despatch of such part of the business of the said court as can in the opinion of the said judge ordinary with advantage to the suitors be heard in chambers and such sittings shall from time to time be appointed
by the said judge ordinary.
As to trial of actions in c.hambers, see The Matrimonial Causes Act of 1897, post.
8. Power of judge ordinary in chambers.-The said judge ordinary when so sitting in chambers shall have and exercise the same power and jurisdiction in respect of the business to be brought before him as if sitting in open court.
9. Judicial separation.-A sentence of judicial separation (which shall have the effect of a divorce a mensa et thoro under the existing law and such other legal effect as herein mentioned) may be obtained either by the husband or the wife on the ground of adultery or cruelty or desertion without cause for two years and upwards.
See also s. !3, ante, and notes thereto, and s. 10, post.
Damages may be recovered from an adulterer. See ss. 28, 53, post.
To establish jurisdiction to decree judicial separation both parties must be
€ither resident or domiciled in this State. See Halsbury 's Laws of England (2nd ed.), Vol. 10, p. 691; Heymann v. Heymann (1921), 21 N.S.W.S.R. 727.
As to domicil, see notes to s. 1, ante.
A decree for judicial separation cannot be made by consent of the parties (O'Kane v. O'Kane, [1908] St. R. Qd. 202; Brown v. Brown (1906), 4 C.L.R.
595). .
As to adultery, see notes to s. 21, post.
CrueltY".---.To constitute cruelty there must be actual physical violence or danger to life, limb or health, bodily or mental, or a reasonable apprehension of it (Ohman v. Ohman (1896), 7 Q.L.J. 19; Hamilton v. Hamilton, [1903]
Q.W.N. 56). With respect to acts of cruelty affecting mental health only, see Stoneham v. Stoneham (1904), 29 V.L.R. 732.
The future safety of the petitioner is the ground of the Court's inter- position; conduct complained of must therefore be so far referable to permanent
causes as to be likely to recur (Watkins v. Watkins (1897), 7 Q.L . .J. 167;
Graham v. Graham, [1913] Q.W.N. 38).
Til-treatment of children may constitute cruelty to a spouse (Kennedy v.
Kennedy (1873), 4 A.J.R. 106; Splatt v. Splatt (1886), 7 N.S.W.L.R. (D.) 1).
Matrimonial Causes Jurisdiction .Act of
1864. ss. 9, 10.In considerin~ evid~~ce of. cruelty the position of the two spouses must be regarded, and If a Wife by rmproper conduct provokes cruelty she will not be entitled to relief (Beck v. Beck; (1862), 1 W. & W. (I.E. & M.) 199).
Estoppel by a deed of separation from reliance on acts of cruelty prior to such .deed does not prevent evidence of such acts being given for the purpose of showmg the nature of subsequent alleged acts of cruelty (Watkins v. Watkins, su.pra).
Evidence that a husband has been bound over to keep the peace towards his wife is admissible in support of a charge of cruelty (MacCartney v.
MacCartney (1877), 3 V.L.R. (I.P. & M.) 81).
See further Halsbury 's Laws of England (2nd ed.), Vol. 10, pp. 649 et seq.·
English and Empire Digest, Vol. 27, pp. 281 et seq. ' Deserti.on.-A finding by justices of desertion in proceedings under The Deserted W1ves and Children Act of 1840, ante, is not evidence of desertion in an action for judicial separation (Sooti v. Sooti (1893), 7 Q.L.J. (N.C.) 77).
As to desertion, see also notes to s. 211 post.
With respect to condonation and the effect of a separation deed on a suit for judicial separation, see S1ttherland v. Sutherland (1882), 8 V.L.R. (I.P. &
M.) 49.
See further Joske: Laws of Marriage and Divorce in Australia (2nd ed.), pp. 51, 114.
10. Proceedings for judicial separation &c.-Application for restitution of conjugal rights or for judicial separation on any one of the grounds aforesaid may be made by either husband or wife by petition to the court
And the court to which such petition is addressed on being satisfied of the truth of the allegations therein contained and that there is no legal ground why the same should not be granted may decree such restitution o£ conjugal rights or judicial separation accordingly and where the application is by the wife may make any order for alimony which shall be deemed just.
In a matrimonial action the petition is deemed to be the statement of claim (R.S.C. (1900), Ord. 22, r. 34, title PRACTICE). Petition must be filed before the issue of a writ of summons (R.S.C. (1900), Ord 7, r. 7). As to petition and verification of petition, see s. 36, post; Ord. 7, rr. 7-10; Ord. 63; Sched. I, Part I, Sec. VII, B.
The petitioner must have his writ ready on the filing of the petition so that the name of the judge to whom the action is assigned may be marked on the petition (Smith v. S'mith, [1914] St. R. Qd. 16; [1914] Q.W.N. 2). As to
endor~ments on the writ of summons, see R.S.C. (1900), Ord. 6, rr. 4, 13;
Sched. I, Part I, Sec. II, G.
As to service of writ of summons and delivery of a copy of the petition, see R.S.C., Ord. 10, rr. 8, 9, 1, 2, and s. 37, post. As to service out of the jurisdiction, see R.S.C., Ord. 11, rr. 1 (5), 4. For form of affidavit of personal service, see R.S.C., Sched. I, Part XII, Sec. II, Form 1. Proof by the plaintiff alone of service of the writ of summons and petition is not sufficient (Tronson v. Tronson, [1918] St. R. Qd. 42; [1918] Q.W.N. 14).
As to defence, see R.S.C., Ord. 25, rr. 22, 23; Sched. I, Part ill, Sec. II, J.
As to reply, see Ord. 27, r. 3. As to proceedings in default of pleadings, see Ord. 31, rr. 19, 20. As to amendment of pleadings, see Ord. 32, rr. 15-17. As to preparation and delivery of issues for trial, see Ord. 37, r. 2. For forms of judgment, see R.S.C., Sehed. I, Part V, Sec. II, Forms 5, 6, 8. As to other proceedings in matrimonial actions, see the rules cited under s. 48, post.
A defendant husband or wife cannot set up a counter-claim for relief, but must bring a separate action (R.S.C., Ord. 22, r. 35), which is assigned to the same judge (Ord. 2, r. 5). As to service of the writ, see Ord. 10, r. 8.
Jndielal Separation.--Soe also ss. 2, 9, ante, and notes thereto. As to reversal of a decree made in the absence of a spouse, see s. 13, post.
s.lO.
Marriage and Divorce. [Vol. VI.
Restitution of Conjugal Rights.-To fo~nd jurisdicti?n in s:rits for restitution of conjugal rights, both of the parties must be e1ther res1dent or domiciled in Queensland or had a matrimonial home here at the time cohabitation ceased. See Halsbury 's Laws of England (2nd ed.), Vol. 10, pp. 691-692.
As to how far it is necessary in a suit for restitution of conjugal rights to show that the petitioner has a sincere desire for restitution of those rights, cf.
Harnett v. Harnett, [1924] P. 126; Palmer v. Palmer, [1923] P. 180;
Woodlands v. Woodlands (1924), 35 C.L.R. 446.
A written demand for cohabitation must have been made and refused.
The affidavit verifying the petition must furnish evidence of this. See R.S.C.
(1900), Ord. 7, r. 10, title PRACTICE. This demand must be couched in concilia- tory terms (Field v. Field (1884), 14 P.D. 26). See further, as to the demand, Ziele v. Ziele, [1923] N.Z.L.R. 589; Halsbury 's Laws of England (2nd ed.), Vol. 10, p. 646.
A respondent willing to return to cohabitation may at any time apply for an order staying proceedings for restitution (R.S.C. (1900), Ord. 28, r. 4).
For the power of the Court to refuse a decree for restitution, see Rayden .and Mortimer on Divorce (3rd cd.), p. 70.
The remedy is available even though there has never been cohabitation between the parties (Fassbender v. Fassbender, [1938] 3 All E.R. 389).
The Court will give effect to a stipulation not to sue for restitution of -conjugal rights contained in a deed of separation by treating such deed as a bar to the action (Leslie v. Leslie, [1912] St. R. Qd. 172; [1912] Q.W.N. 33, also cited under s. 12, post; Wirth v. Wirth (1918), 25 C.L.R. 402). Cf. Ainslie v . .d. inslic (1927), 39 C.L.R. 381. An agreement by husband and wife to live apart will be construed as implying an agreement not to sue for restitution of .conjugal rights (Leslie v. Leslie, s·upra).
The Court may give effect to the deed even though it is not pleaded or set up in defence (Wirth v. Wirth, supra).
A deed of separation which has been repudiated by both parties is no defence to proceedings for restitution (Smythe v. Smythe (1922), 30 C.L.R. 165).
A request by a wife to her husband to live with her, followed by proceedings by her for restitution, amounts to repudiation where her husband has already repudiated it (ibid.). As to whether breach of a covenant in a separation deed not to sue for maintenance amounts to repudiation, see Notting v. Notting (1924), 4:1 N.S.W.W.N. 28; Bakewell v. Bakewell (1928), 28 N.S.W.S.R. 94;
Jones v. Jones (1930), 47 N.S.W.W.N. 41.
An ante-nuptial agreement to live apart after marriage affords no defence to a petition for restitution of conjugal rights (Edwards v. Edwards (1922), '25 W.A.L.R. 125), even if confirmed after marriage (Brodie v. Brodie, [1917]
P. 271).
With respect to the effect of separation agreements, see, further, Articles by W. K. S. Mackenzie in 1 Aust. L.J. 259, 298, and 7 Aust. L.J. 4, and by J". G. Norris in 3 Aust. L.J., at p. 403.
A decree for restitution will be refused if the result of making it would be to treat one of the spouses as deserting the other without reasonable cause .contrary to the real truth of the case (Fielding v. Fielding, [1921] N.Z.L.R.
1069).
Where the respondent was detained in an inebriates home under a court order, a decree for restitution was granted but it was ordered that it should not be served until further notice (Morton v. Morton, [1931] N.Z.L.R. 754).
Resumption of sexual intercourse is not necessarily involved in compliance with a decree for restitution (Bartlett v. Bartlett (1933), 50 C.L.R. 3). As to what constitutes compliance, see ibid.
See generally, with respect to restitution, Halsbury 's Laws of England (2nd. ed.), Vol. 10, pp. 645-648; English and Empire Digest, Vol. 27, pp.
273 et seq.
Alimony· a.nd Maintenance.-As to proceedings and orders for alimony, '8ee also ss. 14, 16, post; R.S.C. (1900), Ord. 47, r. 6A; Ord. 69, rr. 2-20;
;Sched. I, Part XII, Sec. II, Form 4, title PRACTICE. As to orders for maintenance of children, see s. 30, post, and R.S.C. (1900), Ord. 47, r. 6A.
Where a petition for judicial separation is dismissed for failure to prove grounds for judicial separation the Court has no jurisdiction to grant alimony or to make an order as to custody of children (Ewing v. Ewing (1881), 1 Q.L.J.
13).
J11atn:monial Causes J·urisdiction Act of
1864. ss.10, 11.A court of appeal will not interfere with the decision of the trial judge on amount of alimony exeept in cases where some principle of law is involved (Hemm·ing v. Hemming, [1912] St. R. Qd. 13; [1912] Q.W.N. 4).
For an order to secure alimony, see Peclwy v. Pechey (1891), 4 Q.L.J. 104.
As to enforcement of an order for alimony, see s. 47, post, and notes thereto.
11. Wife's separate property protected.-A wife deserted by her husband may at any time after such desertion apply to a police magistrate or if resident in the country to justices in petty sessions or in either case to the judge ordinary or to the court for an order to protect any money or property she may have acquired or may acquire by her own lawful industry and any money or property which she may have become possessed of or may become possessed of after such desertion against her husband or his creditors or any person claiming under him and such magistrate or justices or judge or court if satisfied of the fact of such desertion and that the same was without reasonable cause and that the wife is maintaining herself by herr ()Wn industry or property may make and give to the wife an order protecting her
·earnings and property acquired since the commencement of such .desertion from her husband and all creditors and persons claiming under 'him and snch earnings and property shall belong to the wife as if she were a femme sole
Provided always that every such order if made by a police magis- trate or justices at petty sesRions shall within ten days after the making thereof be entered with the clerk of petty sessions of the police district within the jurisdiction of which the wife is resident and that it shall be lawful for the husband and any creditor or other person claiming under him to apply to the court or to the magistrate or justices by whom such
·order was made for the discharge thereof
Provided also that if the husband or any creditor of or any person -claiming under the husband shall seize or continue to hold any property
<>f the wife after notice of any such order he shall be liable at the suit of the wife (which she is hereby empowered to bring) to restore the specific property and also for a sum equal to double the value of the property so seized or held after such notice as aforesaid
If any such order or protection be made the wife shall during the continuance thereof be and be deemed to have been during such desertion .of her in the like position in all respects with regard to property and contracts and suing and being sued as she would be under this Act if .she obtained a decree of judicial separation.
As to separate property of a married woman, see The Married Women's Property Act, 1890, ss. 3, 4, post.
With this section, cf. The Deserted Wives and Children Act Amendment Act of 1858, s. 4, ante; The Vagrants, Gaming, and Other Offences Act of 1931, s. 18, title VAGRANTS.
The order must state the time when desertion commenced (s. 19, post). It may be made to take effect from the time of the desertion or any later date
(In re Kermodc (1876), 4 S.C.R. 211; 1 Q.L.R., Part I, 55).
As to the effect of a protection order, see also ss. 17-20, post.
For power to discharge an order erroneously drawn up, see In re Kermode, supra.
As to when the Supreme Court will interfere with an 'Order of justices made under this section, see In re Kermode, supra.
ss.12-15.
Marriage and Divorce. [Vol. VI.
12. Principles of ecclesiastical courts to be followed.-In all suits and proceedings other than proceedings to dissolve any marriage the said court shall proceed and act and give relief on principles and rules which in the opinion of the said court shall be as nearly as may be conformable to the principles and rules on which the Ecclesiastical Courts have heretofore acted and given relief but subject to the provisions herein contained and to the rules and orders under this .Act.
The effect of this section is restricted to proceedings in the matrimonial causes jurisdiction of the Court and does not affect the equitable jurisdiction of rthe Court to grant injunctions (Leslie v. Leslie, (1912] St. R. Qd. 172;.
(1912] Q.W.N. 33, also cited under s. 10, ante).
And it is not the effect of this section to confine the Court to the same principles and .rules as formerly prevailed in the ecclesiastical courts. See Wirth v. Wirth (1918), 25 C.L.R. 402.
With respect to the effect of this section, see further J oske: Laws 'Of Marriage and Divorce in Australia (2nd ed.), p. 24.
With respect to when cases may be hear in camera, see Scott v. Scott,.
(1913] A.C. 417; Dickason v. Dickason (1913), 17 C.L.R. 50.
13. Reversal of decree.-Any husband or wife upon the applica- tion of whose wife or husband as the case may be a decree of judicial separation has been pronounced may at any time thereafter present a
petition to the court praying for a reversal of such decree on the ground that it was obtained in his or her absence and that there was reasonable ground for the 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 sentence of separation and of the reversal thereof.
With the concluding provision, cf. s. 18, post; and see s. 20, post.
For procedure under this secti:on, see R.S.C. (1900), Ord. 45, rr. 4-6, title·
PRACTICE.
See Joske: Laws of Marriage and Divorce in Australia (2nd ed.), p. 53.
14. Payment of alimony.-In all cases in which the court shall make any decree or order for alimony it may direct the same to be paid either to the wife herself or to any trustee on her behalf to be approved by the court and may impose any terms or restrictions which to the court may seem expedient and may from time to time appoint a new trustee if for any reason it shall appear to the court expedient so to do.
Orders for alimony are made under s. 10, ante. This section does not apply to orders made under s. 27, post (Blunden v. Blunden (1910), 10 N.S.W.S.R.
793). Cf. Gardiner v. Gardiner (1932), 32 N.S.W.S.R. 22.
A lien for costs as between solicitor and client cannot attach to alimony received and held by the petitioner's solicitor who has been appointed a trustee·
to receive the alimony (Wootten v. Wootten (1896), 2 A.L.R. 99).
15. On judicial separation wife becomes femme sole.-In every case of a judicial separation the wife shall from the date of the sentence and whilst the separation shall continue be considered as a femme sole.
with respect to property of every description which she may acquire or which m;ay come to or devolve upon her and such property may be disposed of by her in all respects as a ferntne sole and on her decease·
the same shall in case she shall die intestate go as the same would have·
gone if her husband had been then dead
111 atrimm'f;ial Causes Jurisdiction Act of
1864. ss.15-18.Provided that if any such wife should again cohabit with her husband all such property as she may be entitled to when such cohabita- tion shall take place shall be held to her separate use subject however to any agreement in writing made between herself and her husband whilst separate.
As to the separate property of a married woman, see now The Married Women's Property Act, 1890, ss. 3, 4, post.
16. Wife may sue and be sued.-In every case of a judicial separa-