Separation Order on Desertion
| Published date | 01 January 1949 |
| Date | 01 January 1949 |
| DOI | 10.1177/002201834901300107 |
| Subject Matter | Article |
Separation Order on Desertion
THE question as to
whether
or
not
it
is desirable to
include anon-cohabitation clause in
an
order
for
desertion
under
the
Summary
Jurisdiction
(Separation
and
Maintenance) Acts 1895 to 1925 was raised
at
the
South
Western
Magistrates' Court recently
during
the
hearing
of a summons to
vary
an
order
by
striking
out
the
non-
cohabitation clause. Counsel for
the
complainant
sub-
mitted
that
the
magistrate who
made
the
order in 1929
had
wrongly exercised his discretion
by
making
such aprovision
in
an
order for desertion.
Unfortunately
the
original notes
of
the
case
had
been destroyed in
the
blitz so
that
it
was
impossible to
say
what
factors influenced
the
magistrate.
Mr. W. B.
Frampton,
the
present magistrate, said
that
it
was
not
for
him
to
sit as a
court
of appeal
upon
the
decision
of a former
magistrate
and
he would hold
that
the
clause
had
been properly inserted in accordance
with
the
dis-
cretion allowed
by
the
Acts. Confirmation
that
special
circumstances
had
existed was
provided
by
the
evidence
of
the
complainant who said
that
at
the
time
the
order
was
made
her
husband
had
sent
threatening
letters
to
her.
During
the
intervening years
the
husband
had
not
in
fact
molested his wife in
any
way'
and
now he was a
man
of
77 years of age.
In
the
magistrate's view this
constituted
fresh evidence
upon
which he could
vary
the
order
by
the
deletion of
the
non-cohabitation clause.
In
the
case of Dodd v. Dodd (1906, P. 189)
it
was held
that
the
object of inserting
the
words as
to
non-cohabitation
was
to
make
acomplete
separation
between
husband
and
wife because
the
safety
of
the
wife required it.
In
practice
this object
had
been overlooked
and
it
had
been
customary
to
embody
anon-cohabitation clause in
every
order.
It
was
pointed
out, firstly,
that
this was unnecessary in cases
of desertion
and
neglect to
maintain
unless indeed
the
applicant
particularly
desired to
have
it
and, secondly,
that
the
power was discretionary.
The
words of section 5
92
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