General That is the only guide loss which the husband has sustained. The application of the damages is governed by the circumstances of the case. At times it is set apart to provide a fund for the wife's maintenance (2), or for the maintenance and education of the children of the marriage (3), but first of all come the petitioner's costs (4). The Court will in proper cases make orders for speedy payment or to facilitate obtaining payment (5). 4. SETTLEMENT OF PROPERTY. Upon the decision of many suits it becomes necessary to re-adjust the marriage settlements existing to meet the altered circumstances of the case. The general rule of the Court is rule of the that the variation and disposition of the property in settlement will be governed entirely by the circumstances of the case at the time the application to vary the settlement is made (6). Court. The conduct of the parties and their pecuniary position is taken into consideration (7). In a case which came before the President in 1887, a petition was presented for variation of the settlements after a decree of dissolution of marriage by reason of the wife's adultery. The trusts of the settlements were of the usual character (see ante, p. 136, et seq.), viz., giving each of the parties a life interest, and then providing for the children of the marriage. A child had been born between the date of the decree nisi and decree absolute, and fourteen months after the wife had eloped from her husband. (1) Keyse v. Keyse & Maxwell, 11 P. D. 100. (2) Latham v. Latham & Gethim, 30 L. J. (Mat.) 43. (3) Billingay v. Billingay, et al., 35 L. J. (Mat.) 84. (4) Taylor v. Taylor, 39 L. J. (Mat.) 23. (5) See cases on these points collected: Browne & Powles on Divorce, 5th ed. p. 202, et seq. (6) March v. March, et al., 36 L. J. (Mat.) 38, and see Benyon v. Benyon and O'Callaghan, 15 P. D. 29. (7) Chetwynd v. Chetwynd, P. & D. 39; 35 L. J. (Mat.) 35. 1 The Court ordered the interests of the parties to be extinguished, but refused to transfer the funds in settlement to the parties free from the trusts of the settlement, and refused to order an inquiry into the legitimacy of the child (1). The conduct of the parties is a material circumstance, and it is the duty of the Court to consider whose fault it is that the marriage has come to an end, not with a view of punishing the guilty party, but for the purpose of seeing what provision it is reasonable to make (2). The judge has an absolute judicial discretion as to the provisions to be made for the parties respectively out of settled property, and the Court of Appeal will not interfere with that discretion unless there has been a clear miscarriage in its exercise. (3) 5. PROTECTION ORDERS. Wives living apart from their husbands, and acquiring property since their husbands deserted them, were liable till recently to have their property seized by the husband. To meet this gross injustice, the Court was empowered to grant protection orders upon the application of the wife. In considering at the present day the question whether it is necessary in a particular case to apply for a protection order, the provisions of the Married Women's Property Act, 1884, must always be borne in mind, under which all property belonging to women married after 31st of December, 1882, or acquired after that date, by women, whenever married, belongs to them for their separate use. applied for. Protection orders may be applied for under the Matrimonial How Causes Act, 1857, s. 2, either to the Divorce Court or in cases where the wife's position precludes her from the expense of this course, she may apply to a metropolitan magistrate if she lives within his district, or to the justices in petty sessions if she lives in the country, for an order to protect any money or (1) Pryor v. Pryor and Shelford, 12 P. D. 165. The statutory enactments relating to marriage settlements are M. C. A., 1857, s. 45; 1859, s. 5; 1860. 8. 6 (2); 1878, s. 3. The rules relating to the procedure by which variation of settlements is effected are Nos. 95 to 103 inclusive, and 204. (2) Wigney v. Wigney, 7 P. D. 177. The general practice is that a petition for variation of settlements should VOL. II. be signed by the petitioner, but the (3) See as to variation of settle- 3 Y Change in judicial opinion. property she may acquire by her own lawful industry and property which she may become possessed of after desertion against her husband or his creditors, or any person claiming under him, &c. Such an order, if made by a police magistrate or justices at petty sessions, shall within ten days after the making thereof be entered with the registrar of the county court, within whose jurisdiction the wife is resident (1). 6. REVERSAL OF DECREES OF JUDICIAL, SEPARATION, Of Decrees NISI, AND OF DECREES OF NULLITY. When a decree of judicial separation has been obtained contrary to the justice of the case, and in the absence of the respondent, he or she is entitled, on proof of the facts, to a reversal of the decree under s. 23 of the Matrimonial Causes Act, 1857. A similar power of reversing a decree nisi for divorce on good cause shewn, such as collusion or the guilt of the petitioner, exists under the Matrimonial Causes Amendment Act, 1873, which embodies the section of the earlier Act here cited, and applies it to suits for nullity (2). SEPARATION Deeds. Matrimonial differences are not unfrequently quietly settled without an appeal to the Court by means of separation deeds. The law now not only recognises the legality of such instruments, but even as has been pointed out in another portion of this work, enforces specific performance of agreements for present separation, though it declines to enforce agreements for future separation (ante, p. 577). The great change which has taken place in judicial opinion on this point was commented on by Sir George Jessel in a well known case in the following terms. 66 For a great number of years, both ecclesiastical judges aud lay judges thought it was something very horrible, and against public policy, that the husband and wife should agree to live (1) The Divorce Rules relating to protection orders are 124, 125, and 197. The provision as to registra tion in the county court is directory and not imperative: In the Goods of Farraday, 31 L. J. (P. M. & A.) 7. (2) The procedure under the above sections is regulated as regards judicial separation by rules 63 to 66 in clusive. as regard decrees nisi by rules 70 to 76. These rules apply only to any person other than the Queen's Proctor; to him rules 61 and 69 apply in relation to his intervention in any cause, and rule 202 when he shows cause against a decree nisi for dissolution or nullity of marriage. separate, and it was supposed that a civilized country could no longer exist if such agreements were enforced by Courts of law, whether ecclesiastical or not. But a change came over judicial opinion as to public policy; other considerations arose, and people began to think that after all it might be better and more beneficial for married people to avoid in many cases the expense and scandal of suits of divorce by settling their differences quietly by the aid of friends out of Court, although the consequence might be that they would live separately, and that was the view carried out by the Courts, when it became once decided that separation deeds per se were not against public policy" (1). (1) Besant v. Wood, 12 Ch. D. 605, 620. Com mencement of proceed ings. CHAPTER VI. PRACTICE. are Proceedings for divorce or other matrimonial causes specially excepted from the Judicature Rules, and the practice is governed by special rules with regard to the details of which the reader is referred to the authorities mentioned in the note hereto (1). It has been decided that appeals for costs can be brought from the Divorce Court by leave just as in the other Divisions (2). Proceedings before the Court for Divorce and Matrimonial Causes are commenced by filing a petition with a citation. The citation corresponds in some respects with the writ of summons at common law; it is a document directed to the respondent or co-respondent, and commands the party to appear within a certain time mentioned, and a warning that in case of default the judge or judges (as the case may be) will proceed to hear the charge mentioned therein, his absence notwithstanding (3). Every petition must be accompanied by an affidavit made by the petitioner, verifying the facts of which he or she has personal cognizance, and deposing as to belief in the truth of the other facts alleged in the petition, and the affidavit must be filed with the petition. In cases where the petitioner is seeking a decree of nullity of marriage, or of judicial separation, or of dissolution of marriage, or a decree in a suit of jactitation of marriage, the petitioner's affidavit, filed with his or her petition, must further state that no collusion or connivance exists between the petitioner and the other party to the marriage or alleged marriage. (1) Dixon on Divorce; Browne and Powles on Divorce; Oakley's Divorce Practice. 91. (2) Smith v. Smith, W. N. 1882, (3) See rules and cases thereon: Browne and Powles, 5th ed. p. 313, et seq., and see, as to amendment aud reservice of petition: Charter v. Charter, 58 L. J. (P. D. & A.) 44; as to striking out petition: Onslow v. Onslow, 60 L. T. 680; as to loss of original citation: Cridland v. Cridland, 60 L. T. 398; as to service abroad: see Trubner v. Trubner and Christiani, 15 P. D. 24; and as to dispensing or not dispensing with service on the co-respondent, Cornish v. Cornish, 15 P. D. 131; Bagot v. Bagot & Selton, W. N. (1890) 38. |