Matrimonial Causes (Amendment) Act 1958 (NSW)

MATRIMONIAL CAUSES (AMENDMENT) ACT.

Act No. 22, 1958.

An Act to amend the law relating to alimony and maintenance; for this purpose to amend the Matrimonial Causes Act 1899, the Deserted Wives and Children Act, 1901, and certain other Acts in certain respects; and for purposes connected therewith. [Assented

to, 16th April, 1958.]

BE it enacted by the Queen's Most Excellent Majesty, by and with the advice and consent of the Legis-	lative Council and Legislative Assembly of New South
Wales in Parliament assembled, and by the authority of the same, as follows :—
1 . (1) This Act may be cited as the "Matrimonial Causes (Amendment) Act, 1958".
(2) The Matrimonial Causes Act 1899, as amended by subsequent Acts and by this Act, may be cited as the Matrimonial Causes Act, 1899-1958.
(3) The Deserted Wives and Children Act, 1901, as amended by subsequent Acts and by this Act, may be cited as the Deserted Wives and Children Act, 1901-1958. (4)'

(4) This Act shall commence upon a clay to be appoin ted by the Governor and notified by proclamat ion published in the Gazette.

2 . The Matr imonia l Causes Act 1899, as amended by

subsequent Acts , is amended—

(a) by inserting in section three before the definition of " T h e C o u r t " the following new definitions:—

" A l i m o n y " includes maintenance.

" M a r r i a g e " includes a union which is

ostensibly a m a r r i a g e and which is the subject of judicial proceedings to determine its validity.

(b) by omit t ing from section five the words " o t h e r

than proceedings to dissolve any m a r r i a g e " and by inser t ing in lieu thereof the words " , other than proceedings to dissolve any m a r r i a g e or

proceedings under P a r t V I I I of this A c t , " ;

(c)	by omitting section eight, subsection two of section nine and section t en ;
(d)	by omitting from subsection two of section twenty- three the words " t h e payment of pe rmanen t al imony the maintenance of children a n d " ;
(e)	by omit t ing P a r t V I I I and by inser t ing in lieu
thereof the following P a r t : —

P A E T V I I I .

ALIMONY.

39. (1) In any proceedings under this Act (other than proceedings for jac t i ta t ion of

m a r r i a g e ) , the Cour t may make such order a s it

deems jus t and p roper , hav ing r e g a r d to the means and conduct of the pa r t i e s to the m a r r i a g e and all other re levant circumstances, for the paymen t of al imony to one p a r t y to the m a r r i a g e by the other pa r ty , or for the mainten­ ance of the children the mar r i age of whose

p a r e n t s

paren t s is the subject of the proceedings, including an order in favour of a p a r t y aga ins t whom a decree in the proceedings is made .

(2) An order for al imony—

(a)	pending the hearing of a petition for
res t i tu t ion of conjugal r i g h t s ; and
(b)	made before or after the commence­
ment of the Matr imonia l Causes

(Amendment ) Act, 1958,

shall, if a decree is made in favour of the p a r t y in whose favour the order was made , but subject to any special t e rms of the order , con­ t inue in force af ter the t ime in tha t behalf limited by the Cour t for compliance with the

decree unt i l va r ied or revoked:

P rov ided tha t in the case of any such order made before the commencement of the Matr i ­ monial Causes (Amendment ) Act, 1958, this subsection applies only where the t ime so limited expires af ter tha t commencement.

(3) An order for al imony—

(a)	pending the hearing of a petition for
judicial s epa ra t i on ; and
(b)	made before or after the commence­
ment of the Matr imonia l Causes
(Amendment ) Act, 1958,

shall, if a decree is made in favour of the person in whose favour the order was made, but subject to a n y special t e rms of the order , con­ tinue in force af ter the decree unt i l va r i ed or revoked:

P rov ided tha t in the case of any such order made before the commencement of the Mat r i ­ monial Causes (Amendment ) Act , 1958, th is subsection appl ies only where the decree in the suit is made after tha t commencement.

(4)

(4) An order for al imony—

(a)	pending; the hearing of a petition for
dissolution of m a r r i a g e ; and
(b)	made before or after the commence­
ment of the Matr imonia l Causes

(Amendment) Act, 1958,

shall, where tha t order is in force immediately before the decree nisi in the suit is made absolute, but subject to any special t e rms of the order , continue in force af ter the decree

absolute unt i l va r ied or revoked:

P rov ided tha t in the case of any such order made before the commencement of the Mat r i ­ monial Causes (Amendment) Act, 1 9 5 8 , th is subsection applies only where the decree nisi is made absolute af ter tha t commencement.

(5) An order for the maintenance of a

child—

(a)	pending the hearing of a petition for
res t i tu t ion of conjugal r ights , judicial
separat ion, dissolution of m a r r i a g e or
null i ty of m a r r i a g e ; and

(b)	made before or after the commence­
ment of the Matr imonia l Causes
(Amendment ) Act, 1958,

shall, subject to any special tei'ms of the order , but in so far only as it re lates to the maintenance of the child, continue in force—

(i)   in a case of restitution of conjugal r ights—after the t ime in t h a t behalf l imited by the Cour t for compliance with the decree in the suit unt i l var ied or revoked;

(ii)

(ii)   in any other ease—after the final decree or decree absolute in the suit unti l var ied or revoked:

P rov ided tha t in the case of any such order made before the commencement of the Matr i ­ monial Causes (Amendment) Act, 1958, this subsection appl ies only where—

(i)   in a case of restitution of conjugal

r ights—the t ime so l imited expires

after tha t commencement;

(ii)   in any other case—the final decree or decree absolute is made after tha t commencement.

Nothing in this subsection affects the opera­ tion of subsection two, th ree or four of this section.

40. (1) T h e Court , in exercising its powers

under this P a r t of this Act, may—

(a)	order that a gross sum or a weekly, for tnight ly , monthly or other periodic sum be pa id or secured and order tha t any securi ty is to be in addit ion to or wholly or pa r t l y in subst i tut ion for a
periodic p a y m e n t ;
(b)	order that any necessary deed or ins t rument be executed and tha t such
to enable an order to be effectively
documents of title be produced or such other th ings be done as are necessary
car r ied out or to provide securi ty for
the due per formance of an o r d e r ;
(c)	settle and approve any deed or instru­ ment so ordered to be executed;
(d)	order that payments be made direct to a p a r t y to the mar r i age , to a t rus tee to be appoin ted or to any public au thor i ty for the benefit of a p a r t y to
the m a r r i a g e ;

(e)

(e)	order that payments of maintenance in respect of a child be made to such person as the Cour t may specify;
(f)	make a permanent order, an order pending the disposal of the proceedings or an order for a fixed term, for a life or du r ing joint l ives;

(g) impose te rms and condit ions;

(h) discharge an order if the party in whose favour the order is made mar r i e s again or if there is any other jus t cause for so doing;

(i)   modify an order under this Part or suspend its opera t ion wholly or in p a r t and either unti l fu r the r order or unti l a fixed time or the happen ing of some

future event ;
(j)	revive an order wholly or in p a r t ;
(k)	increase or decrease the amount pay­ able under an order other than an order pu r suan t to which a gross or periodic sum is secured;

(1) sanction an agreement for the accept­

ance of a gross sum or periodic sums in

lieu of r ights under this P a r t ;

(m) deal with any two or more m a t t e r s mentioned in this subsection in the same order ;

(n) include its order under this Part in a decree nisi, decree absolute, or final decree, or make any order under this P a r t on, or at any time before or after, the pronouncement of any such decree.

(2)
(2) Notwi ths tanding anyth ing contained

in this P a r t —

(a) where no alimony was payable—

(i)   in a case of restitution of conjugal r ights , immediately before the expira t ion of the t ime limited by the Cour t for compliance with the decree in the proceedings ; or

(ii)   in any other case, immediately before the pronouncement of the decree absolute or final decree in the p roceed ings ; or

(b) where alimony was so payable but the o rder therefor was not continued in force by v i r tue of the operat ion of sub­ section two, th ree or four of section thir ty-nine of this Act,

the Court shall not make an order for per­ manent al imony in respect of the proceedings unless appl icat ion therefor was or is made before, on, or, having r e g a r d to all the circum­ stances of the case, within a reasonable t ime after, the pronouncement of the decree absolute or final decree.

(3) The Court may exercise the powers conferred by this P a r t in relat ion to an order for

al imony or maintenance made before the

commencement of the Mat r imonia l Causes (Amendment ) Act, 1958, as well as in relation to an order for al imony or maintenance made after tha t commencement.

41. (1) W h e r e any person, directed by an order under this P a r t to execute any deed or other ins t rument or make a su r r ende r or t r ans ­ fer, refuses or neglects to do so, the Cour t may appoin t the Chief Clerk in Divorce, or some other person, to execute the deed or ins t rument

or

or to make the su r render or t rans fe r in his I
name, and to do all acts necessary to give
validity and operat ion there to .

(2) The execution of the deed or ins t ru­ ment and the su r render or t ransfer so made by the person so appointed shall in all respects have the same force and val idi ty as if it had been executed or made by the person directed by the order to execute or make it.

(3) The Cour t shall make such order as
m a y be jus t touching the payment of the costs

of, or a t t end ing the execution of, any such deed,

t ransfer , su r render or ins t rument .

42. This P a r t applies to proceedings under this Act (o ther t han proceedings for jac t i ta t ion of

m a r r i a g e ) pending a t the commencement of the

Matr imonia l Causes (Amendment) Act, 1958, as well as to proceedings under this Act (other than proceedings for jac t i ta t ion of ma r r i age )

ins t i tu ted after that commencement.

f)	by omitting from the heading to Part XIII the
words " A N D MAINTENANCE";
g)	by omitting from subsection one of section sixty
the word " m a i n t e n a n c e " ;

h) by omitting from section sixty-two the word " m a i n t e n a n c e " ;

i) (i) by inser t ing in subsection one of section 90A

after the word " m o n t h l y " the word " ,	fort­
n i g h t l y " ;

(ii)   by omitting from the same subsection the words " a n d any sum due under the o rder is unpaid, any justice, upon complaint on

oath

oath being made by the wife or by any reputable person on behalf of the wife or child tha t the wife or child is unable th rough lack of means to have the order enforced by a t tachment , m a y " and by inser t ing in lieu thereof the words " a n y justice may, upon complaint on oath being made by the wife or by any reputable person on behalf of the wife or child tha t any sum due under the

order is u n p a i d " ;

(iii)   by omitting from subsection two of the same section the words " sec t ion ninety-seven of the Child Welfare Act, 1 9 2 3 " and by insert­ ing in lieu thereof the words " sec t ion twelve of the Child Welfare Act, 1 9 3 9 " ;

(iv)   by omitting from subsection three of the same section the words " a n d tha t the wife or child is unable th rough lack of means to

have the order enforced by a t t a c h m e n t " ;

(v)   by omitting subsection eight of the same section and by inser t ing in lieu thereof the following subsection:—

(8) I n this section " h u s b a n d " includes

a male person aga ins t whom the cour t has made an order for payment in respect of a l imony and " w i f e " includes a female person in whose favour the cour t has made such an order , and " j u s t i c e " means just ice of the peace.

(j) by inser t ing in P a r t X V I I I next after section 90A the following new sect ion:—

90B. (1) This section applies to an order made by the Court before or af ter the commence­ ment of the Matr imonia l Causes (Amendment ) Act, 1958, for the payment by any pe r son of al imony or maintenance to any other person.

(2) Notwi ths tanding any th ing contained

in this or any other Act an order to which this section applies made aga ins t a female shall be enforced only in the manner provided in this

section.	(3)
(3) W h e r e it is made to appea r	upon ;

oath to the r eg i s t r a r or a deputy- reg i s t ra r in divorce tha t default has, before or after the commencement of the Matr imonia l Causes (Amendment) Act, 1958, been made by a person aga ins t whom an order to which this section applies has been made in making the payments directed by the order and tha t an amount of more than ten pounds is due thereunder , the r eg i s t r a r or depu ty- reg i s t ra r may g r a n t a certificate in the prescr ibed form s ta t ing the amount due under the order at the da te of the certificate without requi r ing notice of the applicat ion to be given to that person.

(4) The person entitled to receive the money ordered to be pa id may file or cause to be filed the certificate in the Supreme Court or in any Distr ict Court having jurisdict ion within the distr ict wherein the person agains t whom the o rde r was made resides or wherein any real p r o p e r t y of the last-mentioned person is s i tuated, and the P r o t h o n o t a r y or the r eg i s t r a r of the Distr ict Court in which the certificate is so filed, as the case may be, shall enter judgment for the person so enti t led for the amount s ta ted to be clue in the certificate together with the fees paid therefor and for filing the certificate and

en te r ing the	judgment .
The judgment may, subject to subsection five which a final j udgment in an action may be	of this section, be enforced in any manner in
enforced.
(5) (a) On the applicat ion of the person agains t whom the o rder was made or his executor or adminis t ra tor , the Court , if it deems it jus t and p rope r to do so, may, whether or not proceedings to enforce the judgment have been commenced—

(i)   order that the judgment shall not be enforced; or

(ii)

(ii)   order that the judgment be paid at such t ime or t imes and by such instalments , if any, as the Cour t thinks fit,

and, where proceedings to enforce the judgment
have been commenced, may—

(iii)   set aside or stay execution if execution

has i ssued;

(iv)   set aside an order made in those pro­ ceedings a t taching debts due, owing or accruing to tha t person and order tha t any moneys t ha t have a l ready been received by the judgment credi tor under the order firstmentioned in th is

s u b p a r a g r a p h or t ha t have been pa id

into court unde r the order firstmen­

t ioned in this s u b p a r a g r a p h but have not been pa id to the judgment credi tor be pa id to the person firstmentioned in this s u b p a r a g r a p h or his executor or admin i s t r a to r ;

(v)   make such other or further order in relat ion to those proceedings as may

be jus t .

(b) The powers conferred on a
Court by this subsection shall not be construed

as l imit ing or affecting any power possessed by

the Cour t a p a r t from this subsection.	(c)	In	this	subsection	" C o u r t "
means—

(i)   where the certificate is filed in the Supreme Cour t—the Supreme Court in i ts common law jur isdict ion or a J u d g e of tha t Cour t exercising tha t jur isdic­ tion ;

(ii)   where the certificate is filed in a Dis­

t r ic t Cour t—a J u d g e of tha t Court .

( 6 )

(6) Rules of court may prescr ibe the practice and procedure , to be observed in the Supreme Court and in Dis t r ic t Courts , for carrying - out or giving effect to this section and, without l imit ing the genera l i ty of the power conferred by the foregoing provis ions of this subsection, may prescr ibe the pract ice and pro­ cedure to be so observed in connection with the filing of certificates and enter ing u p of judg­ ments thereon in pursuance of this section, and the fees to be paid.

(k) (i) by omit t ing from section one all ma t t e r :

re la t ing to P a r t V I I I and by inser t ing in

lieu thereof the following m a t t e r : —

P A R T VI I I .—ALIMONY—SS . 39-42.

(ii) by omit t ing from the ma t t e r re la t ing to

P a r t X I I I in the same section the words

" A N D MAINTENANCE".

3 . The Deser ted Wives and Children Act, 1901, as amended by subsequent Acts, is amended by inser t ing in P a r t I I next af ter section 13B the following new section:—

13c. An order made under section seven of this Act shall not be taken to be discharged or cancelled by reason only of the dissolution after the commencement of the Matr imonia l Causes (Amendment ) Act, 1958, of the mar r i age	between the husband and the wife, and for the
purposes of enforcing, vary ing , suspending or
d ischarging the order a reference in this Act to " h u s b a n d " includes a reference to the person who before the m a r r i a g e was dissolved was the husband and a reference in th is Act to " w i f e " includes a reference to the person who before the m a r r i a g e was dissolved was the wife.

S U P P L Y