PRESENTACIÓN Y DISCUSIÓN DE RESULTADOS 4.1 Presentación de resultados
NIVELES DE CRITERIOS DE EVALUACIÓN DE LA CALIDAD DE LA ENSEÑANZAPRE CONTROL POS CONTROL PRE EXPERIMENTAL POS EXPERIMENTAL
Exploring women’s use of separation and divorce remedies and legal services in
practice indicates how wives used the law to resist husbands’ violence, the discourses
that supported or undermined their access to the law, and what impact these had on
women’s lived experience. Divorce and separation remedies were important to women because they terminated a duty to cohabit and enabled some form of
economic independence. While the statistics used offer some enlightenment on wives’ capacity to resist husbands’ violence, their limitation suggests that the key to
accessing women’s lived experience is in the discursive constructions shaping it. The statistics used are also more reflective of Pakeha women’s practices.81
Divorce statistics indicate that while a significant number of women used divorce remedies, a very small group made a petition on the grounds of cruelty coupled with habitual drunkenness, or on the grounds of a separation order (based on a finding of
78Smart v Smart 1962, NZLR 1963, p.310. 79
Interview with a judge, 1 May 2008.
80 Carol Smart, Feminism and the Power of the Law, London, New York: Routledge, 1989, p.11. 81Bronwyn Labrum, ‘Family Needs and Family Desires: Discretionary State Welfare in New Zealand
1920-1970’, PhD thesis, Victoria University, Wellington, 2000, pp.54-56. Labrum said that at this time large numbers of Maori marriages continued to be established by Maori customs and were not ratified
persistent cruelty) being in force for three years.82 This suggests that divorce was not
an important resource for wives to resist a husband’s violence in the first instance. It
is unknown how many women pursued divorce after a being granted a separation order. Such women might not have wished to divorce because the non-molestation provisions in a separation order ceased to have effect when a divorce decree was granted. Divorced spouses had to rely on civil legal remedies under the Summary Proceedings Act for protection. These were restrictive compared to those provided under the 1910 Destitute Persons Act. They were also heard in the Supreme Court, which meant it was a costly and slow process.83 As well, divorce may not have been desirable for women who invested heavily in discourses of marriage that linked social respectability to staying married.
It is difficult to determine how many women made petitions for separation on the ground of persistent cruelty in this time period. There are no accessible statistics of separation petitions and orders until 1970. However, the 1910 Destitute Persons Act was thought to affect more people than any other legislation.84 Generally, provisions under the act were regarded as a legal remedy for women.85 It was the most important piece of legislation aiding wives with violent husbands. Despite this, the Department of Justice did not keep statistics for actions under this legislation, indicating that there was a lack of interest in the conduct on which they were based. Gender constructions that relegated women to the domestic sphere and discouraged taking women seriously probably shaped this response.
in law, and Maori had less engagement with family law processes because cultural discourses were more powerful in shaping Maori social practices.
82 The majority of divorce petitions were made on the ground of a separation agreement being in force
for three years with women making up just over half of the petitioners. Adultery was the second most used ground to petition for divorce. In 1965 of 2440 divorce petitions, 1165 were made on the grounds of a separation agreement being in force for three years and women made 623 of these. 384 men and 273 women petitioned on the grounds of adultery. Of a total of 1165 divorce petitions by women, 16 were made on the grounds of habitual drunkenness coupled with cruelty. 49 women were granted a decree on the basis of a separation order being in effect for three years, Department of Statistics, NZOY, 1967, pp.126-7.
83 Magistrate Gilliand to Secretary for Justice, 24 August 1971, Domestic Proceedings Act 1968 –
Interpretations, 1970-1971, ABVP, 500, W4927, box 47, J 18-11-191, pt 1, Archives New Zealand (ANZ), Wellington.
84 Martyn Finlay, New Zealand Parliamentary Debates (NZPD), 1968, 358, p.3369.
85Domestic proceedings were ‘to secure rights given by the statute to wives’, judgment in Kilkelly v
Census statistics indicate that over the 1960s a small but increasing minority of the population used separation remedies, either as a recorded agreement or a court-
ordered one. It is unknown how many separated informally.86 While the percentage of legally separated in the population was stable, actual numbers rose substantially. From 1961 to 1966 there was an 18.3% increase, from 12,990 to 15,367 adults.87 Both the divorced and legally separated had increased numerically by 1971, and while some of the increase was a reflection of a shift in attitudes towards marriage, the increase was also facilitated by legislative changes introduced in 1968.88 The figures indicate that from the early 1960s the belief in cohabitation as a duty was fading.
It is also unknown how many people petitioned unsuccessfully for separation orders. A report prepared by a probation officer on petitions under the 1910 Destitute Persons Act recorded over a six-week period in Auckland in 1960 suggests that many petitions were made. Of 77 cases 65% cited the reason for marriage breakdown as failure to maintain, 35% cited persistent cruelty and 10%, habitual inebriation.89 It is not known how many of these progressed to a court hearing.
Petitions that did not cite cruelty did not mean there had been none. Other grounds may have been easier to pursue to escape violent marriages. Some lawyers were reported to have said that in one in three cases of divorce the wife had been bashed at some stage.90 A woman lawyer said that in cases for separation or divorce and other domestic affair cases she handled, the majority of wives had described at least one assault.91 Some cruelty might have resulted in separation agreements. Separation agreements had been available as grounds for divorce since 1920.92 The SPHF
reported that many domestic problems were settled by agreement before they reached
86Those that separated informally were thought to record themselves on the census as “married” rather than as “separated”, New Zealand Census of Population and Dwellings 1966, ‘Age and Marital Status’,
p.7.
87
New Zealand Census of Population and Dwellings 1961, ‘Age and Marital Status’, p.7; New Zealand Census of Population and Dwellings 1966, ‘Age and Marital Status’, p.7.
88 Discussed in Chapter 7.
89 Jennifer Daly, MG Reflecting. A Portrait of Marriage Guidance New Zealand, 1949-1989,
Wellington: Marriage Guidance, 1990, p.16.
90A member of the New Zealand Homemakers’ Union cit., ‘Wife-bashing’, in Phoebe Meikle, ed.,
United Women’s Convention 1975, Wellington: United Women’s Convention, 1975, p.48. 91A woman lawyer, ‘Wife-bashing’, ibid., p.51.
92
a stage of court proceedings.93 Anecdotal evidence suggests that middle and upper- class men were subject to a greater extent to marriage discourses, which meant
exposure of poor conduct could invite shame. Such men were more inclined to protect their reputations and social status and agree to separate rather than defend a petition. Lawyer Joan Rotherham recalls that middle and upper-class clients, whose husbands were often professional persons, were able to procure separation agreements because they could threaten police action if their husbands did not leave.94 The judge
interviewed for this study recalls that some middle-class women clients seeking separation agreements alleged physical and mental cruelty. Cruelty could also be raised indirectly when negotiating agreements. One woman client told her lawyer that she did not want her husband to have the children because he was a ‘bombastic bully’, an allegation that could support a claim of cruelty.95
Shaming discourses also explain why some women did not readily admit to being treated cruelly. The judge interviewed for this study said that, as a lawyer, it often
required a degree of probing to find out if cruelty was the cause of a wife’s problems.
Women often used euphemisms, such as not being provided with sufficient money or that their husbands were drinking too much. These constructions were not as subject
to shaming discourses because they did not bring a woman’s behaviour into question.
Women also less readily admitted to physical cruelty than they did to psychological cruelty.96
Women had strong investment in discourses that held them responsible for the well- being of marriage and shaped expectations of their behaviour. The interviewed judge found that even when women made petitions on the ground of persistent cruelty, they did not readily admit physical cruelty. When they did admit it, some offered excuses
for their husbands’ behaviour which made it difficult for a lawyer to pursue their
cases successfully. He thought that some women made incredible excuses for
husbands’ cruelty, for example, ‘I am inclined to nag or do other things, which annoy
him’.97
93
HFS records, Wellington branch, Annual Report 1958, p.5, MSX 3294, ATL, Wellington.
94 Interview with Joan Rotherham, 8 July 2008. 95 Interview with a judge, 1 May 2008.
96 Ibid. 97
In a 1972 study of 40 divorced and separated women, half the women alleged cruelty to themselves and/or their children, and 65% blamed themselves. Self-reported
“faults” included, ‘by not being submissive I might have invited trouble’, ‘perhaps I
put the children first by not accompanying him to the pub in the evenings’ and ‘I should have stuck up for my rights – I was inclined to give in to him for the sake of
the peace’. Another woman said that ‘perhaps she talked too much’.98
Similarly, one lawyer said that in her experience, women clients tended to complain about beatings when the marriage had reached a critical stage and they wanted a separation, but in general, many wives did not consider an occasional slap or thumping as sufficient reason to seek outside aid and bore it as part of the pattern of married life.99
The exact number of women who sought legal remedies to escape cruelty is unknown, but the preceding discussion indicates that the law was difficult to access, that
dominant discourses discouraged women from doing so, or that women used
alternative solutions such as separation agreements or informal separations. However,
the latter option was dependent on a husband’s co-operation, and if parties entered into a separation agreement, the wife could not get a deserted wife’s benefit if
maintenance was not forthcoming. In some defended separation hearings both parties had expressed a wish to separate, but disagreed on the amount of maintenance.100 It is probable that all three reasons applied, but shaming discourses and financial issues likely played a major part.
There was no legal aid in terms of state financial assistance to pay lawyers in
domestic proceedings. This was essentially an outcome of discourses that privileged family preservation, and legal discourses that constructed cruelty as a breach of contract, therefore a private contest between two parties. Domestic proceedings were expensive; lawyers were employed primarily by the higher socio-economic classes.101 However, most court registrars were expected to assist parties, and the state had a
‘very long standing arrangement with the Law Society’ that the profession would give
98Ormond Wilson, ‘Divorced and Separated Families: Some Mothers’ Views of Causes and Effects’,
MA thesis, Massey University, Palmerston North, 1972, pp.40-41.
99A woman lawyer, ‘Wife-bashing’, p.51. 100Observation by Barry, ‘Discussion’, p.344.
101P.J. Evans and S.D. Ross, ‘Legal Aid in New Zealand and Abroad’, NZULR, vol.5, 1972-1973,
what assistance it could.102 This promised more than it delivered. The Wellington Law Society was reluctant to supply a branch of the SPHF with the name of even one lawyer who was willing to act for their clients.103 Its reluctance might have been understandable, but it meant women could not easily know who could help them. The
Mothers’ Union also observed that, although the Law Society had given an
understanding that no one was to be deprived of legal services, few women knew of this or availed themselves of it.104 Some women implored the Ministry of Justice to help secure free or cheap legal aid, but the Ministry was not forthcoming. It replied to
one woman’s requests that it was sorry to hear that the Auckland Law Society was
unhelpful, but was sure that if the woman could establish that she could not afford legal services, the decision would be reconsidered.105 Women who knew about and lived close to branches of the SPHF could access its solicitors, who worked on a voluntary basis or for small remuneration. Many women did this, as did state welfare agencies, which frequently referred women requiring legal advice to the Society. This occurred to such an extent as to embarrass the Society for over-using solicitors’ voluntary services.106 The dominance of discourses that encouraged financial
dependence on husbands meant many women were excluded from accessing available legal remedies.
The adversarial nature of domestic proceedings, which potentially engendered stress and embarrassment, might also have discouraged women. Some measures had been introduced to reduce this. Since the 1939 Domestic Proceedings Act, petitions under the 1910 Destitute Persons Act had been heard in private, at least protecting the parties from public humiliation.107 But questioning by the defence lawyer could still constitute a revictimization for a woman complainant. From 1958 there was a ban on publishing evidence in divorce cases and this had minimized the bitterness, distress
102 M. Smith for Secretary of Justice to Registrar of Magistrate’s Court, 13 February 1970, Legislation – Destitute Persons Act, 1968-1970, ABVP, 500, W4927, box 47, J 18-11-190, ANZ, Wellington.
103
HFS records, Dunedin branch, Minute Meetings, 1970, AG-647-171, HL, Dunedin.
104Submission by Mothers’ Union September 1968, Committees Statutes Revision, 1968-1968, LE
1657, box 1, 1968/11, ANZ, Wellington.
105 Minister of Justice to Miss McKenzie, 18 September 1968, Legislation - Destitute Person’s Act and
Domestic Proceedings Bill, 1967-1970, ABVP, 500, W4927, box 47, J 18-11-161, pt 3, ANZ, Wellington.
106 HFS records, Dunedin branch, Minutes National Executive Meeting, Wellington 1968, AG-647-
171, HL, Dunedin.
and humiliation involved in divorce petitions.108 But still, parties to a divorce petition had to relate their evidence in a courtroom often crowded with strangers.109 The
repetition of ‘sad little tales’ might also have hardened those obliged to listen, the
repetition accustoming listeners to traumatic events and encouraging a trivialization of
domestic law compounded women’s difficulties accessing it. Some lawyers called matrimonial law ‘agony law’, a ‘squalid appendage to the criminal side of the court’.110
The judge interviewed for this study recalls that cases involving cruelty
were regarded as ‘incidental’ work.111
Joan Rotherham recalls that there was not
much interest in it, ‘it was considered a bit of a nuisance’ and there was very little
training about it.112 Petitions under domestic law were often referred to new lawyers in the firm.113 Inadequate training compounded their youth and inexperience. The Royal Commission on the Courts reporting in 1980 expressed concern that many newly qualified lawyers were unfamiliar with procedural requirements and suggested improvements in their training.114 Incorrect procedures could obstruct a woman’s petition. In one case the judge dismissed a petition for a separation order because the
word ‘persistent’ had been substituted with ‘consistent’.115
Some lawyers refused to take on such work. So many refused that the Hamilton District Law Society sent out a circular to its members complaining that some of them were not ‘playing the
game’.116
The Royal Commission criticized lawyers for failure to discharge their
duties to the court and to their clients ‘by using procedures and tactics to delay the final determination of the case’.117
Delays could mean higher profits. Because women
formed the majority of petitioners, these practices did not serve women’s interests
well. The fact that most complaints over litigation made to the Royal Commission referred to matrimonial matters and most complaints about lawyers were from
108 Redmer Yska, Truth. The Rise and Fall of the People’s Paper, Nelson: Craig Potton Publishing,
2010, p.125.
109 Dugdale, p.88. 110
Martyn Finlay, NZPD, 1968, 358, p.3368; Ralph Hanan, NZPD, 1968, 358, 1968, p.3367.
111 Interview with a judge, 1 May 2008.
112 Interview with Joan Rotherham, 8 July 2008. 113 Ibid; interview with a judge, 1 May 2008. 114
Royal Commission on the Courts, Report of the Royal Commission on the Courts, Wellington: Government Printer, 1978, p.284.
115Grieves v Grieves 1960, NZLR 1960, p.809. 116 Morgan, p.339.
117
women, immigrants or Maori people, groups marginalized by dominant power structures, is evidence of this.118
Court delays prolonged a traumatic experience. One case occupied three full days over the course of four months.119 One probation officer reported that there were
many cases of ‘severe cruelty where action for the protection of the complainant has
been delayed by the volume of work, and there are cases where men have absconded as soon as they get wind of proceedings, leaving women and children in financially
critical circumstances’.120
This also meant that women petitioners citing persistent cruelty could be reconstructed as deserted wives rather than as wives who had cruel husbands.
The male domination of the legal profession might have discouraged women from
approaching lawyers and sharing private information. The professions’s male ethos
reinforced the attitude to domestic law as low status and discouraged its members from taking women and their complaints seriously. In 1969 Roma Mitchell, the only woman Supreme Court judge in Australia, was invited to speak at the Centennial
Conference of the New Zealand Law Society. However, her speech titled, ‘The Family and the Law’, was intended only for the amusement of the wives who
accompanied husbands to the conference, and was published in the New Zealand Law Journalunder the heading, ‘An Address Given to the Ladies’.121
Women were legally able to enter the profession from 1896, but constructions of femininity discouraged them from doing so, or practising law when qualified. Women lawyers were rare before the 1970s. In 1969, of 2,720 members of the Law Society holding practising certificates, 45 were female (1.7%). In 1971, 4% of lawyers were female; in 1975 only 2.6% were.122 Joan Rotherham recalls being in 1973 the only female lawyer in Christchurch. She had found it difficult to get a job because most firms told her they did not employ female lawyers. Rotherham said a friend of hers
118 Ibid., pp.281-2.
119B.D. Inglis, ‘Family Law’, NZLJ, no.10, 3 June 1969, p.327. 120 Cit., Daly, p.16.
121Roma Mitchell, ‘The Family and the Law’, NZLJ, no.10, 3 June 1969, pp.181-190.
122Rachel Pond, ‘The Legal Response to Men’s Violence Against Women (ex-) Partners: Narrative Representation of Women’s Experiences and Discourse Analysis of Lawyers’ Talk’, PhD thesis,
who had trained at Oxford and had three years experience of English law had tried to