ENID IVY COLLINS Vs. WALTER GEORGE COLLINS

JUDGEMENT

(1.) This is a wife's petition for dissolution of marriage brought on 18 July 1927. The learned Judge has dismissed the petition on the ground that on 1 June 1926 there was a previous petition by the wife against the husband whereby she sought and obtained a decree for judicial separation upon grounds of cruelty and adultery. That decree was granted to her on 17 August 1927. The present petition is founded upon the same acts of cruelty and adultery as founded the previous petition. The petitioner explains that she did not wish for a dissolution of marriage partly because she was a Roman Catholic and had scruples against divorce and partly because she desired to see whether her husband would take her back and also because she was able to get maintenance. She asked for a decree for judicial separation on the previous occasion though she was entitled by law to a decree for dissolution of marriage. It appears that these reasons no longer actuate the lady to the same extent. It appears further that she has been unable-to obtain by process of execution maintenance or alimony from her husband. Accordingly she brings another, petition on the same facts without alleging any new matrimonial offence committed subsequent to the decree for judicial separation and asks now for a decree for dissolution of the marriage. The learned Judge has ruled that without new matrimonial offences a new petition cannot be entertained in these circumstances.

(2.) Mr. Ormond for the appellant has brought to our notice that in Raydon on Divorce, 2nd edition, p. 133, it is said that after a successful suit for judicial separation irrespective of whether further offences were committed either before or since, a suit for dissolution of marriage may be brought, and it appears that in Halsbury's Laws of England, Vol. 16, p. 498 a similar statement is made in an article of which the same learned author is one of the writers.

(3.) The authorities given for the petitions so laid down are three, Green V/s. Green [1873] 3 P & D 121, Mason V/s. Mason [1883] 8 P. & D. 21 and Fullerton V/s. Fullerton [1922] 39 T.L.R. 46; and reference has been made in this connexion to the case of Hall V/s. Hall [1879] 48 L.J.P. 57. The learned Judge on going through these authorities has come to the conclusion that they do not support the proposition laid down, and upon going through these authorities and certain others, I am forced to the same conclusion.