Divorce Act 1858 (SA)

No. 22,

A n Act to nnzcnd the Law d n t i r ~ y to Dioorce and i7YixtrhzonitrZ

Cmscs in Smth Aicstrulia,

[Assented to, 24th December, 1858.1

IIELiE-\S it is cspcdicnt to amend the 1,aw relating to divorce, Proamble.

and to confer n p u r ~ tllr Supreme Conrt of the l'rovincc of

South .Qustrdia jnrisclic tion in mat tcrs matrimonial, and also authority in certain cases to decree the dissolntion of a. marriage-Be it tlierc- f'we Enactcc1 by the Governor-in-Chicf of tlic Provincc of South Austrafia, with thc advicc anti consent of tlic Legislative Council nuci JIouse of Assembly of thc said l'rovincc in this 1)rcsent l'arliamcnt nssemblcd, as follows:

one thousand eight hundred and fifty-nine.	1. This Act shall come into operation on the first day of January, mence cement of
2. ~ 1 s soon as this Act shall come into operation, the Supreme Jnri.idiction owr causes r n n t i i ~ n m ~ d to

plsononnce a clecrec for a j udici.tl scpara tion.

Court of South Australia shall Fossess and exercise jurisdictiori in all h, ,,,,.,;,,dby the

causrs, suits, ,?nd matters matrimonial, cxcept in rcspcct of marriage	s u ~ n e m c	Courts
licences, togcthcr with thc jurisdiction confcrrcd by this Act; and the said jurisdiction, and all powers and authorities by this Act conferred, shall and may be exercisrci iu like rnnnncAr as thc other pow~r" jurisdictions, and anthuritics given to or vested in the said Supreme Court.

3. No decree s l d l be made by the said Court for a divorce NO decree for divorro d vnensa et thoro, but in all cases in which a decrcc for a divorce ~~~~~~~~~~~~ f.:

ti mensn et thoro might have bccn lxonounced according to the law judicial soparation.

heretofore in force'in the l<ingaom of Errgland, th;: Court may

I

Sentence of judicial

separation may be 4. A sentence of judicial separation (which shall have the effect of

obtained by husband	a divorce d lnensa et thoro under the heretofore existing law in the
or wife for adultery,
&c.	Kingdom of England, arid such other legal t4fect 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.
Application for resti-

tution of conjugal 5. Application for restitution of corljugal rights, or for judicial

rightcl, or judicial	separation, on any one of the grounds aforesaid, inay bc made by
separation, may be
made by huaband or	either husband or vife by petition to the said Court, and the Court is
wife by pctition to	hereby authorized and required to hear and determirx such petitions
Court, &c.	according to the rules and regulations which shall be inacle under the authority of this Act; and the said Court, 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 of conjugal rights or judicial scpara tion accordingly, and where the application is by the wife, imp make any order for alimony which shall be deemed just,
Wife deserted by her
huebaud may apply to	6. A wife deserted by her husband may at any time after such Judge thereof, for an order to protect any money or property she may acquire by her lawfill industry, and property which she may become possessed of after such desertion, against her husband, or his creditors, or any person claiming under him, and sur.1~ Special Magis- trate, or Court, or Judge, if satisfied of the fkct of such desertion, and that the same was without reasonable cause, and that tlic wit& is main- taining herself by her own industry or property, may make and give to the wife an order protecting her earnings and property acquired since the commencemelit of such descrtion, from her husband and all creditors and persons claiming under him, and such earnings and property shall belong to the wife, as if she vere a-femme sole: Provided always, that e w y such order, if made by a Special Magistrate shall, within ten days of the making thereof, bc entered with the Clerk of the Local Court of Full Jurisdiction, nearest to the
a S ecial Magistrate,	desertion, apply to a Special Magistrate, or to the said Court, or to a
or 8ourt or Judge.
place where the wife is resident; and thi t it sliall be lawful for the husband, and any creditor or other persons claiming under him, to apply to the said Court, or Judge, or Magistrate, by whon1 such order
was made for the discharge thereof: Provided also, that if the husband, or any creditor of, or person claiming under the husband, shall seize or continue to hold any property of 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 of 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 rcgard to property and contracts, and suing'and being sued, as she would bc under this Act, if she obtained a decree of judicial scpamtion.

7. I n all suits and proceedings other tllan proceedings to dissolve ( - & ; ; : ; ; L $ ?

any marriage, the said Supreme Court shall proceed and act and give tical c,,t,.

relief on principles and rules which, in the opinion of the said Court,

shall be as nearly as inay be conformable to tlie principles and rules

on which the Ecclesiastical Courts of England heretoforc acted and

gave relief, but subject to the provisions herein contained, and to

the rules and orders under this Act.

8. Any husband or wife upon the application of whose wife or Decree ofseparation

husband, as the case may be, a decree of judicial separation has been ~ ~ ~ ~ ~ d $ ~ ~ f, ", ~

pronounced, may, at any time thercaftcr, present a petition to the said or wife may be re-

Court, praying for a reversal of such decree, on the ground that it vcrscd.

was obtained -in his or her absence; and that there was rcasonable ground for the allegecldesertion, wherc dcsertion was the ground of such decree: Anci. tlie said Court inay, on being satisfied of the truth of such allegations of such petition, reverse the decrcc accordingly; but the reversal thereof shall not prejudice nor 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 sen- tence of separation and of the reversal tthercof.

9. I n all cases in which the said Court shall make any decree Court may direct

or order for alimony it may d'rcct the same to be paid either to wife or to her payment of alimon J

to the wife herself or to an)- trustee on her behalf to be approved trustee.

by the said Court, a i d may direct any securities to be given and

impose any terms or restrictions which to the said Court may seem

expedient, and may from time to time appoint a new trustee, if for

any reason it shall appear to the said Court expedient so to do.

10. In e ~ ~ e r y case of a judicial separation the wife shall, from the m case of judicial

date of the sentence, and whilst the separation shall continue, be con- ~ p ~ ~ ~ ~ ~ r ~ ~ a w x e to

sidered as aj'emme sole with respect to property of every description f~rn~fiesolewithrespect

which she may acquire or wllich may come to or devolve upon her: ,,quire, $c.	to property he may
And such property may be disposed of by her in all respects as a
femme sole, and on her decease the samc shall, in casc she shall die	intestate, go as the same would h a ~ e gone if her husband had been
then dead: Provided that, if any such wife should again cohabit with hcr husband, all such property as she may be entitled to when such cohabitation shall take place, shall be held to her separate use; subject, however, to any agreement, in writing, made between her husband and herself' whilst separate,

l l. In every case of a judicial separation the wife shall, whilst so ~ l s o for plmosea o t

separated, be considered as a fernme sok for the purposes of contract, cOntractapdsuing.

and wrongs and injuries, and suing and being sued in any civil pro-

ceeding; and her husband shall not be liable in respect of any

engagement or contract she may have entered into, or for any wrong-

ful act or omission by her, or for any costs she may incur as plaintiff

or defendant: Provided that where, upon any such judicial separa-

tion, alimony has been decreed or ordered to be paid to the wife,

and

n l d the sane shall not be duly paid by the husband, lie d d !

bc liablc for rlcccssarics supplied for her use: I'rovided also, tJxt nothing s l d l prewxt the wife from joining, at any time during such scpitration, in thc cscrcisc uf any joint power givcn to herself and her husband.

On adultcry of wire	12. I t slrall be la~vful	for m y husband to pescnt a lxtition to the
or incest, &C., of

hlLsband, pctltion f i I r said Court praying that his marriage may ht3 ciissolvccl, on tlic grouncl

difi301utionoflrlartiapc thathis wife has, since the celebration thereof, hecri rrui1t~-	of aclultcrv:
may be prcscuted.

And i t shall be lawful for any rvifc to prcscnt a p;titi<il to thc said Conrt praying that her marriage inay bc dissolvcd, on the ground that, sincc the celebration thereof, her husband has bcen gnilty of incestuous adultery, or of bigamy with adultcry, or of rape, or of sodomy, or 'tmtiality, or of adultpry coupled with suc.11 cruelty, as ~viihout adultcry wnnld have entitled her, under the lc~lcsiastical

law as Ilcrtofurc ndministcrcd in Rngliind, to a divorw d m ~ ? ~ s n e t

thoro, or of ndultcry coup1m-l with dcsrrtion, withor ~t rcasonal~le

excuse, for on? year or upmuds; i d e \ cry s t~ch petition sliull statc, as distinctly as the nature of the case pcmiits, the facts on which tlic

As to incestuous

claim to have S L W I ~ n~w-riage dissolved is founded: Prol-idccl that,

adultcry.

for the pnrposcs of this Act, incestuous adultery shall be taken to

mean adultery coinnlittcd bby a husband with a woman with ~vholn,

if his wife wcrc clcad, he could riot, according to the lmv lwctofbre in

force within the said province, Iawfullp contract innniage, by reason

of her being within tlic prohibited clcgrees of coiisanguinit? or affinity;

and bigamy shall be talicn to incan marringc of any ,-~crson being

rriarried to any other pcrson cluriug the life of the former husband o ~.

wifv, whether thc secoilcl niarriage shall have taken place within the

cloniinions of' l I c r bIitj&y or elsewhere.

Aitdterer to bc a co-

13. TTpon any such pctition prescatcd by a husband, thc pctitioncr shall make the nllegcd adulterer a co-respndent to thc said petition, unless, on special grounds to bc dlowctl by thr said C'ourt, he shall bc excused from so doing; and on cvery pctition presented by a wife for dissolution of marriage, thc said Court, if it see fit, may direct that thc person with w1101n the h~rsbnnd is alleged to hnvc committecl

rcspondcnt.

C a ~ r ~ e may be t.ried aclultery be m i l e a rcspondcnt; and the parties, or vit'hcr of them

hy a jury.

may insist on h a ~ i n g the contested ~nnttcrs of fact triccl by a jury as

hereinafter mentioned.

Court to hc :~tisficd	14. TTpon any such petition for thc dissolution of a inar~ingr,
of abscncc of col-

lusion. i t shall be the duty of the said Court to satisfji itself, so far as i t reasoilaldj- can, not only as to the facts alleged, but also wlwther or no thc yetitioner has been in any manner accessory to or conniving at tllc adultery. or has condolled the S ~ I C, and shall also cnqnire into an? rountcr cllarge whkh m a j be nlarle against the pctitioncr.

15. T n case the said C'ourt on the e~-idence iu relation to any such

petition shall not Be satisficcl that tlic alleged adultcry has been commit t d, or shall fincl that thc pctitioncr has, during tlic marriage,

Itcell accessory to or conniving at the adultery of the other party to the rnarriaee, or that thc petition is presented or proscxuted in collu- sion with elther of the respondents, then and in any of the said cases the said Court shall dismiss the said petition.

16. I n casc tht. said Court sllall bt: sntisfied on the evidence that power to Court to pronounce d c r w e for

the casc of the petirioner has been proved, and shall not find that the dissolving

pctitioncr hns been in any nianncr ncccssory to or conniviug at the

adultery of t h: othcl- party to the rnnrrinar, or that the petition ic	,'
l~rcsmtetl or prosecuted in coll~wion with citller of the respondents, thcn the said Court s l d l pronouncc s rlccrcc cleclaring such marriage to be dissolvccl: Pro~iclecl always that the said Court shull not be
bard to pronounce such decree if' it shall find that the petitioner has
during the marriage beell guilty of adultery, or if the petitioner shall llave corldonscl the adultcry complained of, or shall, in the opinion of the said Court have been guilty of unreasonible delay ill presenting or proswutii~g such 1xAitioi1, or of cruelty towards the other party to the marriage, or of having deserted or wilf'illly separated himself or herself from thc othcr party before the adultery complained of, ancl without rel-tsonrtble excuse, or of such wilful neglect or mis- coilduct as has conduccd to the adultcry.

17. The said C'ourt may, if it shall think fit, on any such decree, Alilnov.

order tlli~t the husband sllall, to the satisfaction of the said C'ourt,secure

to the wife snch gyoss sum of ~iioncy, or such annual sum of money

for any t rno not rucccdin~ har own life as, having r r g ~ r d to hcr fortune (if any), to the ability of the husbilild, and to thc conduct of the partics, it shall ~lecni rcasonablc, and for that purpose may settle

and appro~c, or mtj- refer it to the Master of' the said Court to

scttle and appro~e of a proper deed or instrument to be esccutccl by a11 necessary parties; ancl thc said Court inay in such case, if i t shall see fit, suspcncl the pronouncing of its dccree until such deed

shdl have been duly executed; ancl upon any @ition for disso-

lution of rnaniagp the said Court shall hare the same power to make interim orders for paymcilt of money by way of alimony or othcr-

mise to the wife, as it ~voulcl have in a suit instituted for judicial separation.

18. Any husband may either in n petitioil for dissolution of Husband c ldm

d:traages from

marriage, or for judicial separation, or in a petition litnitcd to such s d u l t ~ ~ l c ~ a,

object only, clniln clamages from any person on ttlc ground of his having committed adultery with the wife of such petitioner, and such petition shall be served on the zill~g(!il adulterer and the wife unless the said Court shall dispense with sncli service, or direct some other service to be substituted, and the claim made by every such petition shall be heard and tried on the same principles, in the same manner, and subject to thc same or the lilic rules and regulations

as actions for criminal conversation are now tried and decided in the

said Court; nrd all thc enactrncnts herein contained with refcrcrrce to the hearing and decision of petitions to the said Court shall, so far as may be necessary, be deemed applicable to the hearing and

C 3 decision

decision of petitions preselited under this enactnlent; ant1 the damages to be recovered on any such petition shall in all cases be ascertained by the verdict of a jury, although the respondents or either of them may not appear; and after the verdict has bccn given, the said Court shall have power to direct in what manner such damages shall be paid or applied, and to direct that the whole or any part thereof shall be settled for the benefit of the children (if any) of the marriage, or as a provision for the maintenance of the

wife.

Power to Court to

order adulterer to	19. Whenever in any petition presented by a husband, the alleged adulterer shall have been made a co-respondent and the adultery shall have been established, it shall be lawful for t,he said Court th order the adulterer to pay the whole or any part of the costs of the proceedings.
pay costa.
Power to Court to

make ordera as to 20. I n any suit or other proceeding for obtaining a judicial

custody of children.

separation, or a decree of nullity of marriage. and on any petition for

dissolving a marriage, the said {Jourt may, from time to time, l~cfore

making its final decree, make such int&m orders, and rimy n ~ a X c

such provision in its final decree, as i t may clecnl just and proper,

with respect to the custody, niaintcwttnce, and eduration of the

children, the marriage of whose parents is.the subject of'suc~h mit

or other proceeding; and may, if i t shall think fit, direct proper

proceedings to be taken for placing such children under the protec-

tion of the said Court in its equitable jurisdiction.

Questions of fact may 21.

I n questions of fact, arising in proceedings undcr this A l c t, it shall be lawful for, but except as hereinbefore provided, not obliga- tory upon the said Court, to direct the truth thereof to be determined before itself, or before any one or mow of the Judgcs of the said Court, by the verdict of a Special or Cornnmn Jury; and all questions under this Act, by the said Court directed to be tried by a Jury, shall be tried at the ordinary sittings of the said Court for the trial

be tried before the

Court.

of issues in civil causes.

Such questions to be 22. Where any such questions shall be so ordered to be tried, such

rcrluced into writing,

and a Jury to be

question shall be reduced into writing, in such form as the said Court

aworn to try it.

shall direct; and, at the trial, the Jury shall bc sworn to try the said

question, and a true verdict to give thercon according to the e~idence.

Bill of exceptions,

special vcrdict, and

23. Upon the trial of any such qucstion, or of any issue undcr this Act, a bill of exceptions may be tendered, and a general or special verdict or verdicts, subject to a special case, may be returned in like manner as in any cause tried in the said Court; and elery such bill of' exceptions, special verdict, and special case respectively.

special case.

shall be stated, settled, and sealed, in like manner as in any cause

tried in the said Court; and the matter of law in every such bill of exceptions, special vtlrdict, and special case, shall be hearti and

determined by the full Court, subject to such right of appeal as is

hereinafter given in other cases.

24. It

21. I t shall be lswfiil for the said Court to dirrct one ur inore issue ~; ; ~ ~; I ' ~ ~; ~ far.t,

or issues to be tried in any cause or matter rnatrilnonial which may

be brought before it undei the prorisions hereof; in like manner as [S

now done by the said Court in the exercise of its equitable j~iris-

diction.

25. Every person seeking a decree of nullity of marriage, or a A m a v i t in support uf a petition.

decree of jidicial separation, or a, dissolution of marriage, or dccree in a suit of jactitation of nlarriage, shall, together with the petition, or other application for the same, file a11 affidavit verifying the same, so far as he or she is ahle to do, and stating that there is not any collusion or connivance betwccn the dcpoilent and the other party to thc marriage.

26. Every such petition shall be served on the party to he affected service of petition.

thcrcby, cither within the limits of' the said ~'ro&ce of South Australia, or withont, in such manner as the said Court shall, by ally gerieral or speiial order from time to time direct: Provided always, that the said Clonrt may dispcnse with such servicc altogether, in case it shall seem necessary or expedient so to (10.

25. The .;aid Court may, if it shall think fit, order the attendance Examination of petitionsr.

of the petitioner and may examine kin1 or hcr, or permit him or her to be exami~led or cross examined on oath, on the hearing of any petition, but no buch petitioner shall be bound to answer any ques- tion tcndiiig to show that he or she has bcen guilty of adultcry.

28. The said C'onrt may, froin time to time, adjourn the hearing of Adjulmment.

any such petition, and may require fi~rthcr	e~idcncc	tlrereon if it shall
see fit so to do.

29. In any case in which the said C'ourt shall pronounce a sentence Court may ordev sct-

of divorce or judicial scparation for adultery of the wife, if it shall be r,, benefit ofinnocent

tlemcnt of property

made to appear to the said Court that the wife is entitled to anyproprrty,

party, and children of

marnagu.

either in possession or reversion, i t shall be lawful for the said Court,

if it shall think proper, to ordcr such scttlernent as it shall think

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.

30. Subject to such rules and regulations as may be established, Mode of taking evi- dence.

as herein provided, the witnesses in all proceedings before the

said Court, where their attendance can be had, shall be sworn and examincd orally in open Court: Provided that parties, except as herein- before provided, shall be at liberty to verify their respective cases, in whole or in part, by affidavit, but so that the deponerrt in every such affidavit shall, on the application of the opposite party or by direction of the said Court, be subject to be cross-examined, by or on bchdf of thc opposite party, orally in open Court; and, after such cross examina- tion, may be re-examined orally, in open Court as aforesaid, by or on behalf of the party by whom such affidavit was filed.

31, Protided

map iswe

missions or give orders	31, Provided that, wllere a witness is out of the jurisdiction of stances, the said Court shall not think fit to enforce the attendance of the witness in open Court, it shall be lawful for the said Court to order
for the examination
of witncsscs abroad or	the said Court, or where by reason of his illness, or from other circurn-
unublc to attcnd,
a commission to issue for the examination of such witness on oath
upon interrogatories or otherwise, or, if the witness be within the jurisdiction of the said Court, to order the examination of such witness

. on oath, upon interrogatories or otherwise, lwf'ort? any Officer of the said Court, or other person to be narncd in such order for the pur- pose, and every such commission or orcler shall be cffcctual to all intents and purposes as though i t were issued or made in an action pending in such Court.

Costs. 32. The saicl Court, on the hearing of any suit, proceeding, 9r petition uncler this Act, and the Court of Appeals of the Province of South Australia, on the hearing of any appeal nnclcr this Act, may make such order as to costs as to s ~ ~ c h Courts respectively may seem just: Provided always, that there shall be no appeal on the subjcct of costs only.

I

Enforcement of orders

and decrees. 33. All clecrccs and orders to be rnade by the said Court in any suit, proceeding, or petition, to be instituted under authority of this Act, shall be enforced and put in execution in the same, or the like ~nannw, as the judgments, orders, a i d decrees of tlic saicl Court, in the exercise of its equitable jurisdiction, may be now enforced and put in execution.

rower to make rules! 34. The said Court shall make such rules and regulations concerning

, . BC., for placcdure a d

to alter them from thc practice arid nrocedure undcr this ,4ct. as it may, from time to L d,

time to tiue.	time, consider expedient; and s ld1 have f d l l,owt.r,	from time to
time, to revoke orhltcr the same.

35. The said Court shall hare full power to fix and regulate, from time to time, the fees payable upon all proceedings before it, all which fees shall be reccivecl, paid, and applied as herein directed: Provided

always, that the said Court may makc such rules and regulations as

i t may deem necessary and expedient for enabling persons to sue in

fo~rnd pauperis.

Appeal.

---.	36. Either party dissatisfied with the decision of the said Court, on any petition for the dissolution of a, marriage, may, within three calendar months after the pronouncing thereof, appeal therefroin to
the Court of Appeals, which Court may a@ni, alter, or reverse such
d e c i s i o ~ ~ l o l e or ih part, or dismiss the appeal as may Ire just.
Liberty to.parties to
marry again.	37. ,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 tu be dissolved, but not sooner, it shall be
No officiating minis-	lawful for the respective parties thereto to marry again as if the

ter compelled to prior

ln.ior nlarriagc h ( l becn clissolvctl by dcntll: I'roviticd nl*ays, that "l(""ni" ' " ~ t ~ i l l

111~11 I lagus.

officiating minister shall be complied to solemnixe thc marriage

of' ally person whose h n n e r marriage may have been dissolvccl on the

of' his or her adultery.

:H. Aftcr this Act s l d l have come into operation, no action shall " o ~ t i o n i n Si)~lth h~ht t ' i l l la fol ~ l l l l l l l l ~ l

be nlaintainnble in South Australia for criminal conrcrsation. conwrsnt ic~~~.

: 3 9. All 1.111~~ and regulations conceniing prncticc or procedure, or Rules, &C., to b ~ l: ~ i d

firiilg or rcgnlating fccs which may bc nlacle by the said C'ourt under bvfurc l'srlimnent.

this Act, shall be laid bcfore both Houses of Parliament within one

calendar month after the making thereof, if I'arliament lot? then

sitting, or if Piirlit~mcnt be not then sittiilg, within one calendar

moilth after thc cornlnencernent of the then next Session of Parlia-

men t.

40. In the construction of this Act, the word '' Court" shall, "l'nst'"LtiOn

nnlcss otlrrrwisc ey)rcssril, mean the S~~pren l e	Court of the said
Prorince.

41. 'I'his Act may Lc oitrd as the "3I~ttrimonial Causes Act." Short t~tle.

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A(li, l .~~dc PI inted by