Matrimonial Causes Procedure Amendment Act (1893 No 34a) (NSW)

No. XXXVI

An Act to amend the Law and .Practice in. the
Matrimonial and 'Divorce Jurisdict ion of

the Supreme Court, and to validate certain

proceedings therein, [13/7/ June, 1898.]

WHEREAS it is expedient in amend the Jaw and practice
in. the matrimonial and divorce jurisdiction of the Supreme

Courf.: Be it therefore enacted by the Queen's Most Excellent

Majesty, by and with the advice and consent of tin; Legislative! Council
and Legislative Assembly of New South Wales in Parliament

assembled, and by the authority of the same, as follows :• -

1. Section six of the "Matrimonial Causes Act Amendment

Act of 1881-!" is hereby repealed.

2. i n any petition by a husband for dissolution of marriage or

judicial separation on the "'round of!' the adultery of his wife no

damages shall be claimed in respect of an act of adultery committed more than, three years before the tiling of the petition : Provided that nothing herein contained shall. affect the right of any petitioner to a. decree for dissolution of marriage or judicial separation on the ground

of adultery committed more than throe years before the tiling of t h e
petition.
3. Where a decree /.'/*/ has been pronounced for the dissolu­

tion of a marriage, and the petitioner .fails to apply at the expiration

of the time prescribed in the decree or in any special order to make
the decree absolute, the respondent may, on giving notice, or such,
substituted notice as the Court may allow, to the petitioner, apply to
the Court to make the decree absolute. And the Court may order
accordingly, and may make the order subject to such conditions as to
1 ho payment of permanent alimony, the maintenance of children, and
the payment of costs as i t may think proper.
4. Where it is proved to the satisfaction of the Court that any deed, conveyance, instrument, or agreement has been executed or made by or on behalf of, or by direction of, or in the interest of a respondent husband or wife in order to defeat the claim of the petitioner in respect of costs or alimony, or in respect of money payable for the maintenance of children, the deed, conveyance, instrument, or agree­ ment may, on the application of the petitioner, and on such notices being

I given

given as m a y be directed, be set aside on such t e rms as t h e Cour t m a y

t h i n k proper. And, if the Cour t on t he hear ing of t h e appl ica t ion so order a n d declare, any money or proper ty , real or personal , dea l t w i th by such deed, conveyance, i n s t rumen t , or agreement as aforesaid,

m a y be t a k e n in execut ion a t t he suit of t h e pet i t ioner or cha rged w i t h

t h e p a y m e n t of such sums for the ma in t enance of t h e pet i t ioner or of

t h e pet i t ioner and chi ldren as t he Court m a y direct. A n d on such

hea r ing as aforesaid, the Cour t m a y m a k e such order for the pro tec t ion

of a bond fide purchaser as it m a y t h i n k ju s t . A n d the respondent or any one ac t ing in collusion w i t h the respondent m a y he ordered to pay the costs of t he pet i t ioner and of a bond fide pu rchase r of and inc identa l to t he execut ion of t he said deed, conveyance, i n s t rumen t , or agree­ ment , and of se t t ing t he same aside.

5. W h e r e it shall appear to t h e Cour t t h a t a sale of rea l estate

is abou t to be m a d e wi th in ten t to defeat a pe t i t ioner ' s claim in respect of costs, a l imony, or the ma in t enance of chi ldren, or damages on the ground of adu l t e ry , the Cour t m a y b y order res t ra in t he sale or order the proceeds of the sale to be pa id in to Court , to be dealt wi th as the Cour t shall direct . A n y sale m a d e after an order of the Cour t res t ra in ing the sale, as aforesaid, has been served on the person sell ing, or his auct ioneer or agent for sale, shall he nu l l and void ; and the Cour t m a y consider the claim of any person interested, and m a y m a k e such order in the premises as may appear jus t .

6. The Cour t m a y m a k e such order as to t h e costs of any person who shall in tervene or show cause agains t a decree nisi in any suit or proceeding, or of all and every pa r ty or par t ies there to , occasioned by such in te rven t ion or showing cause as aforesaid, as may seem j u s t ; and may in all suits and proceedings order costs to he paid as be tween

a t torney and client .

7. The Court m a y exercise t he powers vested in it by t h e

provisions of section forty of t he " M a t r i m o n i a l Causes A c t , " th i r ty -

s ix th	Victor ia n u m b e r n ine , in favour	of	e i ther pa r ty to the	mar r iage ,
no twi th s t and ing	t h a t	there	are no	chi ldren.

8. I n all undefended eases, where t he Cour t is requested unde r section th ree of the A c t fiftieth Victoria n u m b e r twelve to m a k e the ru le absolute , the Court m a y give t he wife t h e custody of the ch i ldren ; and m a y also do so in defended eases, on proof t h a t the respondent has had not ice of t h e in ten t ion of t h e pet i t ioner on t he hea r ing of t he mot ion to m a k e the ru le absolute to apply for t he cus tody of t h e chi ldren.

9. The part ies to any suit or proceeding, and t h e husbands and wives of t he par t ies , shall be competent to give evidence; in such suit or proceeding : Provided t h a t no w i t n e s s in any sui t or proceeding, whe ther a par ty to the same or not, shall be liable1 to be asked or b o u n d to answer any quest ion t end ing to show tha t he or she has been gui l ty of adul te ry , unless such wi tness shall have a l ready g iven evidence in t he same suit or proceeding in disproof of bis or her alleged adul tery . A n d no proceedings t aken , or order or decree made before t he passing of this Act , shall be held inval id by reason only of t h e admission of t he evidence of any person who is hereby declared to be a competent witness.

10. Al l proceedings in t he Mat r imon ia l and Divorce; Jur i sd ic t ion

of t he Supreme Court shall be tes ted in the n a m e of t h e J u d g e exercising

jur isdic t ion unde r the " Ma t r imon ia l Causes A c t . "

1 1 . The regis trar of t h e Court shall have power to t ax costs

subject to review by the Cour t as at Common Law, to sett le issues a n d deeds directed by the Court to be executed by the; part ies , to e x t e n d the t ime in undefended suits wi th in which proceedings m a y be tiled, to allow proceedings to b e t a k e n or defended in forma pauperis, and to

examine

examine witnesses in a l imony applicat ions and report the resul t of t he said examinat ions to the Court , which may consider the same in de te rmin ing a l imony applicat ions, and to discharge such o ther admini ­ s trat ive funct ions in t he Divorce Jur i sd ic t ion as are discharged by the P ro thono ta ry a t Common Law, subject to such rules as t he Cour t m a y m a k e relat ive there to , and subject to t he r i gh t of appeal to the Court in all cases.

12. P r o m and after the passing of this A c t a decree for resti­ tu t ion of conjugal r igh t s shal l no t be enforced by a t t a chmen t , b u t where the appl icat ion is by the wife the Cour t may , a t t he t ime of m a k i n g such decree, or a t any t ime afterwards, order t h a t in the event of such decree no t be ing complied wi th wi th in any t ime in t h a t behalf l imited by the Court , the respondent shall m a k e to the pet i t ioner such periodical p a y m e n t s as m a y b e j u s t ; and such order may be enforced in t he same m a n n e r as a n order for a l imony in a suit for judicia l separat ion. The Court may, it it shall t h i n k fit, order t h a t t he husband shall , to the satisfaction of the Court , secure to t he wife such periodical paymen t , and for t ha t purpose m a y refer i t to the regis t rar or some conveyancing counsel or a t torney of the Cour t to set t le and approve of a proper deed or i n s t rumen t to be executed by all necessary part ies .

13. W h e r e t he appl icat ion for res t i tu t ion of conjugal r igh ts is

by the husband , if it shall be made to appear to t he Cour t t h a t t he wife is ent i t led to any property , e i ther in possession or reversion, or is in receipt of any profits of t rade or earnings , the Court may, if it shall t h ink Jit, order a se t t l ement to be made to the satisfaction of the Cour t of such proper ty , or any par t thereof, for t h e benefit of t h e pet i t ioner and of t h e chi ldren of t he marr iage , or e i ther or any of them, or may order such pa r t as t h e Cour t m a y t h i n k reasonable of such profits of t rade or earnings to be periodically paid by the respondent to the pet i t ioner for his own benefit, or to t he pet i t ioner or any o ther person for t he benefit of the chi ldren of t h e marr iage , or c i ther or any

of t hem.

1 1 . Tire Court m a y from t ime to t ime vary or modify any order

for t h e periodical p a y m e n t of money, ei ther by a l te r ing the t imes of paymen t or by increas ing or d iminish ing the amoun t , or m a y temporar i ly suspend the same as to t he whole or a n y par t of the money so ordered to be paid, and again revive t he same whol ly or in

pa r t , as t h e Court m a y t h i n k jus t .

15. I f t he respondent shall fail to comply wi th a decree of t he

Court; for res t i tu t ion of conjugal r igh ts , such, respondent shal l the re ­ upon be deemed to have been gui l ty of desert ion wi thou t reasonable cause, and a suit for divorce or for judicial separat ion m a y be forth­ w i t h ins t i tu ted , and a decree nisi for t h e dissolution of t he mar r i age or a sentence of judicial separat ion may be pronounced on the ground of desert ion, a l t hough the period of th ree years may not have elapsed since the failure to comply wi th t he decree for res t i tu t ion of conjugal

r igh t s .	Such decree nisi	shall no t be made absolute un t i l after	the
expi ra t ion of six calendar m o n t h s	from	the p ronounc ing	thereof,

unless the Cour t shall fix a shor ter t ime .

10. The Court may a t any t ime before final decree on any applicat ion for res t i tu t ion of conjugal r ights , or after final decree if the respondent shal l fail to comply the rewi th , upon applicat ion for t h a t purpose, m a k e from t ime to t ime all such orders a n d provisions wi th respect to t h e custody, main tenance , and education of the chi ldren of t he pet i t ioner and respondent as m i g h t have been made by in te r im orders du r ing the pendency of a t r ia l for judic ia l separat ion be tween the same part ies .

17. I t shall lie Lawful for t he Court , if it t h i n k s fit, to refer any m a t t e r of law for the decision of the Supreme Court s i t t ing in Banco , and for the Court in Banco, if it th inks tit, to direct all necessary papers in the m a t t e r to he sent to t he Crown Solicitor for t h e purpose and u n d e r the conditions prescribed by section twenty-f ive

of t he " Mat r imonia l Causes Ac t . "

I S . I n this Act t he word " C o u r t " means t he .fudge exercis ing

jur isd ic t ion in M a t r i m o n i a l Causes.

19.    This Act shal l be read and const rued with t he " M a t r i m o n i a l

Causes A c t " and t h e Ac t s amend ing the same, and m a y be cited as

t he " M a t r i m o n i a l Causes Procedure A m e n d m e n t A c t . "