THE SEPARATION ORDER: A STUDY IN TEXTBOOK LAW AND COURT PRACTICE
| Date | 01 January 1970 |
| DOI | http://doi.org/10.1111/j.1468-2230.1970.tb01252.x |
| Published date | 01 January 1970 |
THE SEPARATION ORDER
:
A STUDY IN
TEXTBOOK
LAW AND COURT
PRACTICE
A
MAGISTBATES’
court in its matrimonial jurisdiction has power,
inter
ah,
to
provide that
“
the complainant be
no
longer bound
to
cohabit with the defendant.” The non-cohabitation clause in
a matrimonial order (alternatively
known
as a separation order),
once the prime remedy available
to
ill-used wives, retains its pre-
eminence only in the statutory priority accorded to the orders which
the court can make by virtue of
section
2
of the Matrimonial
Proceedings (Magistrates’ Courts) Act
1960.’
But the separation
order is more than a historical relic. The Committee
on
Statutory
Maintenance Limits
in
April
1968
rekted
a
widely-held view that
‘‘
today the main concern of the magistrates’ domestic court is to
determine issues which will affect the wife’s fmancial position, and
only rarely now do justices make an order providing for the
non-
cohabitation
of
the spouses.”
a
But the practice
in
magistrates’
courts conflicts with this unexceptional statement of the law.
Separation orders still figure prominently
in
the exercise of the
justices’ matrimonial jurisdiction-to what extent and for what
reasons we shall endeavour to explain.
Magistrates are clearly given by the statute a discretion whether
or
not to include
a
non-cohabitation clause in any order they might
make; and the discretion is absolute. As
Sir
Jocelyn
Simon
P.
said in
Corton
v.
Cort~n,~
“
I
do not believe that
it
would be right
to
put any such clog
on
the discretion of the justices.” But any
discretion must be exercised judicially and therefore
in
accordance
with the principles enunciated by the High Court in decisions over
the last sixty years. Until the turn
of
the century magistrates
included, as a matter
of
course, a non-cohabitation clause
in
every
order for maintenance. Then
in
1906
in
Dodd
v.
Dodd
‘
Sir
Gore11
Barnes
P.
condemned the widespread use of separation orders and
declared that the intention
of
the Summary Jurisdiction (Married
Women)
Act
1895,
consolidating and extending the
1878
and
1886
legislation, was
to
empower justices to make separation orders
only
in
cases
of
cruelty and
of
habitual drunkenness where protec-
1
Subs.
(a)
of
8.
2
(1) provides for the granting of
a
ssparation
order.
Subs.
(b)
deals with maintenance for the wife, and
(c)
for
$he
husband: subss.
(4
to
(h)
provide for custody and
eccems
to
and maintenance for, ohildren.
2
Cmnd.
3687, para.
28,
p.
9.
A
8imf!ar
view is
to
be
found in the Law
Com-
mission’s
WorkisB
Paper
No.
9
Matrimo.+l
end
Related
Proceedings-
Financial Relief
April
%,
1967, p.
10:
But
today
such clsusee
{non-
cohabitation clauses] are very rare
and
inserted
only
when
ik
is
clear that
they are needed
for
a
spouse’s protection.”
8
[1966]
P.
1.
4
[1906]
P.
189
approved
by
the Court of Appeal in
Harrimn
v.
Harriman
“091
P.
123.
68
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