of a marriage or for nullity of marriage may within six months after the pronouncing thereof appeal to Her Majesty in Privy Council subject to such terms and conditions as to alimony custody and maintenance of children disposal of property and costs of suit as the court may direct pending such appeal.
For the right of appeal to the Privy Council, see now Order in Council of October 18, 1909, r. 2, title PRIVY COUNCIL.
Matrimonial Causes Jurisdiction Act of
1864. ss. 52-55.52. Persons divorced may marry aga.in.-When the time hereby limited for appealing against any decree dissolving a marriage shall have expired and no appeal shall have been presented against such decree or when any such appeal shall have been dismissed or when in the result of any appeal any marriage shall be declared to be dissolved but not sooner it shall be lawful for the respective parties thereto to marry again as if the prior marriage had been dissolved by death
Clergy not obliged to marry such persons.-Provided always that no clergyman of any religious denomination shall be compelled to solemnize the marriage of any person whose former marriage may have been dissolved on the ground of his or her adultery or shall be liable to any suit penalty or censure for solemnizing or refusing to solemnize the marriage of any such person.
This section applies also where judgment of nullity of marriage is given ('l'he Matrimonial Causes Act of 1875, s. 10, post).
Judgment for dissolution of marriage is a judgment nisi in the first instance (The Matrimonial Causes Act of 1875, s. 7, post). A further marriage before judgment is made absolute is invalid (Moore v. Widdicombe (1867), 4 W.W. &
a'B. (L.) 109; McLennan v. White (1908), 11 N.Z.G.L.R. 178).
53. Actions of crim. con. abolished.-After this Act shall have been six months in operation no action shall be maintainable in Qneeusland for cl'iminal conversation.
For the right to recover damages from an adulterer, see s. 28, ante.
54. Rules to be laid before Parliament.-All rules and regulations concerning practice or procedure or :fixing or regulating fees which may be made by the court under this Act shall be laid before both Houses of Parliament within one month after the making thereof if Parliament be then sitting or if Parliament be not then sitting within one month after the commencement of the then next session of Parliament.
The reference to ''both Houses of Parliament'' is now taken to refer to the Legislative Assembly alone (The Constitution Act Amendment Act of 1922,
s. 2, title CONSTITUTION).
For power to make rules of eourt, see s. 48, ante, and The Supreme Court Act of 1921, s. 11, title SUPREME COURT.
55. Return of fees.-The registrar or other officer appointed by the court shall cause to be prepared in each year ending thirty-first of December a return of all the fees and moneys levied in such year on account of the fee funcl of the court in its Divorce and Matrimonial Causes Jurisdiction and of any other fund under the authority of this Act
Provided always that such return as aforesaid shall be presented to both Houses of Parliament on or before the thirty-first of May in each year if Parliament is then sitting and if Parli~ment is not sitting then such returns shall be presented within one month of the :first meeting of Parliament aftel' the thirty-first of May ill each year.
See first note to A. 54, antC'.
ss. 56-59. Marri(~ge
a,nd Divorce. [Vol. VI.
56. Co-respondent may be dismissed if evidence insufficient.-In all cases in which on the petition of a husband for a divorce the alleged adulterer is made a co-respondent or in which on the petition of the wife the person with whom the husband is alleged to have committed adultery is made a respondent it shall be lawful for the court after the close of the evidence on the part of the petitioner to direct such co-respondent or respondent to be dismissed from the suit if it shall think there is not sufficient evidence against him or her and in its discretion to award him or her costs.
As to joinder of a eo-defendant, see s. 23, ante, and notes thereunder.
Where there is no evidence Hgainst the co-defendant l1e should be dismissed from the suit (Fuller v. Fuller, [1915] St. R. Qd. 111; [1915] Q.W.N. 19).
There is no rule of ln w or practice to prevent a finding of adultery agaiust a co-defendant ou the mteorrohorate<l evidence of the defendant (French v.
French, [1910] St. R. Qd. 190; [1910) Q.W.N. 29).
Where the only evidence of adultery was the defendant's evidence that the co-defendant was the father of two of her children, the co-defendant was dismissed from the suit (Rogers v. Rogers ( 1915), 11 Tas. L.R. 34). Where the co-defendant cross-examined the plaintiff as to adultery by the plaintiff, hut offered no evidence of ndultery, he was refused his costs (ibid.). Where the grounds for suspicion that the co-defendant was guilty of adultery are unsubstantial, he will 1}e allowed his costs on being dismissed (Rowe v. Rowe (1918), 14 Tas. L.R. 28). See further, as to n co·defendant and costs, the noteB to s. 29, ante.
For form of judgment dismissing a e.o-clefenclant, see R.S.C. ( 1900), St•hed.
I, Part V, Sec. II, form 9, title PRACTICE.
Where a co-defendant is dismissed under this section it is necessary for a husband petitioner to obtain leave under s. 23, ante, to proceed without joining a eo-defendant (Fnller v. Fuller, [1915) St. R. Qd. 111; [19151 Q.W.N.
19). The amended petition must be served on the Attorney-General (ibid.).
57. Power to administer oaths.-Registrars surrogates commis- sioners for taking oaths in the court and all other persons now or here- after authorised to administer oaths shall have power to administer oaths under this Act.
58. Costs may be taxed.-The bill of any proctor attorney or solicitor for any fees charges or disbursements in respect of any business transacted in the court and whether the same was transacted before the full court or before the judge ordinary shall as well between proctor or attorney or solicitor and client as between party and party be subject to taxation by the taxing officer of the court and the mode in which any such bill shall be referred for taxation and by whom the costs of taxation shall be paid shall be regulated by the rules and orders to be made under the Act and the certificate of the taxing officer of the amount at which such bill is taxed shall be subject to appeal to the judge ordinary of the said court.
For power to deal with costs, see ss. 46, 29, ante.
The test as to whether the costs of a second counsel should be allowed is whether a prudent person not compelled by poverty would come into Court without two counsel (Kroehn v. Kroehn (1912), 15 O.L.R. 137).
59. Power of judge ordinary over practitioners.-'rhe judge ordinary of the court shall have and exercise over proctors solicitors and attorneys practising in the said court the like authority anU. control as is now exercised by the Supreme Court over persons practising therein as proctors solicitors or attorneys.
.Jfrdr·imonial Causes JurZ:sdiction Act of
1864. ss. 60-66.60. Commissioners for taking oaths.-It shall
oe
lawful for the judge ordinary of the court to appoint by commission under seal of the eourt any persons practising as solicitors in Great Britain or the colonies or any of them to administer oaths and to take declarations or affirmations to be used in the said court and such person shall be entitled from time to time to charge and take such fees as any other persons performing the same duties in the court may charge and take.61. Affidavits &c. how sworn abroad.-ln cases where it is necessary to obtain affidavits declarations or affirmations to be used in the conl't from persons residing in foreign parts out of Her Majesty's dominions the same may be sworn declared or affirmed before any foreign local magistrate or other person having authority to administer an oath there.
62. Affidavits how sworn in Great Britain &c.-Affidavits declara- tiom; and affirmations to be used in the court may be sworn and taken in England Scotland Ireland the Isle of :Man the Channel Islands or any colony island plantation or place out of Queensland under the dominion of Her Majesty before any court judge notary-public or pc1·son lawfully authorised to administer oaths in such country colony island plantation or placP respeetiv~?ly and all judges and officers of the ('01!1"1 shall tnke jndi(·ial notice of tlw Sl'al or signature as the l'ase may IH' of nn.v :·nwh ju<lg(~ notary-publit~ or pt>I'son which shall be attached
l-ln~pP!Hil'd or snbsl"J'ilwd to any such affidavit declaration or affirmation
OJ' to any other document.
[63, 64. Rep. by The Criminal Code A.ct, 1899, s. 3, title CRIMINAL
h\W.]
65. Construction.-In the construction of this Act the words ''court'' and ''Supreme Court'' shall unless repugnant to or incon- sistent with the context mean the Supreme Court of the Colony of queensland.
66. Short title.-This Act shall be styled and may be cited as ''The Matr~~nwnial Causes h~risdiction Act of 1864.''
For the collective title, see The Matrimonial Causes Acts Amendment Act of 1931, s. 1 (2), post.
ss. 1-4.
J.Y'.arriage and Divorce. [Vol. VI.
THE MATRIMONIAL CAUSES ACT OF 1875.
(39 Vic. No. 13.)
AS AMENDED BY
The Acts Shortening Act Amendment Act of 1903 (3 Edw. VII. No. 10).
The Statute Law Revision Act of 1908 (8 Edw. VII. No. 18).
A.·n Act to Amend "The ]Jlatrimo·nial Causes Jw'iscliction Act of 1864.' ~
[Assented to 27th November, 1875.]
[Preamble ?'cpealed by The Statute Law Revision Act of 1908, s~ 2, title ACTS.]
[1. Rep. by The Statntc Law Revision Act of 1908, s. 2, title AcTs.
The repealed section t·epealecl ss. 4, 5 and' 50 of The 1'J,fat1·imonial Causes·
Jnrisdich'on Act of 1864, ante, and so m 11ch of s. 3 of that Act as provided that the .fudge ordinary alone should not lwve powe1· M' author'ity to hear ancl determine petitions for the dissolving of or anmdling man-iage.]
2. Judge ordinary to determine all matters sitting alone. 23 & 24 Vic. c. 144 s. 1.-The judge ordinary sitting alone or with one or more of the other judges of the said court shall have full authority to hear and determine all petitions presented to the Supreme Court of Queens- land in its Matrimonial Causes Jurisdiction for the dissolving of or annulling marriage.
See The Matrimonial Causes Jurisdiction Act of 1864, s. 3, ante, and The Supreme Court Act of 1892, s. 14, title SUPREME COURT.
3. Appeal from judge ordinary. 28 Vic. No. 29 (Q) sec. 50.-Any party dissatisfied with any judgment decision or order of the judge ordinary may appeal therefrom to the full court in the same manner and within the same times as appeals may for the time being be made from any judgment decision or order of a judge of the said court in its.
Common La\Y Jurisdiction.
As to appeals to the Full Court, see The Supreme Court Act of 1892, ss. 4·7 ~
title SL'PREME COVRT.
An appeal from the decision of a trial judge sitting without a jury on a question of fact is a rehearing and it is the duty of the appeal court to form its o;vn opinion of the facts as appearing by the evidence (Dearman v.
Dearman (1908), 7 C.L.R. 549; Henselien v. Henselien, [1933] St. R. Qd. 32;
Granzella v. Granzella, (1938] St. R. Qd. 78 (application for variation of order for maintenance)). But the trial judge's decision should not be reversed where it depends upon the credibility of witnesses giving viva voce evidence and is not clearly wrong (Dearman v. Dearman, supra; Henselien v. Henselien, supra;
Maloney v. Maloney (1908), 7 C.L.R. (i15; Moses v. Moses (1920), 27 C.L.R.
490).
4. Any judge may act for judge ordinary.-Any judge of the Supl'eme Court may at tht> request of the judge ordinary act for him in any cause or matter ancl when so acting shall have all the powers and authorities of the jndg(' ortlinary.
See now The Supreme Court Aet of 189::!, s. 14, title SUPREME COURT.
Jlfa.tY·imonial CaHses Act of
1875. ss. 5-7.5. Matters may be ordered to be heard by the full court. 23 & 24 Vic. c. 144 s. 2.-The judge ordinary may where he shall deem it .expedient direct that any matter shall be he~rd and determined by the full court,
6. New trial. 28 Vic. No. 29 (Q) sec. 5.-Where anv trial shall be had by a jury before the full court or the judge ordin~ry or upon .any issue directed by the full court or judge ordinary such trial shall be had and the evidence shall be recorded in the same manner as trials of causes in the said court in its Common Law Jurisdiction and any P<l;rty dissatisfied with the result of such trial may apply for a new tr1al.
All sueh applications shall be made to the full court.
The verdict of a juxy will be set aside only when it is not such as reasonable men, npplying their minds to the evidence, could have given (Sarnpson v.
Sampson (1911), 13 C.L.R. 338; Wharton v. Wharton, [1928] St. R. Qd. 251).
As to when a new trial will be granted on the ground of availability of further evidence, see Dyson v. Dyson, [1925] St. R. Qd. 153; [1925] Q.W.N: 15;
Ryan v. Ryan (1914), 18 C.L.R. 601; Stallan v. Ed1vards, [1918] St. R. Qd. 210.
7. Decree for divorce . . . . to be. decree Nisi in first instance.
23 & 24 Vic. c. 144 s. 7. Intervention after decree Nisi.-Every decree for a divoree shall in the first instance Le a decree Nisi not to be made .absolute till after tlw t•xpiration of such time not being less than three months ft·om tltc pronouneing thereof as the court shall by general or special order from time to time direct and during that period any person shall be at liberty in such manner as the court shall by general or special order in that behalf from time to time direct to show cause why such decree should not be made absolute by reason of the same having been obtained by collusion or by reason of material facts not having been brought before the court
And on cause being so shown the court shall deal with the case by making the decree absolute or by reversing the decree Nisi or by requiring further inquiry or otherwise as justice may require.
Attorney-General may intervene at any stage.-At any time during the progress of the cause or before the decree is made absolute any person may give information to the Attorney-General of any matter material to the due [decision] of the case who may thereupon take such -steps as he may deem necessary or expedient
And if from any such information or otherwise the Attorney- General shall suspect that any parties to the suit are or have been actin~
in collusion for the purpose of obtaining a divorce contrary to the justice of the case or that any material facts have not been pleaded m·
brought before the court he may intervene in the suit alleging such collusion or other material facts.
The marginnl note to, and the third paragraph of, this section were verbally correetcfl by The Aets Shortening Act Amendment Act of 1903, s. 10, title AcTs.
As to the ciTed of eollusion, see The Matrimonial Causes Jurisclietion Act of 1864, ss. 25, 211, antf.
Tntervention.-·.Tnrlgment ni.~i must be sl.'rved on the Attorne~·-Genernl (R.R.C. (HlOO), Ord. 43, r. 1, title PRACTI~E) . . For,the right .of ,th~ Attorney- Gmwral to intervene, see also The Matnmomal Causes Junsdtetwn Act of 1 R<i4, A. 22, anlf.
s. 7. Jli
arriage ancl Divorce. [Vol. VI.
With respect to intervention, see further R.S.C. (1900), Ord. 12, IT. 18-20;
Or d. 25, l'l'. 24, 25; Ord. 43, title PRACTICE.
A party to the suit cannot show cause (Harl1~m v. HaTlum (1927), 44 N.S.W.W.N. 46; Fi.tts v. Fitts (1894), 20 V.L.R. 401). Thus a co-defendant cannot show cause why judgment should not be made absolute (Adames v.
Adames,, [1920) Q.W.N. 8). As to whether the Court has jurisdiction to make an ~rder rescinding a decree nisi for dissolution of marriage upon the motion of the petitioner, see Skinner v. Sk1:nner (1925), 28 \V.A.L.R. 53. A stranger to the suit may himself show cause on the ground that material facts have not been brought to the knowledge uf the Comt and is not limited to giving information of such facts to the Attorney-General (Brown v. WaUers (1931), 46 C.L.R. 290). A person is entitled to show cause, even though a close relation of one of the parties and acting in the interests and forwarding the wishes of such party (ibid.).
The words ''during that period'' refer to the period between decree nisi and decree absolute, and are not limited to the period between decree nisi and the expiration of such time as the Court may have directed as the time within which cause may be shown (ibid.). The Attorney-General may intervene at any time before the decree n,isi is made absolute, even though the period limited in such decree has expired (Jobson v. Jobson (1910), 30 N.Z.L.R 48). It appears that there can he no showing cause or intervention after the decree absolute is pronouncecl in Court. See CTown Solicitor for New Sm1th Wales v.
St1tbbs (1929), 42 C.L.R. 312.
The entry of an appearance by a pers,on seeking to show cause or to intervene under this section, within the time limited by a decree nisi. makes his application in time (Smith v. A.-G. for Victor,ia (1925), 36 C.L.R. 576).
As to whether collusion in another suit between the same parties is a ground for intervention by the Attorney-General, see Bales v. Bales, [1927) St. R. Qd.
246; [1927) Q.W.N. 42; 21 Q.J.P.R. 78. Intervention by the Attorney-General is not limited to cases where collusion is suspected (Cooper v. Cooper ( 1931), 48 N.S.W.W.N. 60; cf. Bruell v. Bruell (1922), 39 N.S.W.W.N. 170).
The words "material facts not having been brought before the Court"
include material facts occurring after decree nisi (Brown v. Walters (1931),
4() C.L.R. 290; Jobson v. Jobson (1910), 30 :N.Z.L.R. 48). They are not limited to suc1t facts as are relevant to the issues in the suit, and would be capable cf constituting a bar if disclosed at the hearing, but include facts which, if known, would have deterred the Court from making the decree without ful'ther inquiry (Miller v. Miller, [1927) V.L.R. 262; Adams v. A darns, [1928] V.L.R.
90).
Where the petitioner gives notice that he does not intend to contest the Attol'ney-General 's plea and does not appear, the decree nisi may be rescinded without proof of such plea (Fitzgerald v. F-itzgerald (1933), 50 N.S.W.W.N.
179 ).
As to the right uf the Attorney-General to withdraw an issue sent for trial, see Whittaker v. Wh:ittaker, [1904) Q.W.N. 49.
'fhe Attorney-General is not liable to pay or entitled to receive costs where he intervenes under this section (A.-G. v. Holland (1912), 15 C.L.R. 46).
INhere no knowledge of the proceedings has come to the defendant until after judgment ni.~i, see Donaldson v. Donaldson, [1933) Q.W.N. 16.
See further J'oske: Lavvs of Maniagc and Diyorce in Australia (2nd ed.), pp. 546 ct seq.; Halsbury 's Laws of England (2nd ed.), Vol. 10, pp. 768 et seq.
Judgment Absolut{l.-A decree for nullity of maniage should be made absolute in the first instance (Thomas v. Norris, [1906) Q.W.N. 10; Liddell v.
Moss, [1920) St. R. Qd. 104,; [1920) Q.W.N. 17; Hathaway v. Hathaway, [1929] Q.W.N. 41).
A respondent has no right to have the judgment nisi made absolute. See Hanson v. Hanson (1937), 58 C.L.R. 259, at p. 271; Onsey v. Ousey (1875), 1 P.D. 56.
Judgment will not ordinarily be made absolute until three months after service of the judgment nisi on the Attorney-General (Deickman v. Deickman,
f 1904] Q.W.N. 2; Turner v. Turner, [1913] Q.W.N. 26), and this rule will not be departed- from merely on the ground that the Attorney-General consents,
(Webber v. Webber, [1925] St. H .. Qd. 15; [1925) Q.W.N. 1).