Marriage and Divorce Laws of the World Part 50

WEST AUSTRALIA.--The Marriage Act of 1894 is virtually an acceptance by this State, so far as practicable, of the English Divorce Act of 1857.

The causes for absolute divorce or for a judicial separation are the same as those given above for the State of Queensland.

SOUTH AUSTRALIA AND TASMANIA.--In these two States, by legislative enactments, the causes for absolute divorce and judicial separation are the same as those given on opposite page for Queensland, West Australia and South Australia.

The exercise of appellate jurisdiction by the High Court of Justice of the Commonwealth in matrimonial causes has the beneficial effect of making the several States more and more uniform in their local legislation and judicial interpretation.

The federal Parliament has express authority under the const.i.tution to enact a federal code of marriage and divorce which will operate throughout the entire Commonwealth, and such a code in one form or another is inevitable.

The Commonwealth of Australia is not yet a dozen years old, but the need of superseding six separate systems of law respecting marriage and divorce by a national law on the subject is already apparent and under constructive discussion.

Of all the federative dependencies of the British Crown Australia is perhaps the most h.o.m.ogenous in race, religion and traditions, and it will probably be the first to adopt a federal law of marriage and divorce.

CHAPTER x.x.xII.

DOMINION OF NEW ZEALAND.

The Dominion of New Zealand is a colony of Great Britain consisting of North, South and Stewart Islands, or New Zealand proper, and certain outlying islands, including Cook Island, in the Pacific Ocean.

Its present form of government was established by an act of the Imperial Parliament (15 and 16 Vict., cap. 27) pa.s.sed in 1852.

The legislative power is vested in the governor and a bicamera General a.s.sembly or Parliament, consisting of a Legislative Council and a House of Representatives. The const.i.tution provides that the General a.s.sembly or Parliament may make laws "not repugnant to the laws of England."

The General a.s.sembly, by an act pa.s.sed in 1858, declared that: "Whereas, the laws of England, as existing on the fourteenth day of June, 1840, have been applied in New Zealand as far as applicable to the circ.u.mstances; but, Whereas, doubt has arisen in respect to such application--Be it declared and enacted, that the laws of England, as existing June 14, 1840, be deemed and taken to have been in force on and after that day and shall hereafter continue in force."

Hence it is apparent that the body of the law of New Zealand is founded upon the jurisprudence of England.

The judicial system includes a Supreme Court of the Dominion, District Courts and courts presided over by stipendiary magistrates.

MARRIAGE.--Males under fourteen years of age and females under twelve years cannot contract a lawful marriage.

All persons, male or female, under twenty-one years of age, who have not previously contracted a lawful marriage, require the consent of their parents or guardians in order to marry. However, the marriage of males fourteen years of age or more, or of females twelve years of age or more, without the consent of parents or guardians, does not make such marriage _ipso facto_ void.

Parental consent to a marriage of a minor must be given by the father, if living and competent to act; if not, then by the following persons in the order stated: (a) the duly appointed guardian; (b) the mother if she has not married again; (c) or a guardian specially appointed by a court exercising chancery powers.

No person can contract a new marriage who has a spouse by an existing marriage still living.

CONSANGUINITY AND AFFINITY.--Marriage is forbidden between all ascendants and descendants _ad infinitum_ and between persons related to each other by blood or marriage within the third degree, according to the method of computation of the civil law. According to this reckoning a person cannot marry a relative nearer than his or her own first cousin.

PRELIMINARIES.--Notice of a proposed marriage must be given to the registrar of the district in which one of the parties has resided for three days at least. If the contracting parties live in different districts notice must be given to the registrars of both districts. Such notice must set forth the names, ages, status and occupations of each party, together with their addresses, a statement of the period each party has lived in the district, and the name and place of the church, chapel or other building selected by the parties for the solemnization of the marriage. The parties must also make solemn declaration to the registrar or registrars to the truth of all statements of fact in said notice and show that there is no legal impediment to the proposed marriage.

Upon receiving the notice in due form the registrar will issue a certificate at once addressed to any officiating minister, or to himself, authorizing the solemnization of the marriage. All marriages must be registered, and the officiating minister or officer who fails to have the record made is subject to punishment.

Ordinarily, the best proof of a marriage is to produce the marriage certificate, together with proof identifying the parties, but if the record is lost, destroyed or never existed proof of the marriage may be given by direct oral evidence.

In most instances it is necessary to produce clear evidence of a marriage ceremony, but in some exceptional cases a marriage may be proved by long reputation. That is, if two persons live together as husband and wife for many years, and if they have always been regarded as such by their friends and neighbours, the courts will presume a legal marriage unless evidence is produced to prove that the parties were not lawfully married.

DIVORCE.--An absolute divorce may be obtained according to the provisions of the Divorce and Matrimonial Compilation Act of 1904 by a husband or wife who has been domiciled in the Dominion of New Zealand for two years or upwards on the following grounds:

1. Adultery of either spouse.

2. Wilful and continuous desertion without just cause for five years and upwards.

3. Habitual drunkenness for four years with habitual cruelty or desertion on the part of the husband.

4. Habitual drunkenness for four years with habitual neglect of her household duties on the part of the wife.

5. Conviction and sentence to imprisonment or to penal servitude for seven years or upward for attempting to take the life of the pet.i.tioner.

ANNULMENT OF MARRIAGE.--A marriage is annulled on the theory that true and proper consent to the marriage contract has never been given by the parties. The causes or grounds for such annulment are:

1. A prior and existing marriage of one of the parties.

2. Impotency or such physical malformation of one of the parties which prevents him or her from consummating the marriage by s.e.xual intercourse.

3. Relations.h.i.+p of the parties within the forbidden degrees of consanguinity or affinity.

4. That the marriage was procured by fraud or violence of one of the parties.

5. Mistake as to ident.i.ty.

6. That the marriage was performed without the required legal preliminaries.

7. Insanity of one of the parties at the time the marriage was solemnized.

Concerning the sixth cause the tendency of judicial interpretation and construction is to treat the legal requirements concerning formalities to be merely directory and to consider the marriage itself, if at least one of the parties acted in good faith, to be valid.

The courts of New Zealand view many of the statutory requirements concerning marriage to be necessary and proper regulations, and which, if disregarded, subject certain persons to fixed penalties, but are not necessarily essential to the marriage contract.

EFFECTS OF DIVORCE AND ANNULMENT.--The parties may remarry. During the pendency of the suit for divorce the husband is liable to provide his wife with maintenance or alimony. The amount granted is within the court's discretion, but generally it is about twenty-five per centum of the husband's income.

Upon the granting of a divorce decree in the wife's favour the court has power to grant the wife permanent alimony, the amount of which depends on all such facts as the husband's fortune and income, the wife's income and needs and the social status of the parties.

If there are children under full age, the issue of the marriage, the court will in the exercise of its discretion make such order concerning their custody, support and education as the ends of justice may require.

JUDICIAL SEPARATION.--Under the Divorce and Matrimonial Compilation Act a decree of judicial separation, which is the same in effect as a divorce from bed and board under the old law, may be obtained by either spouse upon the following grounds:

1. Adultery.

2. Cruelty.

3. Desertion without just cause continued for two years.

SUMMARY JURISDICTION ACT.--Besides the ordinary suit for a judicial separation a wife may obtain speedy and inexpensive relief by making an application to a stipendiary magistrate for an order of separation and maintenance.