Marriage was a legal contract. Domestic law embodied dominant discourses of the family that privileged the ideal nuclear family: husbands were providers and protectors of families, and wives kept homes and minded children. The state was concerned with the regulation of marriage because marriage was the foundation of the social order. Social order necessitated domestic order, and a healthy state was
predicated on healthy families, in which men had disciplinary rights over wives and
children. This rested on the theory that ‘men were “naturally” superior to women in ways that were good for the family and ultimately for social stability’.2
It reinforced
1David Brown, ‘Recurring Themes in Contemporary Criminal Justice Developments and Debates’, in
Julie Tolmie and Warren Brookbanks, eds, Criminal Justice in New Zealand, Wellington: Lexis Nexis Ltd., 2000, p.11.
2Colin James, ‘A History of Cruelty in Australian Divorce’, Australian and New Zealand Law and
History Society Conference, Hobart, 10 December 2006, p.1. Retrieved December 2008 from www.anzlhesejournal.auckland.ac.nz.
the separation of domestic from civic space, which meant that ‘the events of the home
life should be looked at in a different light from events taking place elsewhere’.3
Although the paramount aim of the law was to protect marriage, in some cases the public order was thought better served by releasing one spouse from the obligation of cohabitation. Disciplining those judged to be guilty of a matrimonial offence ensured the maintenance of a high standard of marriage.4 Cruelty was a matrimonial offence because it threatened the institution of marriage, the physical and psychological integrity of individual members of a family for whom the state was ultimately responsible, and the social order.5 Under the 1928 Divorce and Matrimonial Causes Act until 1965, and thereafter under the 1963 Matrimonial Proceedings Act, cruelty continued to be a ground for a decree of judicial separation and a necessary ingredient of the ground for divorce based on habitual drunkenness. Petitions for divorce were heard in the Supreme Court.6 As outlined in Chapter 1, under the 1910 Destitute
Persons Act, “persistent cruelty” was a ground for maintenance and separation orders. It meant something more than a single act of cruelty. It was also a ‘common
ingredient in desertion and constructive desertion cases’ where it raised the question of whether one spouse had reasonable cause for living apart.7 Petitions for separation
were heard in the Magistrate’s Court and appeal cases were heard in the Supreme
Court.
Because petitions for divorce on the grounds of habitual drunkenness and cruelty were rare, this chapter is primarily focused on persistent cruelty as a ground for a
separation order and cruelty as a ground for reasonable cause to live apart under the 1910 Destitute Persons Act.8 Addressing cruelty under an act related to people’s economic well-being expressed the importance of marriage for economic stability,
3 John M. Biggs, The Concept of Matrimonial Cruelty, London: The Athlone Press, 1962, p.6. 4A. Stanton, ‘Unlikely to be Reconciled’, New Zealand Law Journal (NZLJ), no.23, 16 December
1969, p.704.
5 For example, the community as a whole had an interest in cruelty because it could only discredit
marriage, J.H. Luxford and P.R. Webb, Domestic Proceedings Under the Jurisdiction of the
Magistrates’ Courts in New Zealand, 2nd ed., Wellington: Butterworths, 1970, p.vii.
6C.G. Powles, ‘Cruel Intent’, NZLJ, no.23, 24 December 1963, p.648. 7 Ibid., p.648.
8 For example, of 1,164 divorce petitions made by women in 1965, only 16 were made on the ground
of habitual drunkenness and persistent cruelty, Department of Statistics, New Zealand Official Yearbook (NZOY), 1967, p.126.
and therefore, social stability. Unlike a divorce order, a separation order did not terminate all marital obligations; it removed an obligation to cohabit, but did not
‘otherwise affect the marriage or the status, rights and obligations of the parties of the marriage’.9
Nor did it grant freedom to consort. Domestic law continued to discipline individuals when only a duty to cohabit had been suspended. One New Zealand Court of Appeal judgment held a man to be in fault for deliberately consorting with a
separated woman when he knew her husband was trying to reconcile.10 Separation orders could be overturned. Even where a husband was found guilty of persistent
cruelty ‘thedoor is not necessarily bolted and barred for ever against him’ and great
care would need to be taken that it was not bolted against him where the wife was guilty.11If a wife was held responsible for her husband’s cruelty, she might not have been granted relief. Resuming marital relations could nullify separation orders. In a New Zealand case, it was held that a single act of sexual intercourse interrupted the period during which a separation order had remained in full force.12 This had
consequences for petitions under divorce law. However, because this discouraged the possibility of reconciliation, the 1963 Matrimonial Proceedings Act allowed for a resumption of cohabitation, no longer than two months and regardless of whether sexual intercourse took place, without affecting a separation order or agreement, or ending desertion.13
The 1957 Summary Proceedings Act governed procedure in domestic cases, so although civil in nature, like criminal ones, they were adversarial.14 The discursive field of domestic law was thus wrought with contradictions and inconsistencies. Under criminal law the state as the injured party determined guilt or innocence and
imposed a penalty for violation of the sovereign’s peace. In domestic proceedings, the
state, which had a vested interest, ruled over a private contest where an injured party sought redress for a breach of the matrimonial contract. Proving matrimonial fault put
9 Text from a standard agreement for which there were many examples in separation petitions of the
Christchurch District Court, CAHS, CH927, 1970, ANZ, Christchurch.
10Warren v Fry and Another 1970, New Zealand Law Reports (NZLR) 1970, pp.781-5. 11
Grieve v Grieve 1960, NZLR 1960, pp.813-14.
12Crawford v Crawford 1962, NZLR 1962, p.633.
13‘Review of Legislation –Family Law’, New Zealand Universities Law Review (NZULR), vol.1,
September 1964, p.329.
14
a couple’s relationship under intense scrutiny; the court was interested in the exact
nature of the relationship that preceded the abuse.15
Separation and divorce orders were taken very seriously because of the consequences for society, especially the effect on the children.16Children of “broken homes” were positioned as less likely to be good citizens and parents. One Supreme Court judge said that a separation order gave a wife the power to divorce her husband, it isolated the husband from his children, and in the case of an alcoholic especially, it could have grave consequences on his physical and mental condition.17 These constructions that embodied the ideal nuclear family, and discourses of victimhood and child welfare,
contested those that constructed a husband’s conduct as cruelty and made it difficult
for women to leave violent marriages.
Because of the perceived effects of marriage breakdown on the social order, the standard of proof for petitions under domestic law was very high.18 For petitions on
the ground of persistent cruelty, it was ‘absolutely necessary to have proper
evidence…someone whom had seen the husband cruel to his wife, or had seen him habitually drunk, or
knew for a fact that he did not maintain her’.
19 But because of theprivate nature of cruelty and women’s experiences of shame, often it was difficult to
prove.20 Many women did not share their experiences of cruelty and when unable to tolerate it any longer foundthemselveswithout corroborative evidence.21 When cruelty was witnessed or shared, beliefs around domestic privacy and fraternal loyalties combined with interest in self-preservation to prevent witnesses coming forward. The Society for the Protection of Home and Family (SPHF) observed that
witnesses were often reluctant to give evidence because they ‘simply do not want to be mixed up in other people’s troubles. Very often those witnesses are neighbours or work-mates, who have to remain in some way associated with the parties irrespective
15 Luxford and Webb, p.24. 16
Lock v Lock 1961, Magistrates’ Court Decisions, vol.10, 1959-1963, pp.162-3.
17Smart v Smart 1962, NZLR 1963, p.310.
18Spencer v Relph 1969, NZLR 1969, p.716; Rogers v Rogers 1937, NZLR 1937, p.436.
19Home and Family Society (HFS), Dunedin branch, ‘Points of Law Affecting Women’, AG-647-5,
Hocken Library (HL), Dunedin.
20 Lionel Rosen, Matrimonial Offences with Particular References to the Magistrates’ Courts,London:
Oyez Publications, 1965, p.185.
21 HFS records, Wellington branch, Annual Report 1958, p.7, MSX 3294, Alexander Turnbull Library
of the result. Very often they are afraid of repercussions, particularly if the parties are
of a vindictive nature’.22
In what was really a private contest, it was difficult for judges and magistrates to determine the validity of claims. A commentator from the 1960s expressed the dilemma well:
The domestic history of years is poured forth by husband and wife in alternate streams of opposite colours; the memory of each is ransacked for the most trivial detail; the posture of each mind is antagonistic in the extreme, drawing memory and sometimes imagination after it in the attack or the
defence….Unqualified accusations serve only to elicit absolute denials, and amidst a volume of evidence and at the end of a protracted investigation, the truth, obscured, disfigured and transformed by prejudice and passion, is indeed hard to find.23