Domicile-Petitioner born in New ZealandRespondent husband born in VictoriaSeparation-Vagrant husband. The parties were married at Wellington and had three children. The respondent husband was born in Victoria and the petitioner (asking for a divorce) in New Zealand. The respondent had at one time become domiciled in New Zealand, In 1917, the petitioner was living in Dunedin and the respondent in Auckland. They then mutually agreed to live apart after which they never met again. The respondent then returned to Victoria and the petitioner stated that he resided in that State. The respondent could not now be found, he had left his family, emigrated and become virtually a vagrant. Held, that there was an unrebutted presumption that the wanderer had returned to and resumed his domicile of origin and therefore the Court had no jurisdiction. LEAK . LEAK, 1924 G.L.R. 248. [New Zealand.]

Dissolution of marriage-Collusion. In a husband's suit for dissolution of marriage it was shown that shortly before the adultery charged, the husband had complained to his wife and the co-respondent of the wife's going out with the co-respondent, but she had continued to do so. The co-respondent then came to lodge at the house where the husband and wife were staying, and lived for at least six days during that period, to the knowledge of the husband, in adultery with the wife. The husband suggested that his wife and he should go to another house, which she refused to do, and then the husband threatened to leave the house, but did not do so. The husband also had a quarrel over the matter with the co-respondent. The petitioner was of weak physique and character. Held, on the evidence, that there had not been collusion, nor was the husband accessory to the adultery, and, in the circumstances that the papers need not be forwarded to the Crown Proctor. CHAMPION v. CHAMPION AND COOPER, 1923 S.A.S.R. 100. [South Australia.

Practice Affidavit verifying petition Negativing collusion or connivance Whether section mandatory. Sect. 54 of the Divorce and Matrimonial Causes Act 1908, is directory and not mandatory. ScoтT v. SCOTT, 1924 N.Z.L.R. 191; G.L.R. 208. [New Zealand.]

Dissolution of marriage—Adultery-Acts of familiarity Evidence Costs. During a period of over five months the co-respondent took the respondent, a married woman to his knowledge, and living apart from her husband, to various places of amusement. Subsequently, he openly visited her weekly, at night, at various houses where she resided. Other residents in the same houses had access to the respective rooms in which the respondent and co-respondent passed their evenings, but there were occasions when these residents were away. On some of these occasions the parties had opportunities to commit adultery. There was also evidence that the parties had made evening visits to

the sea-side, but passed the time in frequented localities. Apart from the co-respondent and respondent having kissed each other, there was no evidence of indecorous conduct, and both denied having committed adultery. Held, that there was not sufficient evidence to establish adultery, but that the co-respondent, on account of his indiscreet and suspicious conduct, must pay his own costs. LANGE v. LANGE AND THOMAS, 1923 S.A.S.R. 127. [South Australia.]

Dissolution of marriage--Adultery-Evidence of petitioner Corroboration.-Evidence of a petitioner which is not corroborated may be acted upon in a suit for dissolution of marriage. DENMAN V. DENMAN & REID, 1924 S.R. (Q.) 191. [Queensland.]

Matrimonial Causes Act, 1899 No. 14, s. 24 (2) Dissolution of marriage-Wife's petition -Adultery-Notice to woman charged-Service of notice. In proceedings for dissolution of marriage by a wife founded on her hus. band's adultery, the notice required to be given to the woman with whom the wife in her petition alleges that her husband has committed adultery, must, unless the Court otherwise orders, be served personally on such woman. DIVORCE PRACTICE NOTE, 41 W.N 56. [New South Wales.]

Evidence-Proof of adultery-Admission by respondent on oath of adultery-Evidence Act 1908, s. 7.-Gaze v. GAZE, 1924 N.Z.L.R. 115. [New Zealand.]

Same case: 1923 G.L.R. 341; 1923 Digest, col. 140.

Practice Petition and verifying affidavitLeave granted that petition be signed and verifying affidavit sworn by solicitor.-The intending petitioner was resident in England and proposed to allege in his petition that his wife had committed adultery in Auckland during his absence in England. He was on his way out from England and would arrive in New Zealand about the 23rd November, but would have to leave New Zealand again not later than the first of February. If petition was not filed at once the hearing could not take place until February. Held, that an order should be made that an petition signed by the solicitor for the petitioner might be presented if it was verified as far as practicable by the solicitor, but that the usual affidavit must be sworn by the petitioner and filed as soon as it was possible for him to do so. COLLYNS v. COLLYNS 1924 G.L.R. 297. [New Zealand.]

Petition for dissolution of marriage on the ground of wifes' adultery-Refusal to make a home for wife-Conduct conducing to adultery-Divorce and Matrimonial Causes Act 1863, s. 28.-The petitioner (husband) after his marriage with the respondent had separated from her at the door of the registry office where they were married, and had not lived with her since. Four months after the marriage a child was born of whom the petitioner was the father. The petitioner did not

contribute to the support of the respondent, and, until after an order of the Court which was made against him some twelve months after the birth of the child, he did not contribute towards the support of the child. The petitioner stated that he only married the respondent at her request in order to give the child a name, and that the respondent agreed with him that if he would marry her she would not live with him. The petitioner admitted that before the birth of the child, and on several occasions after the child was born the respondent suggested that they should live together and that he should make a home for her, and that he on all occasions refused to do so. Subsequently the respondent gave birth to a child, of which the petitioner stated he was not and could not be the father. Held, that the conduct of the petitioner in marrying the respondent and then leaving her, and refusing to provide a home for her was conduct conducing to the respondent's adultery, and that the petitioner was not entitled to a dissolution of the marriage. CONNOR v. CONNOR, 1924 W.A.L.R. 88. [Western Australia.]

Desertion-Petitioning wife guilty of adultery-Exercise of discretion in favour of wifePrinciples on which exercised - Marriage Act 1915, ss. 122 (a), 131.-The petitioner was in 1909 married to one M. In May, 1914, she left M. and lived and cohabited with N. In March, 1915, M. divorced the petitioner on account of her adultery with N. There was no issue of the marriage, but a child was born to the petitioner in April, 1915, of which N. was the father. In November, 1915, the petitioner married the respondent, and lived with him until he, having enlisted in His Majesty's forces, embarked for Europe in October, 1916. There was no living child of this marriage. The petitioner had not heard from or of the respondent after he embarked, but she received allotment money on his account until January, 1917, when the payments ceased. The respondent deserted from the forces in January, 1917. From December, 1916, the petitioner cohabited with N. to whom she bore three more children, one of whom was still alive. There was no evidence that the respondent was alive at the present time. The petitioner disclosed the facts, and she and N. gave evidence that they desired to marry in the event of a divorce being granted. Held, that as the respondent's conduct had not conduced to the petitioner's adultery with N. and she had resumed illicit relations with N. whilst still in receipt of allotment money from the respondent, the Court should not exercise its discretion in her favour, and that a decree should be refused. Tickner v. Tickner ([1924] P. 118); Wilson v. Wilson ([1920] P. 20); Aldred v. Aldred (1908 V.L.R. 58); and Donaldson V. Donaldson (1923 V.L.R. 371) discussed. COLLIGAN v. COLLIGAN, 1924 V.L.R. 583. [Victoria.]

Separation by mutual consent-Supervening order on complaint of petitioner under the Destitute Persons Act 1910-Whether separation by mutual consent continued in force

Divorce and Matrimonial Causes Act 1920, s. 4.-On a petition for dissolution of marriage on the ground that in January, 1920, the parties had separated by mutual consent, the petition stated: "My husband left the house. He said that if we couldn't agree we were better apart. He took the two children with him. I had both hands injured at the time

I said I would look after the children when

they got better. He said, "You won't get them." In April, 1921, on the complaint of petitioner an order was made under the Destitute Persons Act 1910 for separation, maintenance, and guardianship of the children, the term of the order with regard to separation being that she be no longer bound to cohabit with her husband. Held, that if the separation in January, 1920, was a separation by mutual consent the petitioner had by reason of the supervening order failed to prove that the mutual consent or agreement on which the original separation was founded had continued in full force down to the date of the petition. FAIRCHILD v. FAIRCHILD, 1924 G.L.R. 9; N.Z.L.R. 276. [New Zealand.]

Same case, col. 149.

Separation order granted by magistrate— Failure to provide maintenance-Husband seeking a divorce-Order rescinding maintenance order. In a suit for divorce it appeared that in April, 1920, a separation order between the parties was made on the complaint of the respondent by the Stipendiary Magistrate, on the ground that the failure of the petitioner to provide maintenance was wilful and without reasonable cause. The order was rescinded 3 years prior to the divorce suit, owing to a temporary reconciliation. Held, that the Court could go not behind the magistrate's first order, and dismissed the petition. LUNN v. LUNN 1924, G.L.R. 157. [New Zealand.]

Husband and wife-Maintenance orderGrounds for refusal-Order relieving from cohabitation-Custody of children.-The mere fact that a married woman was speaking to a man in a public place at night and that she clandestinely wrote a letter and received two from another man, one of a too-friendly nature do not constitute just cause for permanently putting an end to matrimonial co-habitation. The Court of summary jurisdiction considering that the husband's counter-charges of adultery were a fabrication in which the husband did not believe. Held, that there was evidence to justify this conclusion, and false charges remaining unwithdrawn and the Appellate Court not coming to any contrary conclusion, the order relieving the wife from co-habitation should not be interfered with, nor the order giving the custody of the child to the mother, the innocent party, varied. Justices should, in so far as they exercise jurisdiction to relieve a married woman from co-habitation under the Married Women's Protection Act 1896-a jurisdiction which runs parallel with that exercised by the Supreme Court in matrimonial causes-endeavour to guide themselves by those principles which have been laid down for the exercise of the corres

ponding jurisdiction of the Supreme Court. MEANEY V. MEANEY, 1923 S.A.S.R. 339. [South Australia.] .

Separation by mutual consent for more than three years-"Wrongful act or conduct of petitioner--Construction of Statute-Divorce and Matrimonial Causes Amendment Act 1920, s. 4-Amendment Act 1921-22, s. 2 (1).In an opposed petition for divorce on the ground of separation by mutual consent for not less than three years any wrongful act or conduct on the part of the petitioner is an absolute bar to a divorce if in fact it was the effective cause of the separation, whether or not such wrongful act or conduct amounts in law to a definite or recognised matrimonial offence. Dictum of Salmond, J., in Lodder v. Lodder (1923 G.L.R. 122) that the wrong. ful act or conduct" in question must amount to a definite or recognized matrimonial offence disapproved. SCHLAGER v. SCHLAGER, 1924 N.Z.L.R. 1011; G.L.R. 613. [New Zealand.]

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Separation by mutual consent. The petitioner sought a dissolution of marriage on the ground that in January, 1920, the parties separated by mutual consent, and that the separation had continued for three years and upwards down to the date of the petition. The petitioner alleged that there had been a verbal consent to the separation when it took place in January, 1920. In April, 1921, the petitioner obtained an order under the Destitute Persons Act 1910, granting her separation, guardianship of the children of the marriage, and maintenance, and it was a term of the order that she be no longer obliged to co-habit with her husband. Held, that by reason of the supervening order under the Destitute Persons Act 1910, the petitioner had failed to prove that the mutual consent on which the original separation was founded had continued in full force down to the date of the petition, and that the petition must be dismissed. FAIRCHILD v. FAIRCHILD, 1924 N.Z.L.R. 276; G.L.R. 9 [New Zealand.]

Same case, col. 148.

Desertion-Deed of separation still in force at date of alleged desertion-Effect of nonpayment under-Intention to treat as a nullity.

-After separation, in pursuance of a deed providing that husband and wife shall live apart, there cannot be desertion within the meaning of s. 122 (a) of the Marriage Act 1915, until, by express agreement or by conduct both parties have unequivocally indicated their intention to treat the deed as a nullity.

Roe

v. Roe ([1916] P. 163) and Mackenzie v. Mackenzie (1906 V.L.R. 416) followed. Looker v. Looker ([1918] F. 132) distinguished. CRICHTON V. CRICHTON, 1924 V.L.R. 448; 30 A.L.R. 344. [Victoria.]

Desertion. A petition for divorce alleging adultery was filed by the husband on 15th September, 1919, and served three days later. The day after service on respondent, the petitioner informed respondent that for the sake of the children of the marriage he would overlook what had happened and invited

her to return to him. The respondent refused. Subsequently the petition alleging adultery was withdrawn by the petitioner and this petition alleging desertion filed. Held, that the filing of a petition for dissolution of marriage on the ground of adultery precludes the petitioner from pleading that the period of desertion was running during the time the suit was being maintained. WALSH v WALSH, 1923 W.A.L.R. 131. [Western Australia.]

Desertion-Constructive desertion—,, Just cause or excuse "-Conduct not amounting to matrimonial offence.-Sect. 122 of the Marriage Act 1915 (Vict.) provides that a married person may petition for dissolution of the marriage on the ground (inter alia) that “ the respondent has without just cause or excuse wilfully deserted the petitioner and without any such cause or excuse left him or her continuously so deserted during three years and upwards." Held, that in order to show

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just cause or excuse it is not necessary to show that the petitioner has been guilty of a matrimonial offence, but it is sufficient to show that the respondent had reasonable grounds for deserting the petitioner. A husband was guilty of such conduct towards his wife as reasonably justified her in leaving him and remaining away from him, but such conduct did not constitute a matrimonial offence, nor was it such that it could be inferred as a matter of fact, or imputed to the husband as a matter of law, that he intended to break off the matrimonial relationship. Held, that cross-petitions by the husband and wife for divorce on the ground of desertion for three years and upwards were properly dismissed, that of the husband on the ground that the wife had just cause or excuse for her desertion of him, and that of the wife on the ground that the husband had not deserted her. Per Isaacs and Rich, JJ.: Desertion as between husband and wife is always an actual desertion connoting both an act and an intention. The intention of one of the parties and its intimation to the other may be established by the natural ornecessary consequences of the act, for they must be assumed to be contemplated. The question is always" Who is the real deserter? Bain v. Bain (1923 V.L.R. 421; 45 A.L.T. 17) affirmed. BAIN v. BAIN, 33 C.L.R. 317. [High Court.]

Same case: 1923 V.L.R. 693; 29 A.L.R. 461; 1923 Digest, col. 137.

Desertion-Cross application by respondent for divorce on the ground of desertion.— A wife petitioned for divorce on the ground of desertion. The respondent, in his answer, applied for divorce on the ground of desertion by the petitioner. Held, (1) that to establish desertion as a ground for divorce it must be clearly indicated that one party to the marriage contract has put an end to co-habitation against the will of the other; (2) that the refusal of sexual intercourse by a wife confers. on her husband the right to live separately from her and deprives her of the right to complain of desertion; (3) that a prayer in a respondent's answer for divorce on the

Desertion-Domicile Domicile of deserted wife The Matrimonial Causes Acts Amendment Act of 1922, s. 3.-SCOTT v. SCOTT, 1924 Q.W.N.7. [Queensland.]

Petition for dissolution of marriage on the ground of desertion-No cohabitation since marriage-Adultery-Admissions-Evidence. -The petitioner (wife) married the respondent for the purpose of giving a name to their child, which was the result of illicit intercourse. After the marriage the parties never lived together, and as far as the respondent was concerned he never showed any desire to cohabit with the petitioner. Petitioner having applied for a dissolution of marriage on the ground of desertion. Held, following Connor V. Connor (1924 W.A.L.R. 77), supra, that although there may be desertion even where a marriage has never been consummated, desertion cannot have its inception when the parties are living in a state of separation. The petitioner, having been given leave to amend her petition by adding a charge of adultery, relied upon a letter of the respondent, admitting that he had been guilty of that offence. Held, that having regard to the whole of the circumstances, the admission of the respondent was sufficient evidence of his adultery. MAGOR v. MAGOR, 1924 W.A.L.R. 86. [Western Australia.]

constitute desertion. Jackson v. Jackson, (40 T.L.R. 45; [1924] P. 19) followed. BARKER V. BARKER, 1924 N.Z.L.R. 1078; G.L.R. 525. [New Zealand.]

Decree of dissolution obtained by husband on ground of separation for more than three years under deed of separation-Covenant by husband in deed to pay wife annuity— Covenant by wife not to apply for further maintenance-Application by wife for permanent maintenance-Maintenance allowedWife not entitled to any fixed proportion of husband's income-Divorce and Matrimonial Causes Act 1908, ss. 41, 42.--LODDER v. LODDER, 1924 N.Z.L.R. 355. [New Zealand.] Same case 1923 G.L.R. 673; 1923 Digest, col. 146.

Order for payment of alimony-Refusal to pay-Contempt of Court-Writ of attachment -The Matrimonial Causes Jurisdiction Act of 1864, ss. 47, 52-Rules of Court.-A judgment or order whereby a husband is ordered to pay alimony to his wife is not enforceable by writ of attachment. The right to issue a writ of attachment granted by O. XXVIII., r. 3, of the General Rules of 1863, is taken away, not by O. XLVII. of the Rules of Court 1900, but by the joint effect of the repeal of O. XXVIII., and O. I., r. 2, of the Rules of Court of 1900. MARGETTS v. MARGETTS, 1924 S.R. (Q.) 200. [Queensland.]

Matrimonial Causes Act, 1899 No. 14, ss. 43, 56, 57-Alimony-Judicial separationDeed Covenants Power to order permanent alimony. A deed of separation (inter alia) provided that a certain annuity should be paid to the wife, but in the event of her taking proceedings for maintenance, divorce (including proceedings for past misconduct) or restitution of conjugal rights against her husband, the annuity should be reduced by a specified sum for every such breach and the wife should accept such reduced annuity in full satisfaction of any claims for alimony or otherwise. Thereafter the wife, in a suit for dissolution on the ground of adultery committed prior and subsequently to the deed, obtained a decree for judicial separation, and subsequently she applied for an order for permanent alimony. Held, that the deed in these circumstances did not debar her from applying for such order, and that there must be a reference to the Registrar as to the means of the parties. A covenant by a husband or wife not to sue for divorce founded on future misconduct is invalid, and a covenant not to sue for increased alimony in the event of such divorce is also invalid. Wirth v. Wirth (40 W.N. 104) affirmed. WIRTH v. WIRTH, 24 S.R. 150; 41 W.N. 39. [New South Wales.]

Matrimonial Causes Act 1899 ss. 39, 40, and 43-Judicial separation-Application for permanent alimony-Principles to be applied. -In a suit for dissolution of marriage brought against the husband on the ground of adultery admissions were made on behalf of the hus

band, that he had been guilty of adultery and, the husband consenting, a decree for judicial separation was pronounced. When approaching the question of permanent alimony, the Judge in Divorce, who had been furnished with a report by the Registrar as to the means of the parties, took into consideration the incomes of both parties, also the fact that the husband in addition to the actual income coming to him, was possessed of property which was either then available to produce income or shortly would become income producing. Held, that the Judge was correct in so approaching the question, and further, that although the usual practice when approaching the question of alimony, is to divide the agrregate income of the parties by three and to give one third to the wife (deducting from her third the amount (if any) she is actually receiving) in a case of judicial separation, the Court in entitled to give up to one half of the income. There is no limitation to a one third. BROWNE V. BROWNE, 24 S.R. 575; 41 W.N. 155. [New South Wales.

Custody of children-Divorce on ground of adultery of father-Conduct of motherPetition by father for custody-CostsWife's costs.--Petition by a divorced husband for custody of the child of the marriage, a son. The marriage had been dissolved by reason of the husband's adultery, and the custody of the child had been given to the mother, the husband being ordered to pay £5 per week for the support of the wife and £2 per week for the support of the child. In February 1922, the husband's liability with respect to the wife was ended by her acceptance of a money commutation. Shortly after the decree had been made the wife went to the United States, leaving the child in the custody of her parents. The £2 per week had been ordered to be paid to them until the further order of the Court, and their care of the child had been all that could be desired. The wife had become engaged to an American citizen, and would have been married to him prior to the present petition but that he had some business to wind up. Apart from this circumstance of being engaged to an alien, there was no suggestion that she was not a fit person to have the custody of the child. The husband had been previously married in England, and there divorced on the ground of adultery. Held, (1) that the husband's application should be refused without dismissing the petition; that the £2 per week should continue to be paid to the grandparents so long as the child remained with them; and that the child should not be removed from their custody by either parent without the leave of the Court; that either party might apply at any time for any alteration that might appear to be for the advantage of the child, and that in any case the position and prospects of the child should be notified to the Court within two years. (2) With regard to costs, it was held that, as the wife had substantially succeeded, she was allowed her costs (£35), and also her costs of attending from America to be settled by the

Registrar. JOWETT v. JOWETT, 1924 G.L.R. 335. [New Zealand.]

Covenants

Restitution of conjugal rights-Deed of separation Deserted Wives and Children Act.-A husband and wife separated and thereafter entered into a deed of separation, whereby (inter alia) the husband covenanted not to sue for restitution of conjugal rights and the wife covenanted not to take proceedings to compel her husband to allow her any alimony or maintenance. Subsequently the wife took proceedings for maintenance under the Deserted Wives and Children Acts. In a suit for restitution of conjugal rights instituted by the husband against his wife. Held, that, inasmuch as the covenant by the wife, so far as it was an agreement not to take proceedings under the Acts referred to, was not binding upon her, there had been no repudiation by her of the deed; and consequently the petitioner was debarred by his covenant in the deed from obtaining the relief claimed. Davies v. Davies (26 C.L.R. 348); Wirth v. Wirth (25 C.L.R. 402) applied. Williams v. Williams ([1921] P. 131); Walter v. Walter ([1921] P. 302); Mann v. Mann ([1922] P. 238); Palmer v. Palmer ([1923] P. 180) discussed. NOTTING v. NOTTING, 41 W.N. 28. [New South Wales.]

Restitution of conjugal rights-Sincerity of petitioner-Discretion of Court-Divorce and Matrimonial Causes Amendment Act, 1920, ss. 2,3.-An essential condition in a suit for restitution of conjugal rights is the sincerity or good faith of the petitionerthat is to say, a sincere desire on his or her part for the return of the absent spouse and resumption of normal matrimonial relations. If the true object of the petitioner is the ulterior purpose of obtaining a divorce in consequence of the other spouse's disobedience to the decree, the application for restitution is not made in good faith and will be dismissed. The Court will not, however, attribute to a petitioner who is in truth genuinely desirous of the return of the other spouse, and who is genuinely ready and willing to do his or her duty if the other does return, a want of good faith merely because he or she contemplates or intends consequential proceedings in divorce in the event of the other's refuseal to obey the decree. Harnett v. Harnett ([1924] P. 41; 40 T.L.R. 121) followed. MORRIS v. MORRIS, 1924 N.Z.L.R. 1101; G.L.R. 482. [New Zealand.]

Restitution of conjugal rights-Petition by husband domiciled in New ZealandRespondent abroad-Jurisdiction Service of proceedings. In proceedings for restitution of conjugal rights a respondent who is out of the jurisdiction but domiciled within it may be served abroad with the citation and petition. Dicks v. Dicks (68 L.J.P. 108), and Bateman v. Bateman, (70 L.J.P. 138) followed. This was a motion for an order to set aside an order granting leave to petitioner, the husband, to serve a citation and a copy of the petition for a decree for restitution of conjugal rights upon respondent