proceed and act and give relief on principles and rules which in the opinion of the Court arc as nearly as may be conformable to the principles and rales on which the ecclesiastical courts of England previously to the thirteenth day of June One thousand eight hundred and sixty-five acted and gave relief, but subject to the provisions in this Act contained and to any rules and orders made by the said Court under the authority of any Act now or hereafter in force authorizing the same/")

156 . Sections one hundred and thirty-two, one hundred and thirty-six, one hundred and thirty-seven, one hundred and thirty-eight, and one hundred and forty of this Act shall apply to proceedings and decrees relating to nullity of marriage as if they were in terms made applicable to such proceedings and decrees, and as if for the expression " dissolution of marriage " wherever occurring in the said sections there were substituted the words " nullity of marriage." And in any case of intervention under this section and the said section one hundred and forty the Court as to costs shall have the like power to that provided by sub-section three of section one hundred and thirty-nine of this Act. Provided that where a decree for nullity is made on the ground of a prior marriage the Court may if it thinks fit make the decree absolute in the first instance.

157. Proceedings for a decree of nullity of marriage, judicial separation, or dissolution of marriage, or for a decree in a suit of jactitation of marriage shall be instituted by filing in the office of the Prothonotary a petition together with an affidavit made by the petitioner as prescribed by the Rules of Court verifying the petition, so far as the petitioner is able so to do, and stating that there is not any collusion or connivance b e t w e e n t h e d e p o n e n t a n d a n y o t h e r party. ( ( ,>

Such filing as aforesaid shall constitute the presentation of any such petition.

Every such petition shall state as distinctly as the nature of the case permits the facts upon which the claim to rebel is founded.

Every petition for judicial separation or for dissolution of marriage shall be in the form of the Fifth Schedule or to the like effect.

(a) I n Bishop v. Bishop, 5 A.J .R. , 43, an opinion was in t imated t h a t th i s section might n o t apply to procedure .

The Cour t has power unde r th is section to allow costs de die in diem in a suit for null i ty. Richardson v. McLeish (20 A.L.T. , 24) followed. —Solomons v. Flegeltaub, 5 A.L.R. (C.N.), 34.

Where the marr iage was celebrated in Victoria, the respondent being then a mar r ied woman, the

Court g r an t ed a decree of nul l i ty though tho pet i t ioner was domiciled in Now South Wales , tho whereabouts of t h e respondent being unknown.— Corbett v. Adamson, 20 V.L.R. , 278.

(6) W h e r e the affidavit s t a t ed no reasons for the delay of nea r ly th ree years after tho lapso of tho s t a t u t o r y period of th ree years ' desortion, Hood, J., refused to proceed wi th tho hearing upon tho mate r ia l s presented , bu t gave loavo to

No. 2691.] MARRIAGE ACT 1915. 3241

158 . Every petition shall be served on the party to be affected Marriage Act thereby either within or without Victoria in such manner as the *890*'108' Court by any general or special order from time to time directs; a n d petition. for that purpose the Court shall have and exercise all the powers it now S0020&21 vtct possesses by law. Provided that the Court may dispense with such c-85 s-42-service altogether in case it seems necessary or expedient so to do.(a)

159. When a dissolution of

wife in any proceeding for judicial separation Powcrtoorder marriage**) has as petitioner duly filed her [™sban t0 ?ay

or uissoiu won 01 marriage^"' nas as peuuoner uiuy men Jier money to wife petition or as respondent has duly entered an appearance, the f°vest ahtld0ase

Court if it considers she has not sufficient separate est;ite(<;> may 10.«. 111.

the petitioner to file a supplementary affidavit giving reasons for the delay, after which the hearing proceeded and a decree was made.— Ponsford v. Ponsford, 11 A.L.R. (C.N.), 36.

(a) Higinbotham, J. {in chambers), made an order dispensing with service of the citation and petition upon a respondent who had deserted his wife and gone to live in China, where he had married again.—Ah Nang v. Ah Nang, 4 A.L.T., 178.

The Court refused to grant a decree nisi for tho dissolution of marriage where the only evidence that tho person served with the petition was tho petitioner's wife was the uncorroborated evidence of the petitioner himself.—Picaud v. Picaud, 13 A.L.T., 192.

Evidence by the petitioner alone of the service of tho petition and citation on the respondent and co-respondent held not sufficient. —Russell v. Russell, 4 A.J.R., 183.

In a suit by the wife for judicial separation, where the respondent absconded, and the petitioner stated upon affidavit that she had teen unable, after diligent inquiries, to gain any intelligence of him, and believed from the answers to her inquiries that he had left Victoria, tho Court refused to dispense with service upon tho respondent; but, upon further affidavits stating where the respondent was supposed to be, directed substituted service by advertisements in that place.—-McNulty v. McNulty, 1 W.W. & a'B. (I.E. & M.), 85.

I t was held that no special order was required for personal service of the petition and citation on the respondent out of the jurisdiction.— Parke v. Parke, 6 W.W. & a'B. (I.E. & M.), 51 ; N.C., 2S.

The practice is to obtain from a judge leave to serve the citation out of the jurisdiction, and to have a time fixed for appearance, &e.

A judge has discretion in eases where it is almost impracticable to swear as to the whereabouts of the person to be served with the petition, to dispense with service altogether, or to make any order he may think fit as to advertisements or other means of bringing the proceedings under the notice of the respondent. —Walker v. Walker, 16 V.L.R., 454.

Where tho original citation in a divorce petition has been lost before service, leave may be obtained to issue a duplicate citation.— MacHugh v. MacHugh, 20 A.L.T., 45.

Tho Court will not dispense with personal service of tho citation and copy of petition in a

divorco suit merely on the ground that the petitioner is unable, through lack of means, to effect such service.—Deveria v. Deveria, 24 V.L.R., 827.

Tho Court will not dispense with service on the respondent nor allow substituted service of a potition for a divorce where the marriage sought to be dissolved did not take placo in Victoria, and the petitioner and tho respondent have never lived together in Victoria, and the respondent (the husband) has never been domiciled in Victoria.—Miller v. Miller, 28 V.L.R., 412.

On a petition for divorce by a wife, the Court held that it had no jurisdiction to grant leave to serve the citation upon the husband who is not and never has been within the jurisdiction of the court.—Kretzschmar v. Kretzschmar, 4 A. J.R., 131.

In an application under section 11 of Act No. 11 (Commonwealth Service and Execution of Process Acts) for leave to proceed in a suit for divorce, strict proof of service upon the respondent such as is required at the hearing of the suit is necessary.—Cecil v. Cecil, 28 V.L.R., 429.

(b) As this section doo3 not apply to suits for declaration of nullity, a judge has no jurisdiction in such suits to make an order that a sum of money be paid into court to enable the fomalo petitioner or respondent to have the merits of her case investigated by a proctor—Muir (falsely called Sutherland) v. Sutherland, 13 A.L.T., 20 j and a wife in such a suit cannot be allowed her costs under this section.—Richardson v. McLeish, 20 A.L.T., 24; Solomons v. Flegeltaub, 5 A.L.R. (C.N.), 34.

See notes to section 155. (c) The words " sufficient separate estate " in

this section considered.—Kidd v. Kidd, 1908 V.L.R., 409.

The wife has to satisfy the Court that she has not sufficient separate estate.—Hugo v. Hugo, 13 A.L.T., 157.

In an application under this section the Court has to inquire whether the wife has or has not sufficient separate estate, and also what would be a sufficient sum, if she has not such estate, to enable her to have the merits of her case investigated, and, therefore, an affidavit is required, not only that the wife has not sufficient separate estate, but also to show circumstances from which tho Court can gather what would be a sufficient sum to enable her to have her case investigated. —Bone v. Bone, 18 V.L.R., 248.

The application should be on affidavit. Bone v. Bone (supra) approved.—Carlton v. Carlton, 17 A.L.T., 42.

3242 MAHRIAGE ACT 1915. [6 GEO. V.

Marriage Act order(a> the husband to pay into court a sum of money sufficient to 1890' enable her to have the merits of her case invest igated by a proctor, and

such sum or par t thereof may on the certificate of the taxing master be paid to the wife or her proctor on such master being satisfied tha t such sum has been properly incurred or spent in ascertaining whether the wife has a good cause of suit or defence on the meri ts thereof; aud if after invest igating the case the wife's proctor is of opinion tha t she has a good cause of suit or defence on the merits , he may file a certificate to tha t effect in the office of the Prothonotary and thereupon the husband shall pay into court a sum not exceediug Twenty pounds to be fixed by the taxing master ;(*> and no order shall be made for the taxation and payment of costs cle die in diem, or for the payment before hearing or tr ial of any costs of or incidental to the hearing of the cause or for the

If the Court is satisfied that the applicant has not sufficient separate estate, it cannot refuse the application on the ground that the relief asked for in the suit might have boon obtainod in a speedier and cheaper manner before justices.— Heywood v. Heywood, 19 A.L.T., 1.

(a) Applications under this section may be made to a judge in chambers.—Bennetts v. Bennetts, 18 V.L.R., 131. See section 169.

An order under this section, directing payment of the costs of investigating the case of a respondent wife, will not be made where the time limited for the answer has expired, and the petitioner has obtained leave to proceed.—Saw v. Raw, 8 A.L.R., 238.

Where a wife charged in a divorce suit with adultery has not put in an answer within the prescribed time, and has not denied the charge on affidavit, an order will not be made under this section for payment into court of investigation money in relation to that charge; nor in such circumstances will an order be made under the section for payment into court of money to enable an intended counter-charge of adultery against the petitioning husband to be investigated.— Rackham v. Rackham, 1913 V.L.R., 120.

Under this section if a wife establishes to the satisfaction of the Court that she has not sufficient separate estate to enable hor to have the merits of her case investigated by a proctor, then the Court may order, and (unless there is some good reason shown to the contrary) ought to order her husband to pay into court the sum of money necessary for the investigation of her case ; and the onus lies upon the husband, when an order of that description is made and he wishes to excuse himself for not paying, to prove to the satisfaction of the Court hi3 inability to pay.—Hunt v. Hunt, 26 V.L.R., 252.

Money for investigation of wife's case was ordered to be paid into court as a condition precedent to leave given concurrently to proceed in formd pauperis.—McDonald v. McDonald, 5 A.L.R. (C.N.), 41.

I t was held that an application under this section may be made after the investigation has takon place.—Bartlett v. Bartlett, 1 A.L.R., 94; Gaeber v. Oaeber, 1 A.L.R., 169; Goodman v. Goodman, 1906 V.L.R., 671 ; but see contra, Vogt v. Vogt, 25 V.L.R., 283 ; Kidd v. Kidd, 1908 V.L.R., 409; Ruddell v. Ruddell, 1911 V.L.R.,

277 ; Wilson v. Wilson, 17 A.L.T., 154. The Court has jurisdiction undor this section

to make an order that the husband, respondent in a suit for dissolution of marriage, should pay into court a sum of money sufficient to enablo his wife, the petitioner in the suit, to havo the merits of her case investigated by a proctor, even though the application for such an order is not mado until after the respondent has filed his answer.

But such an order will not bo mado if tho morits of the wife's case have been investigated prior to her application.—Ruddell v. Ruddell, 1911 V.L.R., 277 ; Wilson v. Wilson, 17 A.L.T., 154.

(b) Upon a summons for an ordor for the payment into court of money to enablo a wifo to have the merits of her case investigated by a proctor, it is premature to ask also for an order that the husband pay into court the sum to bo fixed by tho taxing officer, under this section. Semble, the Court has jurisdiction to mako an order, if necessary, for the payment into court, by a husband, of a sum which has, undor this section, been fixed by tho taxing officer to be so paid but which has not boen paid.—Jose v. Jose, 24 V.L.R., 942.

Where the taxing officer has fixed a sum of money to be paid into court by one of the parties under this section, and that sum has not been paid in, a judge of the Supreme Court has jurisdiction to ordor the defaulting party to pay that sum into court.—Bartlett v. Bartlett, 16 A.L.T., 6 ; but see contra, Jackson v. Jackson, 18 A.L.T., 70.

I t is not necessary, in ordor to compol tho payment into court, under this section, by a husband of a sum of money not exceeding £20, that a preliminary order for the payment by him of £5, under the section, should havo boon made. Whore a husband neglocts to pay into court, under tho section, tho sum fixed by tho taxing officer, a summons to compel him to do so may bo taken out, but this should bo dono promptly. Jackson v. Jackson (2 AX.R., 224) explained.—Zanoni v. Zanoni, 24 V.L.R., 940.

The Court will order a husband to pay into court tho amount of his wife's costs fixed by the taxing master, though no ordor of the Court has been previously obtainod under tho soction that the husband shall pay into court a sum of monoy sufficient to enable his wifo to havo the merits of her case investigated by a proctor.

No. 2691.] MARRIAGE ACT 1915. 3243

giving of security for such costs by the husband.'") The costs of the Marriage Act

wife of or incidental to any such proceeding in which she is either1890 ' petitioner or respondent shall be in the discretion of the Court, and be in discretion

when the decision of the Court or the verdict of the jury is against the when She "is6™ wife, the Court may notwithstanding if it thinks the suit was a reason- unsuccessful. able one to maintain or defend order that she shall receive the costs of or incidental to the suit or at or after such decision or verdict fix an amount to be paid to her for such costs in accordance with the husband's ability to pay such costs.(6>

Zanoni v. Zanoni (1899, 24 V.L.E., 940) followed.

Order made for payment " forthwith." Semble, that a summons for such an order can

be taken out undor rule 61 of the Divorce and Matrimonial Rules 1885, and where the husband has not appeared to a suit the applicant may proceed by filing it in the office of the Prothono-tary.—Farrer v. Farrer, 1907 V.L.R., 382.

(a) This section is intended to provide for all incidental costs, e.g., tho wife's costs on an application by tho husband to have issues settled —Smith v. JSmith, 26 V.L.R., 222; and see Montgomery v. Montgomery, 12 A.L.R. (C.N.), 1; and to take tho place of tho old ordor for costs de die in diem—Wilson v. Wilson, 17 A.L.T., 154. As to cases under the former Acts where a sum for the wife's costs was fixed before tho hearing, see Batch v. Batch, 5 V.L.R. (LP. & M.), 120; Belcher v. Belcher, 10 V.L.R. (LP. & M.), 52; Hayle v. Hayle, ib., 59 ; Cawkwell v. Cawkwell, ib., 69 ; and Malpas v. Malpas, 11 V.L.R., 670.

An order under this section may be made against a husband for the payment into court of a sum fixed by the taxing master for his wife's costs, although ho has obtained leave to sue in Jormd pauperis.

The Court has a discretion as to directing that proceedings shall bo stayed until such an order has been obeyed.

A husband, in 1910, petitioned for dissolution of his marriage, and an order was made directing him to pay into court a sum of £20 for his wife's costs, and staying proceedings until that order was oboyed. Petitioner, being unable to comply with the ordor, abandoned the petition. In 1912 he instituted another petition on the same grounds, and obtained leave to sue in Jormd pauperis. An ordor was made for the payment into court of £20 for the wife's costs; but as it appeared that the petitioner had been unable to comply with the order in the previous suit, and was unable to comply with this order, a stay of proceedings until payment was not granted. —Howard v. Howard, 1913 V.L.R., 46.

(6) In all proceedings in a divorce suit the question of costs is in the discretion of the Court, and the Court may, if the circumstances so require, refuse to allow a wife respondent costs of an application for alimony pendente lite.—Beilly v. Beilly, 19 V.L.R., 22.

A wife not having separate property will be indemnified against costs in a divorce suit, unless her proceedings are deemed by the court vexatious.—Smith v. Smith, 3 V.L.R. <I.P. & M.), 122.

Whore, in divorce proceedings, a wife is awarded costs against her husband, the taxing officer should tax her costs as between solicitor and client, and not as between party and party. —Downing v. Downing, 23 V.L.R., 483; Edwards v. Edwards, 10 A.L.R., 245.

The Court will not order that a wife who is unsuccessful as a petitioner or respondent in a suit for dissolution of marriage shall receive the costs of or incidental to the suit unless such costs have been reasonably and properly incurred on her behalf in presenting a case of a reasonable character.—0. v. O. and another, 1908 V.L.R., 420.

Whoie a wife's counter-petition, though unsuccessful, occasioned no further costs than those of her successful defence to her husband's petition, the husband was ordered to pay all the costs.—Belton v. Belton, 16 A.L.T., 142.

In a suit for divorce on the ground of adultery, the respondent denied the adultery, and charged her husband with desertion, neglect, and cruelty. All these issues were found in favour of the husband. On the question of costs: Held, that the wife was not entitled to any costs except the costs of the issue charging her with adultery and the costs of an issue of condonation raised by her answer, since evidence was given to support it.—Miller v. Miller, 1 A.J.R., 41.

A husband instituted proceedings for divorce against his wife on the ground of her adultery. The wife made unfounded charges of adultery and cruelty against the husband, which her proctor might have discovered by careful inquiry to be unsustainable. In these circumstances the Court ordered the wife's costs to bo taxed as if she had only traversed the adultery and gone to trial upon that issue alone, all costs of and occasioned by the rest of her answer being disallowed. From the costs thus taxed it was directed that there should be deducted any costs which the taxing officer should find that the petitioner had reasonably incurred in witnesses or otherwise for the purpose of meeting the charges made against him in the answer.—Barrows v. Barrows, 16 V.L.R., 622.

Where a wife makes unfounded charges which her proctor, by careful inquiry, might have discovered to be unsustainable, the wife's costs in respect of such charges will be disallowed, and a deduction of the petitioner's costs in respect of such charges will be made from the amount allowable to the wife.—Lawrence v. Lawrence, 6 V.L.R. (LP. & M.), 107. . On trial of tho issues in a suit for divorce,


Marriage Act 1890 8. 101. A single judge may exercise powers formerly vested in Full Court. 23 & 24 Vict. c. 144 s. 1. Judge may direct any matter to be heard by the Full Court. lb. s. 102.

Questions of fact may be tried before the Court. lb. s 104. 20 & 21 Vict. c. 85 s. 36.

Such question to be tried as an issue. lb. s. 105.

Examination of petitioner. lb. e. 109. l b . s. 43.

Mode of taking evidence.

160. (1) It shall be lawful for a single judge of the Supreme Oonrt alone to hear and determine all matters arising in the said Court in its divorce and matrimonial jurisdiction, and to exercise all powers and authority whatever which might previously to the seventh day of May One thousand eight hundred and eighty-four have been heard and determined and exercised by the Full Court.

(2) Provided always that the single judge may where lie deems it expedient direct that any such matter as aforesaid shall be heard and determined by the Full Court/"'

1 6 1 . In questions of fact arising, in proceediugs under Parts V. VI. YLL. and VIII. of this Act or arising in proceedings relating to nullity of marriage it shall be lawful for, but except as hereinbefore provided not obligatory upon, the Court to direct the truth thereof to be determined by the verdict of a jury.(6>

162 . When any such question is so ordered to be tried, such question shall be decided in the manner provided by any law now or hereafter in force empowering the Court or a judge thereof to direct an issue.

1 6 3 . The Court may if it thinks fit order the attendance of the petitioner or respondent, and may examine him or her or permit him or her to be examined or cross-examined on oath on the hearing of any petition ;(c) but no such petitioner or respondent shall be bound to answer any question tending to show that he or she has been guilty of adultery.(<J)

164. The witnesses in all proceedings before the Court where their attendance can be had shall be sworn and examined orally in opeu

the ju ry found t h a t tho allegations of adul te ry aga ins t the respondent and co-rospondent had no t been proved, b u t t h a t counter-allegations b y t h e respondent against tho pet i t ioner of adu l te ry and cruel ty were proved.

The cour t dismissed the pet i t ion wi th costs. —Smith v. Smith, 4 A.J .R. , 129.

When the t imo for appearanco to tho ci ta t ion elapsed wi thou t the respondent (wife), who had boon personally served wi th the ci tat ion, appear ing, tho pet i t ioner was allowed t o h a v e his pet i t ion dismissed wi thou t costs .— Pasmore v. Pasmore, 1 W. & W. ( I .E . & M.), 203.

F o r o ther decisions as t o costs, seo tho notes t o sections 149 and 171.

(a) A single judge can, under this section, reserve for t h e opinion of tho Ful l Court a quest ion arising in tho suit.—Corbett v. Adamson, 20 V.L.R., 278.

Unde r tho combined effect of th is section and section 173, a single judge s i t t ing in tho divorce jurisdict ion has power to hoar a n applicat ion for a now tr ia l . Tho mot ion should bo m a d e before t h e docreo is pronounced.—Belcher v. Belcher, 10 V.L.R. ( L P . & M.), 52.

(6) I n an undefended suit for dissolution of marriage, t h e Court has no jurisdiction t o direct a quest ion of fact raised by tho pet i t ion t o bo t r ied by a jury.—Dowling v. Howling, 9 V.L.R. ( I . P . & M.), 5 8 ; a n d see Bury v . Bury, 1 V.R.

( I .E . & M.), 20. I n an applicat ion t o t r y issues of fact in a suit

for judicial separat ion by a ju ry , the appl icant has t o show t h a t the case is a proper one t o be so tr ied.—Beid v. Reid, 18 V.L.R. , 490.

(c) Tho Court , in a n unopposed poti t ion by a husband for a dissolution of marriago on the ground of the adu l te ry of his wifo, has jurisdict ion to cross-examine tho pet i t ioner and to call witnossos to prove his collusion wi th his wifo, and t h a t ho has himself been gui l ty of adul te ry if, on communicat ion wi th tho Court by tho husband of t h e woman wi th whom tho pet i t ioner is said to have commit ted adul tery , i t has reason to suspect any th ing of the k ind .—Kirk v. Kirk, 15 V.L.R., 118.

Ev idence given b y a r e sponden t called under th is section may , even though uncor robora ted , prove adul te ry aga ins t a co-respondont.— McConville v. Bayley, 17 C.L.R., 509.

(d) A pet i t ioner refusing t o answer a general quest ion whe the r ho has ever been gui l ty of adul te ry sinco his marr iage , does no t disenti t le himself t o a decree ; tho effect is t o permi t tho Court t o draw, or decline t o draw, a damna to ry inferenco from such refusal.—Cameron v. Cameron, 6 V.L.R. ( L P . & M.), 105. I t was apparen t ly assumed in th i s case t h a t the la t tor port ion of the section applied t o the caso of a pet i t ioner giving evidence in suppor t of his own caso, he not having been ordered by t h e Court to a t t end .

No. 2691.J MARRTAGE ACT 1915. 3245

court ;<0) and such attendance and the production of documents by them Marriage Act

shall be compelled in the same manner as in a civil action; but any ^lai'vict of the parties shall be at liberty to verify his or her case in whole or in c. 85 s.«. part by his or her own affidavit, but so that the deponent in every such affidavit shall on the application of the opposite party or by direction of the Court be subject to bo cross-examined by or on behalf of the opposite party orally in ope"n court, and after such cross-examination may be re-examined orally in open court as aforesaid on his or her own behalf.

165. It shall be lawful for the Court or a judge to order the commissions or examination of witnesses, and also to order a commission or letters examination of of request to issue for the examination of witnesses, in the same "itnesses-way to all intents as if the matter before it were a civil action.''1' gee itj s 4-

166. In any proceeding for judicial separation or dissolution Power to grant of marriage if the respondent opposes the relief sought on the ground respondent, of any cause entitling either husband or wife to any relief under this '»• «• no. Act, the Court may in such proceeding give to the respondent on his ""* or her application the same relief to which he or she would have been entitled in case he or she had filed a petition seeking such relief.(c)

167. The Court may from time to time adjourn the hearing of any Adjournment petition, and may require further evidence thereon if it sees fit so to do. Ib- *•112-r ' J 1 20 & 21 Vict.

29 Vict. c. 32 s 2.

c. 86 s. 44.

168. The Court may on the application of any party or at itsTriaiin - - - - - - - - - - - - -"-- - chamber;

lb. e. 121. own discretion if it thinks it useful in the interests of public morals chambers' hear and try any suit or other proceeding in chambers,(d) and may at all times in any suit or other proceeding whether heard and tried in chambers or in court make an order forbidding the publication of any Forb.ddimj report or account of the evidence or other proceedings therein either j^1^™™' as to the whole or portion thereof, and the breach of any such order or any colourable or attempted evasion thereof may be dealt with as for contempt of court.

(a.) Semble, a judgo in chambers has no showing that she was exceedingly nervous and jurisdiction to make, before the hearing, an order had miscarried in her previous pregnancy, and allowing the petitioner to prove service of peti- that her attendance in the witness-box would tion and citation by affidavit. The matter be very likely to occasion another miscarriage, must bo dealt with as part of the hearing.—Keane but that she was not otherwise ill, the Court v. Keane, 24 V.L.R., 63. But see now Common- refused to admit her evidence taken under a wealth Service and Execution of Process Acts commission.—Fisher v. Fisher, 3 V.L.R. (I.P. 1901-1912. &M.), 64.

(b) By consent of the parties and direction A commission was ordered to issue before of tho Court the evidence may be taken on am- issuo joined, though such a proceeding is un-davit instead of under a commission.—White v. usual.-—Malpas v. Malpas, 6 A.L.T., 20. While, 8 A.L.T., 64. (c) In a suit by a wife for dissolution of marri-

In a suit for dissolution of marriage, the co- age, the respondent may allege in his answer respondent appeared and answered, raising by that the petitioner has been guilty of adultery, his answer (inter alia) an objection to the juris- and pray for a divorce. Tho alleged adulterer diction, ho not being domiciled in Victoria. On may be joined as a party by serving him with a a summons in chambers to obtain a commission citation and the answer.—Bailey v. Bailey, to examino a witness abroad, it was contended 1909 V.L.R., 138. that tho decision on tho objection to tho juris- (d) A petition for the dissolution of marriage diction might render his evidence unnecessary, will not be heard in camera, unless some ex-but the commission was nevertheless granted. ceptional circumstances have been shown to —Smith v. Smith, 3 V.L.R. (I.P. & M.), 65. warrant such a course being taken.—Synnot v.

Where a witness was in an advanced state Synnot, 20 V.L.R., 408. of pregnancy, and medical evidence was adduced


Marriage Act 169. I t shall be lawful for the judge in any cause to sit in cham-1890«. 122. k £ ^ despatch 0f snch part of the business of the Court as in the Judge may sit in , . *•. . - I i I • i •

onambersto opinion or the said nidge can with advantage to the suitors be heard in hear cases. I T ° 2i & 22 vict. chambers . c. 108 s. 1. powers of judges 1 7 0 . Such judge when so si t t ing in chambers shal l have and inchambeis. ,i " ° i • • v j . - • j . ^ j_i i j . /*.«. 123. exercise the same power and jurisdiction in respect of the business to ib. s. 3. be brought before h im as if sit t ing in open court.

1 7 1 . Except so far as is otherwise expressly enacted in any proceeding under this Act whether interlocutory or final the Court on the hearing

victfc.'sis's. 51. may make such order as to costs as seems just. ( a )

Costs. Ib. s. 116. See 20 & 21

172. All decrees and orders made by the Court in any proceeding ituted under this Act shall be enforceable in like mai

judgments orders and decrees of the Court are enforceable.

Enforcement of

decrees. insti tuted under this Act shall be enforceable in like manner as other Ib. s 117. Ib. s. 52.

(a) This section canno t be t aken t o override section 159. I t means t h a t t h e costs of a cause are to be deal t wi th a t the hear ing .—Smith v. Smith, 26 V.L.R. , 222, a t pago 226.

I n all proceedings in a divorce sui t , t h e quest ion of costs is in t h e discretion of t h e Court , a n d t h e Court may , if the circumstancos of t h e case so require, refuse t o allow a wife respondent the costs of an applicat ion for a l imony pendente lite.—Reilly v. Beilly, 19 V.L.R., 22.

Where a wife's pet i t ion, a l though unsuccessful, had occasioned no further costs t h a n those of hor successful defence, the husband was ordered to p a y all the costs of suit .—Belton v. Belton, 16 A.L.T. , 142.

Whero upon t h e pet i t ion of t h e wife the Court gran ted a decree nisi for dissolution of t h e marr iage w i th costs, b u t upon the in tervent ion of t h e At torney-General tho decree nisi was set aside, and the pet i t ion dismissed on the ground t h a t mater ia l facts had been suppressed, t h e Court confirmed tho order as t o costs, t h e pet i t ioner ' s proctor no t having been aware of the facts dis-closod in the in tervent ion .—St . Leger v. St. Leger, 11 A.L.R. , 5 0 6 ; 27 A.L.T. , 124.

Whero a husband ' s pe t i t ion for divorco on account of his wife's adu l te ry was dismissed on the ground t h a t , a l though tho adu l te ry wi th tho co-respondent had been proved, the husband ' s conduct conduced thoreto , the Court ordered tho co-ro3pondent to pay t o t h e pet i t ioner the general costs of the pet i t ion, except ing tho costs of interlocutory proceedings solely between pet i t ioner and respondent.—Wolstenholme v. Wolstenholme, 11 A.L.R. , 410 ; 27 A.L.T. , 59.

The mere fact t h a t a husband has no t pa id costs, which h e was orderod t o p a y t o t h e responden t in respect of a pe t i t ion by h im and a cross-pet i t ion by her, bo th of which were dismissed, is no t a sufficient ground for s taying proceedings on a second pet i t ion b y tho husband, a t all events , in the absence of proof t h a t the respondent has been affected in her defence by reason of t h e nonpayment .—Bel ton v. Belton, 5 A.L.R. , 4 8 ; 20 A.L.T. , 195.

Where a pet i t ioner abandons a sui t t h e Court will keep the sui t alive un t i l tho husband respon

den t pays t h e pet i t ioner ' s costs to her proctors .— Kerle v. Kerle, 0 A.L.R. (C.N.), 61 .

The rule ent i t l ing a proctor who has acted for a pa r t y in divorce proceedings t o paymont of his costs beforo a change of proctor can bo m a d e does not apply where t h e proctor has discharged himself by refusing to ac t furthor wi thou t paymon t of his costs .—Murphy v. Murphy, 10 A.L.R. , 189.

As to costs generally undor tho rulos, soo Niblett v. Niblett, 25 V.L.R. , 65.

A t t a c h m e n t for non-paymont of costs ordored to be pa id by the co-respondent in a divorce sui t is a " process aga ins t tho p e r s o n " wi th in tho meaning of soction 173 of tho Insolvency Act 1915, and is therefore s tayed b y tho sequestrat ion of his es ta te .—Laing v. Campbell, 1 W. & W. (E.) , 372 ; Middleton v . Middleton, 4 A.L.R. , 188 ; 20 A.L.T. , 55.

Order X L L , rule 5, applies t o a n order for paymon t of costs in a divorce sui t . Whero the original order does no t n a m e a t ime for paymon t a supplementa l order m a y be m a d e ex parte.— Middleton v. Middleton, 4 A.L.R. , 239.

Tho pet i t ioner commenced proceedings against tho respondent in this Cour t for a dissolution of marr iage. The respondent in his answor ploadod w a n t of jurisdict ion, he being domiciled in Now South Walos. Dur ing the progress of tho suit tho pet i t ioner obta ined a n order for a l imony pendente lite, and for cer ta in coats. Those ordors woro sought to bo enforced in the courts of Now Sou th Wales , b u t i t was there decided t h a t , inasmuch as such orders were in ter locutory a n d no t final, thoy could no t bo enforced there . Tho pet i t ioner subsequent ly ins t i tu ted proceedings in New South Wales a n d obtainod a docreo agains t tho respond e n t for dissolution of marr iago. Tho pet i t ioner 's proctors af terwards applied b y w a y of mot ion to t h e Supreme Court of Victoria for an order dismissing the sui t , and for a n ordor for tho p a y m e n t of the a l imony and costs a l ready ordered to be pa id b y the respondent , b u t still unpaid . Held, t h a t the Court had jurisdict ion to dismiss tho sui t and t o m a k e t h e order for paymon t of tho a l imony a n d costs.—Splatt v. Splatt, 14 V.L.R., 650.

F o r o ther decisions as t o costs, seo tho notos t o sections 149 a n d 159.

No. 2691.] M A R M AGE ACT 1915. 3247

173. Where any trial has been had by a jury before the Court or Marriage Act upon any issue directed by the Court, it shall be lawful for the Court, on Court*'may" motion made within such time as may by Rules of Court be prescribed, to gray4.a new

erant a new trial.(a) tried by a ° jury &o.

174. Any party dissatisfied with any decision of the Court or Appeal from a single judge in any matter may within two months after the FuHcourt610

pronouncing thereof appeal therefrom to the Full Court; and either ib. s. 129. party dissatisfied with the decision of the Court in granting or refusing ûf^ l 4 v i o t

any application for a new trial may within fourteen days after the pronouncing thereof appeal to the Pull Court.(6)

175 . Any party dissatisfied with the final decision of the Full Appeal to Privy Court on any petition for nullity of marriage or dissolution of mar- one month!1"" riage may within one month after the pronouncing thereof appeal to n.«. 130. His Majesty in Privy Council. Provided always that in suits for ^3 1*3 2 V i o t-dissolution of marriage no respondent or co-respondent not appearing and defending the suit on the occasion of the decree nisi being made NO appeal in ^ shall have any right of appeal to His Majesty in Privy Council ™r solution's

against the decree absolute unless the Court at the time of the of'ceoSurt!leave

pronouncing of the decree absolute sees fit to permit an appeal. ».«. 130. I b . a. 8.

176. The Governor in Council may fix from time to time the fees Fees to be payable upon all proceedings under this Part of this Act; but the ™*ulllt°*', Court shall have the same power of granting orders to sue or defend sue informd informd pauperis in any suit under this Act as in civil actions.*"' 7&T118

177. All orders fixing the fees payable under this Act shall be laid c. 85 s! 64.ct" before both Houses of Parliament within one month after the making orders Axing thereof if Parliament is then sitting or if Parliament is not sitting then before within one month after the commencement of the next session of j"1'™™'' Parliament. m! s' 67.'

(a) As to now trial, see Belcher v. Belcher, 10 succeeded at that trial. V.L.R. (LP. & M.), 52, cited in note to section 160. On an application for a new trial on the ground

The combined effect of this section and sec- that the respondent was taken by surprise at the tions 127 and 160 is to place the judge, to whom trial, and that fresh evidence has been discovered an application is made for a now trial on the since the trial, it must be clearly shown that if ground of the verdict being against evidence, in the additional testimony had been brought for-a similar position with similar duties and powers ward at the first trial it ought to, or would have, as tho Court to which an application used to be led the jury to a different conclusion from that at made in its common law jurisdiction.—Malpas v. which they arrived. Malpas, 11 V.L.R., 670. The wilful suppression by a witness of even

(6) A notice of appeal in the divorce jurisdiction material facts does not necessarily discredit the should state the grounds of the intended appeal. positive testimony of that witness, nor does it —Bury v. Bury, 1 V.R. (LP. & M.), 20. form a ground for granting a new trial.—Malpas

Held, per Williams and a'Beclcett, JJ. (Hood, J., v. Malpas, 11 V.L.R., 671. dissentiente), that the Court of Appeal cannot draw (c) An order giving leave to sue in jormd adverse inferences of fact against tho petitioner pauperis should be stamped. Torkelson v. Torkel-which the judge who tried the case has not drawn. son (23 V.L.R., 383), disapproved.—Christie v. —Richardson v. Richardson, 22 V.L.R., 342. Christie, 23 V.L.R., 566 ; Smith v. Smith, 19

A new trial may be ordered of an issue of a A.L.T., 181; Buchanan v. Buchanan, 19 A.L.T., 181. charge of adultery with one co-respondent, with- An application for leave to appeal in Jormd out also ordering a new trial as to a charge of pauperis by a party in divorce proceedings, who adultery with another co-respondent. has not sued or defended in forma pauperis in the

As a general rule whore a new trial is granted, Court below, must be made to tho Full Court.— the costs of the first trial will be made to abide Belton v. Belton, 24 V.L.R., 719. the event of the second. But where a new trial Money for investigation of wife's case was is granted on the ground of the improper reception ordered to be paid into court as a condition pre-of evidence, pressed in spite of objection to it cedent to leave given concurrently to proceed in taken at the trial, the costs of the first trial jormd pauperis.—McDonald v. McDonald, 5 will be ordered to be paid by the party who A.L.R. (C.N.), 41.


SCHEDULES.

Section fi. FIRST SCHEDULE.

Number of Act. Title of Act. Extent of Repeal.

1166 Marriage. Act 1890 So much as is not otherwise repealed.

158-2 Marriage Act 1898 So much as is not otherwise repealed.

1G84 Marriage Art 1900 The whole. 1737 Marriage Act 1901 The whole. 1809 Marriage Act 1902 The whole. 1959 Justices Act \904 Section 20. 2062 Marriage Act 1 [>06 The whole. 2192 Marriage Act 1909 The whole. 2439 Custody of In fan ts Act 19\2 The whole. 2459 Marriage Act 1913 The whole.

Section 22. SECOND SCHEDULE.

FORM OF DECLARATION OF MARRIAGE BEFORE GOVERNMENT STATIST OR REGISTRAR

OF MARIIIAGES.

I John Smith of [usual place of residence and designation or employment] do hereby declare in the presence of A.B. [Government Xtati-t or Registrar ot Marriages as the case may be for the district of ] that I take Mary Edwards of [usual place of residence and designation or employment] to be my lawful wife. And I the said

' Mary Edwards do hereby declare that I take the said John Smith to be my lawful husband.

[Signatures]

[Signatures of Witnesses]

J.S.

M.E.

Section 24. THIRD SCHEDULE.

DECLARATION BEFORE MINISTER, GOVERNMENT STATIST, OR REGISTRAR OF

MARRIAGES.

I John Smith or Mary Edwards of [usual place of residence and designation or employment] being duly sworn make oath and say [or if objecting to take, an'oath " d o solemnly and sincerely declare and affirm "] that I am [widower or widow bachelor or spinster as the case may be] and am [under or above the. age of twenty-one years as the case may be] and that I have no knowledge of any just impediment or lawful objection by reason of any kindred relationship or alliance of any former marriage or the want of consent of parents or guardians or any other lawful cause whatever to my being married to Mary Edwards or John Smith of [usual place of residence and designation or cm7>loymen(] daughter of or son of [as the ease may be] James lidwards or William Smith of [usual or last place of residence and designation] and I hereby further declare that [ have full knowledge that in swearing or affirming falsely in this matter I am guilty of perjury and liable to the pains and penalties thereof.

Declared and sworn [or "affirmed "] by both the) parties named this day of 19 . |

[Signature and designation whether minister Government Statist or Ji<gistrar Marriages.]

[Signature of John Smith] or

[Mary Edwards]

No. 2691.] MARRIAGE ACT 1915. 3249

F O U R T H S C H E D U L E . Section 26.

I N T H E S T A T E O P V I C T O R I A .

I N T H E C O M M O N W E A L T H OV A U S T R A L I A .

F o u r t h Schedule. Act No. 2691 and Act No . 2720. F o r m A.

C E R T I F I C A T E O F M A R R I A G E . [A.

Yea r 19 . Par i sh or Church Dis t r ic t . Denomina t ion

No. in Register.

When and where Married.

(2.)

Name and Surname of each

Party.

(3.)

Conjugal Condition, also Date of Decease of each former Spouse (if Widowed), or Date of Order Absolute (if

Divorced). •

(4.)

Children by each former

Marriage. Birthplace.

(l.)


(2.)


Party.

(3.)


Divorced). •

(4.)

Living.

(5.)

Dead.

(6.) (7.)

Age, in years (lact

Birthday).

(9.)

Exact Residence of each Party. Parents' Names.

Occupation.

(8.)

Age, in years (lact

Birthday).

(9.)

Present.

(10.)

Usual.

(11)

Father. Also Occupation.

(12.)

Mother. (Pull Maiden Name.)

(13.)

W e declare t h a t t h e above is a t r ue s t a t e m e n t of t h e I par t iculars re la t ing t o each of us r e spec t ive ly ; a n d t h a t Marriage1 was solemnized between us on t h e d a t e and a t t h e place ment ioned according t o 2

Signatures of Par t ies .

Signatures of Witnesses .

1,8 being 4

do he reby certify t h a t I h a v e th i s d a y du ly celebrated Marriage be tween t h e above-named par t ies after notice ( ' h a d been dispensed wi th by permission of Esq . J .P . ) a n d after declara t ion du ly m a d e as by law required [ s a n d wi th the wr i t t en consent of6 ] .

D a t e d this d a y of 19

S igna ture of Minister, Governmen t S ta t i s t , or Regis t ra r of Marriages.

l.AddBy Banns or By Licence (if such is the case).

2. Add "the rites of the Church of England," or as the case maybe; or, if the marriage is before a Registrar &c, " the form of maniage prescribed by Law."

3. Name of celebrant.

4. Designation and Denomination (e.g., a Minister of the Roman Catholic Church).

5. Strike out these words If inapplicable.

6. Name and relationship tominor(?.0., ."John Jones, father of th Bride").


F O U R T H SCHEDULE—cont inued .

I N T H E S T A T E O F V I C T O R I A .

I N T H E C O M M O N W E A L T H O F A U S T R A L I A .

F o u r t h Schedule. Ac t No . 2691 and Act No. 2720. F o r m B .

C E R T I F I C A T E O F M A R R I A G E .

Yea r 19 . Par i sh or Church Dis t r ic t . Denomina t ion

[B.

No. in Register.

(1-)


(2.)


Party.

( 3 )


Divorced).

(4.)

Children by each former

Marriage.

Living.

(5.)

Dead.

(6.)

Birthplace.

(V.)

Occupation.

(8.)

Age, in years (last

Birthday).

(9)

Exact Residence of each Party.

Present.

(10.)

Parents' Names.

Father. Usual. Also Occupation.

(U.) (12.)

Mother. (Full Maiden Name.)

(13.)

W e declare t h a t t h e above is a t rue s t a t e m e n t of the par t icu lars re la t ing t o each of us respec t ive ly ; and t h a t Marriage was solemnized between us on the d a t e a n d a t t h e place ment ioned according t o

Signatures of Par t ies .

S ignatures of Witnesses .

I , being do hereby certify t h a t I h a v e this d a y d u l j ce lebrated Marriage be tween t h e above-n a m e d par t i es after not ice (had been dispensed wi th by permission of Esq . J . P . ) a n d after declara t ion duly m a d e as by law required [and wi th the wr i t t en consent of ] .

D a t e d this d a y of 19

S igna ture of Minister , Gove rnmen t S ta t i s t , or Regis t ra r of Marriages.

FOTJKTH SCHEDULE—continued.

IN THE STATE OF VICTORIA.

IN THE COMMONWEALTH OF AUSTRALIA.

Fourth Schedule. Act No. 2691 and Act No. 2720. Form C.

CERTIFICATE OF MARRIAGE.

Year 19 Par i sh or Church Distr ict . Denominat ion . [C.

No. in Register.

(1.)

When and where

Married.

(2.)

Name and Surname

of each Party.

(3.)

Conjugal Condition, also Bate of Decease

of each former Spouse (if Widowed), or Date of Order Absolute (if

Divorced).

(4->

Children by each former Marriage.

Birthplace.

(7-)

Occupation.

(8.)

Age, in years (last

Birthday).

(9.)

Exact Residence of each Party.

Parents' Names.

No. in Register.

(1.)

When and where

Married.

(2.)

Name and Surname

of each Party.

(3.)



Divorced).

(4->

Children by each former Marriage.

Birthplace.

(7-)

Occupation.

(8.)

Age, in years (last

Birthday).

(9.)

Present.

(10.)

Usual.

(11.)


(12.)

No. in Register.

(1.)

When and where

Married.

(2.)

Name and Surname

of each Party.

(3.)



Divorced).

(4->

Living.

(5.)

Dead.

(6.)

Birthplace.

(7-)

Occupation.

(8.)

Age, in years (last

Birthday).

(9.)

Present.

(10.)

Usual.

(11.)


(12.)

Mother. (Fnll Maiden Name.)

(13.)

•

We declare that the above is a true statement of the particulars relating to each of us respectively ; and that Marriage

was solemnized between us on the date and at the place mentioned according to

f Signatures of Parties.

Signatures of Witnesses

I. being do hereby certify that I have this day duly celebrated Marriage between the above-named parties after notice (had been dispensed with by permission of Esq. J.P.) and after declaration duly made as by law required (and with the written consent of . ).

Dated this day of 19

Signature of Minister, Government Statist, or Registrar of Marriages.

3252 MAttRIAGE ACT 1915.

Section 157. FIFTH SCHEDULE.

To THE SUPREME CODRT OF THE STATE OF VICTORIA.

Divorce and Matrimonial Causes Jurisdiction.

The day of 19 . The petition of A.B., of showeth—

1. That your petitioner was on day of 18 lawfully married to C.B. [if respondent is the wife, state here name prior to marriage] at [here stale where the marriage look place].

2. That on day of 19 and on other days between that day and [or] in the months of and and 19 the said C.B. committed [adultery] with of [or] was guilty of [here state acts or conduct for vihich relief is sought].

Your petitioner therefore prays that your Honours will be pleased to decree [here set ovt the relief sought], and that your petitioner may have such further and other relief in the premises as to your Honours may seem meet.

Petitioner's signature—

MARRIAGE ACT 1915.

Documents