Source document: https://docs-lawep.s3.us-east-2.amazonaws.com/1698069772659.pdf (Guyana)
1,051 Members Present.

Gift to House of Commons.

1,052 LEGISLATIVE COUNCIL.

LEG IS LA TIVE COUNCIL.

ern District).

The Hon.

W. A. Phang (North Wes�• THURSDAY, 16TH NOVEMBER, 1950 The Hon.

G. H. Smellie (Nominated) The Hon.

J. Carter (Georgetown B1m1;h).

The Council met at 2 p. m., His Excellency Woolley, ' dent, in the Chair.

the Governor, Sir Charles K.C.M.G., O.B.E., M.C., Presi- The Hon.

F. E. Morrish (Nominated).

The Hon.

L. A. Luckhoo (Nominated) The Clerk read prayers.


PRESENT: The President, His Excellency the Governor, K.C,M.G., Sir Charles O,B.E., M.C.

Campbell Woolley, The minutes of the meeting of the as were taken as Council printed and circulated, read and -confirmed.

held on the 10th of November, The Hon.

the Colonial Secreta.Ty, Mr. J.Gutch, O.B.E.

ANNOUNCEMENTS The Hon.

the Attorney-General, Mr. K.C.

F. W. Holder, 'l'he Hon.

the Fin:mcial Mr. E. F. McDavid, Secretar) C.M.G., and Treasurer, C.B.E.
The Hon.'

Dr. J.

A. Nicholson (George­ town North}.

The Hon.

T. Lee (Essequibo River).

The Hon.

V. Roth (Nominated).

The Hon.

C. P. Ferreira (Berbice River).
COLONY'S GIFT TO HOUSE OF COMMONS - APPRECIATION of the opening The PRESIDENT: Hon Members, I have � letter in illuminated form ·from the Speaker of the House of Commons which I :Would like to read: "Upon the occasion of the Ne:W House of Commons, it is, the unanimous wish of all Members that I should convey to the Government and Pe,ople of deep and sincere thanks for the set of four silver-gilt generously to the House, will be a constant of the close and abiding link between this country and British had a more pleasant and I am particularly happy that it should have fallen to me to carry out the wishes of the House.
presented reminder Guiana.

No Speaker could have of British inkstands , which, so duty to, perform Guiana, an expression The Hon.

G. A. C. Farnum, 0.

B .

E ., (Nominated).

The Hon.

D. P. Debidin (Eastern D,:!merara).

(Sgd.)

DOUGLAS CLIFTON BROWN, Speaker.

26th October, A.D.

1950."

The Hon.

Dr. G. M. Gonsalves (East- 1,1 n Berbice).

The Hon.

Dr. C. Jagan (Central Demerara).

The Hon.

W. 0.

R. Kendall (New Amsterdam).

I propose to have it suitably and placed in this 8hamber.
I think that would meet with the approval of Council.

(Applause).

of Members framed PAPER LAID The COLONIAL SECRETARY laid on documen.t:- the table the following The Hon.

A. T. Peters (Wes tern The Report of the Census of British Berbice).

Guiana for 1946.

1,053 Dogs Bill - 16 NOVEMBER, 1950.

Committee.

1,054 GOVERNMENT NOTICES.
INTRODUCTION OF BILL The ATTORNEY-GENERAL gave notice of the introductio of � Bill intituled n and first reading "An Ordinance further to amend 1940, with re­ the Firearms Ordinance, spect to the Registratio Dealers and for the matters connected therewith" n of Firearms' ORDER OF THE DAY DOGS BILL The ATTORNEY-GENERAL : We have already taken the second reading on occasion of the Bill the last - intituled "An Or'dinance to render the owners of dogs liable for injuries by dogs; to provide better :protection from dogs and for purposes connected therewith.''
done to cattle that some of should meet this matter.

Those hon.

It :was then suggested the legal Members of Council me and discuss Members met me on Saturday when we go into Com­ and as· a result, mittee I will put forward an alternative proposal I beg to move that the• Council Committee clause.

of this Council.

move into for the approval this Bill clause by to consider morning and they just stay on the road­ to chick.ens side to get grass.
To add "poultry" this it will be somewhat creating a for those owners.

difficulty Mr. L UCKHOO: I would observe provision g or trespassing that in the definition "cattle'' swine is May I point out that in the included.
Pounds Ordinance, Chapter 93, section 7, where·by there is specific "the owner or person ,in possession of any pri­ vate premises or land may destroy all It swine str·ayin would appear that as the owner of land • can destroy by wl}atever means he is so disposed on his land, the dog may be one of the means used .in tb.e destruction of the swine.

May I suggest that in the defini­ tion of cattle the word "swine" be omitted?

thereon".

to employ any swine tr-espassing The ATTORNEY-GENERAL: While "scienter".
true so far as the Pounds Ordinance that is yet at the same time it does is concer'ned, so far as what this not alter the position Bill seeks to effect.

All that this Bill seeks is to · remove the necessity What hon.

Members of p:roving have brought to the attention of this Council is that in as much as it is sought to remove it in regard to cattle it should also be r'emoved and the dog should not be per­ beings, mitted to have a first bite in, regard to human beings and not in regard to cattle.
So far as the ordinary Common Law sta�ds the position same, particularly ternative hon.

Members.

should remain th1e having regard to the al­ tc draft which I have circulated in regard to human Dr. NICHOLSON seconded.

Question put, and agreed to.

Council in Committee.

Clause 2 -Interpretation.

in this clause.

Mr. LEE: The hon.

the Seventh Mr. ROTH: I think, it would be ad­ to include "poultry" visable I do not think that we should delete the word "cattle" vancing a little ahead.

altogether.
altogether.

We are ad­ While Th� ATTORNEY-GENERAL: it is true that in an amending Act in on re­ England "poultry" was included, flection hon.

Members will appreciate the fact that conditions different, ,of "cattle" would make it extremely difficult for those who rear poultry.

I that think, hon.

Members would realize You have the conditions many cases of people keeping a few are different.
here are somewhat it in the de:fiinition and to include is only on land but, Nominated Member (Mr. Luckhoo) of swine trespassing thinking he has not taken into consider­ perhaps, ation swine tr'espassing in which both the swine and the dog are trespassers, "scienter" in which case there will be which we are trying to avoid.

on any other place The CHAIRMAN: To include "swine" does not affect the which is operative.
I as it stands at present Pounds Ordinance do not see there is any point in not in­ cluding "swine" in this particular case where the swine is not trespass.ing.

If you cut it out, the swine would not be pro- 1,055 Dogs Bilt - LEGISLATIVE Cou'.Ncn.

Committee.

1,056 tected from the dog unless it is tres­ , passing.

I think we must leave "swine" in the definition.

to include fowls, ducks, gees,e, guinea fowls.

turkeys and Mr. DEBIDIN: I notice the point of the hon.
the First Nominated Member (Mr\ R-oth) is not supported.

to support what be has said, and what I by have to say will meet the case rais.�d the hon.

the Seventh Nominated Member I would like ' too.

There are cases where ·domesticated Mr. DEBIDIN: I certainly would add to the amending clause3 (1) "domesticated I do not think we should say any­ •bidrs".

thing more th'an that.


With all respect I am going to urge very strongly wor'd "cattle" stands in a different word "owner'"; analogy.- n to the it does not bear the same should include "birds".

It connotatio that the swine, birds, which include ducks and even grazing in a pasture in may be lawfully w1..h1ch a dog may enter and not only har·ass the birds but the swine and any other animals in the pasture.

The owner of that dog should be made liable for any injury to the birds, cattle or swine.
For that reason I am going to urge that in the definition here not only "swine" should remain but it should go further to include cows.

I notice that has not been put.

The point I wish to r•aise is.

that where a de­ finition reads in the way this one does., it else precludes than those mentioned, unless the defini­ tion of "cattle" In terpreta in our is.

given els·ewhere .

and •excludes Uon Ordinance.

everything The CHAIRMAN: I d.o not think so.


Bulls, cows, oxen, heifers, steers and· calves all come within the generic term "cattle".

T.his is only extending the generic term to include horses, mules, asses, "cattle" sheep, goats and swine.

I· do not think there can be any question about that.

That is commonly accepted.

Mr'.

DEBIDIN: We know what should mean, but when we are n for the purpose it seems that to exclude "cattle" laying down a definitio of this.
Ordinance, any kind of animal is not to mention it in this definition.

Ordinance and, I think, �his definition should •be wide enough, if we are giving it to include all animals under a definition, the definition This is a specific of "cattle".

The CHAIRMAN: I think the hon.

Member may then say we should define "owner" in the Ordinance.

generic term well understood.

is wrong in saying that the definitiori not wide enough.
"Owner" is a I think he is Mr. ROTH: I beg to move the addi­ tion of a further definition to the clause The CHAIRMAN: Has the hon.

Member seen the English Act?

It is there.

mules., It extends asses, sheep, The hon.

Mem­ the fact that the The ATTORNEY-GENERAL: This is taken from the Dogs Act 'of 1906.

The of "c �efinition attle" as.

we have it here, _ 1s the same as m that Act, and then later on we have bulls, cows, oxen, heifers, steer:.s.

and calves coming within the generic term "cattle''.
ber will appreciate definition is extensive.. the ordinary meaning of the wor:d "cattle" as.

ordinarily to include animals understood which normally do not come within the Ho,rses, term "cattle".

goats and swine ar·e brought by way of to pre­ the Statute into the term "cattle" vent the repetitio sheep, goats, etc., in the various sections of the Act.

So the definition term "cattle" should include ·all those other things, which normally do not come within the term "cattle".
you,, speak of "cattle'', nor'mally understood, those other animals which are added by way of the definition.

Therefore.

I wish to emphasize which the word "includes", word and which show.s is the important you ,the force of the .argument that "cattle" includes all those other words added in the definition of the Ordinance.

So -when in ·any other section you mean cattle as and in addition for the purpose n of cattlel horses, Dr. GONSALVES: I am supporting strongly the amendment moved by the hon.
the First Nominated Member (Mr. Roth), because here of late quite a few people have been attacked by dogs.

and · were told to institute their own and in some cases they were not ,in action, a position to do so.

I think, therefore, this will assist very m�ch.

timely introduction The ATTORNEY-GENERAL: In gives one and provides that that term 16 NovEMBER ) i950.

Committee.

i,058 answer to the last hon.


Member who has spoken, it :will be seen that the alterna­ tive clause is worded : Mr .. ROTH: If you are going to in the definition "poultry" include withdraw my amendment.

I would "In any proceedings for damages the owner of a dog for injury against done to any person or to any cattle by that dog, it shall not be necessary· for the person seeking such damages to show a ptevious in the dog, or the owner's kno.wledg such previous propensity".
mischievou s propensity e of The CHAIRMAN: I think the Coun­ cil ag:ree that "poultry" Then the Attorney to say what "poultry" is.

General will have should be put in.

Mr. ROTH: In that case I withdraw my amendment.

So that point is co-vered by the prQ­ posal.

The only other point is the ques­ g the word "poultry".

tion of includin I may say, is a very wide term, Poultry, At what point must we stop?

In the as "poultry" Poultry Ordinance "domestic fowls, turkey;s, guinea fowls and pigeons".
is defined geese, dui::ks, The ATTORNEY-GENERAL: In other words, this seeks to remove the of "sci:enter" doctrine so far as dogs inter-• poultry and fering with cattle, human beings, .including is concerned.

Mr. LUCKHOO: Clause 3 (1) will It have to be consequentially will have to read "Any person or cattle ........ ", because person is no:w· being included.

changed.

Alternativ e sub-claus e (1) agreed to.

Mr. DEBIDIN: Why not say A pernon may have a ''poultry"?
or a curri-e-currie, ,or a parrot, fJamingo, and they will hardly come under the de­ finition cated birds.

It is sufficiently inclusive.

of "p-oultry" if they are domesti­ The ATTORNEY-GENERA mesticate d bird" is rather a difficult L: "Do­ term.

The CHAIRMAN: It is very difficult to say •what a domesticate d bird ,is,.

The ATTORNEY-GENERAL: If it 1s the general view of the Council that should be added, the only "poultry" method by which it should be added is .by definition.
consideration Further defer'red General vide for the inclusion to enable the hon.

the Attorney­ to consider .an amendment to pro­ of poultry.

of the clause was Clause 3-LiabiLity of owner of dog fo'r injury to cattle.

Mr. DEBIDIN: I would like to be to sub-cluase quite clear on the proviso (2), that we add the words appearing in the last part of the sub-clause-"un­ less he proves that he was not the owner I think of the dog at that time"-again.

it should be repeated over in the proviso.


It is The ATTORNEY-GENERAL: presumed to the contrary.

in the absence of any definition Mr. DEBIDIN: In the sub-clause ­ is followed by a qualifica the liability tion, and in the proviso you have the same liability without the qualifica It may give a Magistrat to interpret that proviso occupy-, wher,e there are separate persons that ing a house on the person occupying part where the dog is found.
As soon as we leave out that qualification it is making a difference .

tion.

e the opportunity as fixing liability Mr. ROTH: I move that after the e amend­ word "cattle" ment the words "or poultry'' be added.

in the alternativ That The ATTORNEY-GENERAL: depends on how the definition is framed., In other words, if it is framed that "cattle" includes the term "cattle".

then it will come under "poultry" The CHAIRMAN: The hon.
Member that the last 15 words in sub­ suggests clause (92) be added to the proviso.

That can be done.

Mr. LEE: I do not agree with the as the hon.

Member.

It is a presumption, 1,059 Dogs Bill - LEGISLATIVE CouNctL.

Matrimonial Causes Eill.

i,060 hon.

the Attorney-General points out.

You to be the owner unless are only presumed proven other'wise and, therefore, presumption Magistrate.

proviso?

is only assumed to the Why you want it in the your provided in the Summary Jurisdiction Ordinance.
The CHAIRMAN: Is the hon.

Mem­ (3) be that sub-clause ber .suggesting re-numbered clause 4?

be done for uniformity.

It may The ATTORNEY-GENERAL: Mr. DEBIDIN: Or that it be numbered 4 (1) numbered 4 (2).

and clause 4 be re­ re- The CHAIRMAN: If it .is in sub-clause (2), I do not see why it should not be in the proviso too.

Amendment agreed to.

The ATTORNEY-GENERAL: whole point was that clause 3 has regard to injury to cattle.

It-deals with the conclusion our of the dog.


to be drawn from the behRvi­ The Sub-clause (2) as amended put, and agreed to.

Mr. DEBIDIN: Would not sub-clause (3)be out of text in view of the amend­ ment in sub-clause Should that not be put in clause 4 either at the beginning (1) and what follows?

or the end?

Mr. ROTH: Surely it would be neces­ sary to include persons under sub-clause (3).

The CHAIRMAN: Yes.
The CHAIRMAN: Yes.

Sub-clause (3)as amended will be re-numbered clause 4 (1) and clause 4 will be re­ numbered as clause 4 (2).

as The dog.

I answered the by saying that whet4er the dog itself The ATTORNEY-GENERAL: point which arises in regard to this is: Hon.

Members raised the point on the that a dog may remain on last occasion its.

master's premises and stray cattle may pr•emises; trespass on its master's it may be trained to chase cattle out of the .arises whe1ther prt�mis'eis.
'Dhe question it is a dangerous point on the last occasion it is a question is dog and not whether it has a dangerous bitten persons or cattle on its own pre­ mises; whether it can be allowed to bite six or seven persons premises the road five yards away it bites one or two to become a danger'ous, dog.

I hope hon.

Members see that to y or s propensit h mischievou distinguis dangerous the dog is when it does, the biting.
that a dog has the right to defend the sanctity will depend on where I agree of its master's or cattle on its own quality and then when it goes across land or property.

Mr. DEBIDIN: I raised the point (3) bears no relation e (1) of clause that sub-clause what appears in sub-claus 3.Clause 4 deals with the destruction dangerous another clause may be added after clause 4 to provide that the procedure in respect of a complaint dogs.

I would suggest that shall be the same as that to of Council resumed.
The ATTORNEY-GENERAL: to report progress and ask leave for the Committee to sit again tomorrow to resume consideration of clause 2 of the Bill.

I beg Agreed to.

MATRI2.VIONIAL CAUSES (AMENDMENT) BILL, 1950 The ATTORNEY-GENERAL: I beg of a Bill to move the second -reading intituled: "An Ordinance to amend the Matrimonial with respect to the dissolution of marriage and for purposes Causes Ordinance connected therewith."

This Bill, as hon .. Members see, seeks to the e certain to introduc amendments Cap.
143.

Matrimonial Causes Ordinance, Clause 2 of the Bill is based upon sec­ tions 1 and 2 of the Matrimonial Act, 1937, and hon.

Members will recol­ lect that that Act came into operation in England on the 1st of January, 1938.

Clause 3 of the Bill is adapted from 3 of th same Act.

The object of section clause 4 is to enable a wife, who has been by her husband1 to present a deserted Causes i,061 Matrimonial Causes 16 :NovEMBER, 1950.

(Amdt.)

Bill.
(Amdt.)

Bill.

1,062 case of Matthews e Verity (now Sir John Verity) said: v. Matthews, Mr. Justic' for divorce upon that ground if, as at present the juris­ of the Court in divorce only petition prior to her marriage, she immediately was domiciled in the Colony.
It is con­ sidered that such a measure would obv,iate much hardship, diction extends to cases where the petitioner domiciled acquires This measure would enable a wife, whose husband is not domiciled to take �roceedings f:or divorce !Where she has been deserted domiciled marriage.

in the Colony, arid a wife the domicile of her husband.
in the Colony before her in the Colony, by him, if she was is "There does not appear ever to a comprehensive that under the Roman n of cases decided in of South Africa and Ceylon ion by the Courts of the Colony us.

desertion" have been r·eported definit ·of the term "malicio but consideratio the Courts.
gives assurance Dutch svstem of law from which this grnund for divorce has been adopted, and to which one may rightly guidance in this regard, malicious desertion deliberate, tion of the mar'riage the will of the other and with­ 'against out just cause or legal justification."
must at least include a ·definite·, and final repudia­ state by one spouse refer for Absolute) Clause 5 (a) seeks to reduce the pe-riod between a decree nisi and the to six weeks, as is the decree absolute case in England by virtue of the Matri-­ General monial Causes (Decree Order, 1946, dated July 31st., 1946.
Clause 5 (b) enables the party against whom a decree nisi has b�en obtained, to apply for the decree absolute the party in whose favour the decree has been 111ade fails to apply for the decre·e to be made absolute.

quential Clause 6 is conse­ to clause 5 (a).


where "The existence of this determina­ tion on the part of the deserting mav be deduced from conduct of spous,e varying kinds, but that [its existence must be proved or pr'operl from the evidence desired the marriage that the Court should dissolve on this ground.
if it be is essential y inferred "The Court will not lightly deter­ bond where there is mine the marriage nc, clear and c.on vincing evidence of , nor by its decree such final repudiation wHl the Court convert into final dis­ solution what mav well be but a withdrawal, temporary hasty disagreement.

standing."

the result of or misunder­ and in 1946 I .would point out to hon.

out that the divorce law of the Social Council wrote a letter I am sure that a Bill of this nature will to hon.

Members.
Members.

There one aspect of the Bill with commend itself is, I believe, regard to which there is, some controversy, and that is th�• part which d·eals with des€r�ion.

Members that as far back as 1946 the Christian pointing Colony needed amendment, the late Mr. Justice Luckhoo from the Bench made the comment that the divorce law of the Colony was too easy.

As hon.
As hon.

Members are aware, in England in 1946 the Lord Chancellor mittee to examine, among other questions, administration the present a divorce- whether decree nisi and the decree absolute should be reduced fr.om six months to six weeks.

of the Th,at resulted Matrimonial Causes General Order to which I have referred, which was dated 31st July, 1946. of the law of the period between in the introduction (Decree Absolute) appointed a Com­ this I should like to emphasize portion of Mr'.
Justice in which he wrote: Verity's.

decision for judicial "It may be desirable that the law as in the case for separation, some y desertion should prescribe, petitions per'iod beyond which alone could such a petition as.

the present be brought, not with the objed o,f substituting statutor desertion, period within which the erring s.pous.e might have time for· consideration and spouse have opportunity the aggrieved by every means just for seeking.

This is a view which in rconciliation.


my opinion might Jwell receive con­ sideratio .... " but for securing a r'easonable n in the proper quarter for malicious I suggest to hon.

Members that this.

That was a pronouncement and now is.

the is the proper quarter, opportunity.

from the Hench o,f a former Chief Justice of this Colony, and I would point out that if, as is the case, there is a statu­ tory period of two years.
under section 3 (1)of the Matrimonial Causes Ordin.ance, With regard to the main point in the Bill1 the :questio point out that some time in 1936, in the n of desertion, I wouid 1,063 Matrimonial Causes LEGISLATIVE COUNCIL.

(Amdt.)

Bill.

1,064 ·only the parties ties.

It is hardly necessar'y separa­ to divorce to judicial Cap.

104 with respect I suggest tion, it is reasonable and logical, that the period with to hon.

Member's, should be longer.


For respect that reason the Bill seeks to make th� period thr·ee poenitentiae compose their differences to the tCourt and put an end to their marital me to emphasize years to provide the locus to enable the parties to and not to go for the fact that it is not to foe marriage to be consider'ed but also their children, who very often suffer as a result of the ·breach of the marriage and final determination I would empha­ relationship.

that by the sam'� size to hon.


Member's in England found token as the Parliament it necessary whereby estranged spouses could think over matters and compose their differ­ ences, so in this Colony I think this is equally 2 of the Matrimonial England provides if not more so.

Section Causes Act (1937) in 1937 to provide Therefore, desirable, a period of : "2.
The following d for section substitute seventy-six Judi,cature (hereinafter Act"):- shall be section one hundred and Court of Act, 192� of the Supr·eme (Consolidation) called "the principa l "176.

A petition for divorce may be presented to the High Court (in this part of this Act referred , either by the husband "the court") or the wife on the ground that the responden to as t - (a)has since the celebratio e committed n of adultery ; the marr'iag or to enable parties.
to perhaps to live peaceably in the Court, we are not doing g that is new, ,but we are a line which was found to be and which, after due delibera­ this.

step to enlarge-the time by fixing ?

period of three years as a locus pcenitentiae see reason and to be persuaded and not tak� pro­ together ceedings somethin following necessary, tion and careful into foe Law of England.

it is necessary say anything the Bill as a whole will commend itself to all hon.
Members as a very necessary step in the social life of the Colony.

I move that the Bill be now read formally a second time.

I do not think for me to I feel that at this juncture further, because thought, was incorporated Dr. NICHOLSON seconded.

s silk, Mr. DEBIDIN : I have listened with to what.

the hon.
the hon.

the had to say, and one from what he has very great attention Attor'ney-General thing is quite obvious said, and that is that he anticipate opposition in so far as the grounds for divorce I· speak with the are concerned.

behind me in this entire legal profession matter.

I h.av,e had the opportunity of with alm:ost every member of speaking the profession.
As a matter of fact many of them, including one or two learned d me and asked me what have approache I intended doing - whether I would not oppose the Bill in so far as it relates to malicious divorce.

in the world access to the Courts for dis­ has been made solution •easier of marriage have been made fa;r greater in number as well as easier in their nature.

Gone are the days.

when people had to depend upon ecclesiastical of marriage.
canons for dissolution this Colony we have for the past 34 years been basing the grounds for dissolution of marriage upon s·ection Matrimonial 143, which reads: and )the grounds for dissolurtfon It is.
true that everywhere as a ground for 9 of the Causes Ordinance, Chapter of marriage desertion In the petitioner (b)has deserted without cause for a period of at least three years immediately the presentatio pr:eceding petition ; or n of the (c)has since the celeibratio treated the petitioner n of the marriage with cruelty ; or (d)is incur·ably mind of unsound under and has be·en continuously care and treatment at least five years immediately preceding the pres-entatio petition; for a period of n of the and by the wife on the gr'ound that her husband has, since the celebration of the marriage_.
sodomy or bestiality."

been guilty of rape, Hon.

Members will see that in taking "9.-(1) Any husband or wif.e may a petition to the Court praying on the ground that his wife present that his .or her marriage dissolved, Or' her husband has since the solemnisa­ tion thereof malicious adultery."
been guilty of adultery, with or without desertion may be or subject of the High Court of Justice to any rules of of Division in England, Court made under this Ord· nance the Supreme Court of Judicature Or'dinance, ance, hereafte called "the rules.'''

In other words this very Ordinance or any amending Ordin­ r in this Ordinance 1,065 Matrimonial Causes 16 NOVEMBER) 1950.

(Amdt.)

Bill.
Bill.

1,066 In other words, for the past 34 years are to be presented n of the to the and in my We in thjs is shar'ed desertion - maliciou for divorce transport experience In my limited there has been no The tb.e from al jurisdiction I refer particulariy n or adultery - for a dissolution s for judicial n of conjugal of malicious The Rules also relate to refer·ence and the jurisdiction we have been accustomed to go to the Courts of our Colony and urge either one of two simple grounds s desertio of marriage.
of about a dozen years I have been able to follow decisions which have been given upon this particular section, humble opinion, which I believe by other legal Members of this Council, and those outside, difficulty whatever in so far as tl1e divorce law of this Colony is concerned.

ground of maliciou; desertion, which Bill seeks to wipe out completely our divorce law, is a .

very important ground in that it relates back to the old Roman-Dutch ,Law nractice.
Colony have held v,;ry dearly to some of the relics of the Roman-Dutch Law practice.

method of obtaining been commented upon by West Indian J.udges and other jurists this Colony, and I think it would cause a furore in the community if any attempt to change that system of conveyancing.

The same objectio posal to abolish malicious.

I· am therefore a ground for divorce.

the points asking Members to consider which I will advance against the argument adduced by the hon.
the Attorney­ General for the introductio n of an English practic-e which has •been amended.

The Matrimonial Causes Chanter 143, states quite Ordinance, clearly the origm of this particular 2 provides practi�e.

to any Ordinance, to the makes very important of the practice on in the common law being carried of the Courts of matrimoni this Colony.
In that jurisdictio Courts of this Colony we are governed by a set of Rules known as the Matri­ monial Causes Rules, by which a definite prncedure is laid down as to how petitions · on the two grounds and adultery.
petition It seems restitutio to me that if we are going to attempt to disrupt of Colony, a well established which has never been complained against, we must wipe out the entire Matrimonial Causes Ordinance and Rules and introduce by one single England as it relates to matrimonial causes, General such an innovation.

that then I am asking this Council to consider the wisdom of just changing the law in respect of one particular type of for divorce.
As is the case proceeding in England, we have developed case la:w n as on this question desertio of malicious What is.

this a gr·ound n we are dealing with ?

malicious to the has referred The Attorney-General leading local case of Ma':Uhews v. Mai'!hews in which Chief Justice Verity the law on the point clearly and alS'o laid down what he considered a true interpretation With your permission, a passage but I think the hon.
the Attorney­ is too cautious a man to attempt Sir, I will read to be found at page 450 : what has been the foundation called "the Court") shall as being an excellent clause the Common Law of who have visited n applies.

to the pro­ for -divorce.

separation .

desertion.

of malicious If he would not do practice, reviewed practice in this rights.

Section desertio desertion as in this .

which has was made and : "2.


Subject the Supreme Court (hereafter Ordinance of all jurisdiction in respect exercise causes and other matrimonial divorces of de­ and in respect and disputes, clarations as to the legitimacy of a child and as to the validity of any marriage under this or any other Ordinance in as full and complete it has hi�herto in divorce and matrimonial causes under the Roman-Dutch ahd that jurisdiction possible be exercised manner and in accordanc same principles and rules.
-as j uris�ic­ tion in those matters is exercised by the Probate and Admiralty Divorce in the same e with the or under the common law, exercised common law, shall as far as a manner as jurisdiction to be the fundamental e with it is in accordanc Laws of this should be "Nevertheless what I conclude principles of the Divorce Colony that the respondent shown by evidence of his or her con­ duct definitely e the final determination and of the marriage state, obligations also that it should be shown by evi­ dence of the petitioner's conduct that his or her such repudiation to have reached a to repudiat is against 1,067 Matrimonial Causes LEGISLATIVE CoUNCil (Amdt.)
Bill 1,068 one being a successful of the marriage in the future.

In those circumstances a�1d in the interest of the children, there are any, it ,is: best that the marriage be dissolved and the custody of the children pla,ced in proper authority foT their proper upbringing.

That is the practice.

if d to it is not re­ to an order of the Court, will.
While, therefore, quired by the Laws of this Colony tha there should be any defined period of desertion nor that legal proceed­ ings should have been institute secure either the return of the desert­ ing spouse or refusal of return in obedience yet in many cases the element of time will be one for consideration in ascer­ taining is in fact evidence tion.
The efforts of the petitioner to secure or afford opportunity for the return of the respondent, will be for consideration ing whether or not the withdraw is against is in accordanc that I approach facts in the present moreover, in ascertain­ the will of the petitioner.

whether or not the desertion e with these principles consideration of final repudia­ case."

of the It We are not forced to wait for any or may commit First you are to on the people tenets in force.
It the r,eligious and the wife will have an oppor­ per.Son as, co-respondent, that is, to avoid , to avoid anything that offends On the other the fact that where you can go to the Court; but then may I urge time.

If we have to wait for any time what may happen?

The husband by force of circumstances adultery, tunity at some stage later to mulct an unfortunate on the other hand because of the parties being apart the wife may commit adultery with some man and the husband can bring an, action for damages.
alainst person.

So what is intended immor·ality against seems to be an imposition to ask them to wait three years before a can be !

)resented.

petition hand, I must not overlook there is a pr:oviso earlier, th.at proviso means double cost a.pd double presentation?

have leave to bring forward the petition.

I do not know what decision on it, cases of exceptional the part of the respondent.

example I have given.


It may not be a case of exceptional depravity part of the wife that the marriage was not successful, that you are out of Court.

There thing that must be mentioned.

for divorce cannot be presented unless.

you have both Barrister and Solicitor engagep..


It is one of the most costly proceeding this is going to be an imposition in having a petition first to present leave to present the petition for dis­ solution of marriage ibefore years period is over, this duplicity that will prevent proceedi He may r from proceeding.

a petitione say "I am going tq remain for three years".
As a result everything, respectfully There will be a marriage out any proper guidance opportunity state but with­ ,and with an y to creep in.

s, there are depravity Take the and the Court may say is some­ s in our Courts of Law.

If will go to the dogs.

ngs is something for immoralit A petition to the Court for submit, the three on the on of I He has, in other words, ·1aid down the for to the Courts for on the ground of There are other which govern the practic-e a p-etition n of marr'iage .

desertion.
desertion.

principles presenting dissolutio malicious decision dcwn a decision refers to as being the decision and gives the fullest definition of relates the term "maliciou In my s desertion".

s. before this, but he has laid which every lawyer' which .
own opinion, if two parties are marr.ied to some­ his or her affection and at some stage in their lives but you know that her affection tog-ether it is found impossible for one to live with the other, they realize they have never loved each other· and one of them has transferred one else -let us say the woman ; you cannot prove adultery the wife has transferred to someone else, and efforts have been made by the husband in vain to get the wife t� live a proper married life - it is clea.r that the wife has :put an end to the state.
There is.

no ho:pe what­ marr'iage Under the ever of their living together.

Laws of our Colony the husband can present a petition having to wait for two or three years, as in this case three years, to present a petition.
immediatelv to the Cou;t, according Chief Justice Verity, intention repudiate has made every effort to bring everything together' married life is concerned but it was hope­ less and, further, and ,he will have to prove to the decision on the part of the wife to the marriage of that there was.

an to normalcy so far as their a case The husband can present to the Courts without tie and that he there seems no likelihood 1,069 Matrimonial Causes 16 NOVEMBER, 1950.

(Amdt.)

Bill.
(Amdt.)

Bill.

1,070 Council will giv� suppoTt t.o what I am saying.

I would urge that in our Colony we adulteTy is presented For that reason of marriage.

That is a point is heard I say it is veTy in respect of which is a very happy have a,.

system of procedure malicious desertion one for many reasons.

In the first place, we avoid the washing o.f our dirty linen in the Courts.
Your petition and the worst may have happened in the married life but the erring spouse may not defend and the petition · ex-parte.

us.eful that the period of six months to get a decr·ee absolute should be reduced to six weeks, showing again the tendency to make things easy for petitions.

for dissolution which we have to consider, the avoidance where of what occurs in other countries one's dirty linen is washed ,in Court.
If you have to wait for thr-ee long years to obtain a dissolution of marriage - and this has.

been known to be the case in - there may England and other countries be staged what is known a.s, the hotel stunt in which a man goes to a hotel and then somebody is taken there and there is a frame-up of adult&y.

Perjury might be committed to establish :where actually adultery has.

not taken place.

I think, if there is anything that 'Would offend the ecclesiastica would.

There is.
There is.

no• doubt that pe:ople will try to bring cases.

for adultery because they will not have to wait very long to present their petition to the Court.

And more than that, you will have wha,t is.

not to be re€ognize by ·any law or decent community - con­ nivance and collusio n all the time.

Two parties has broken down.

That seems to be some­ thing inevitable w;ill connive • and collude to bring for­ ward a petition against the other so that the marriage can be dissolved.
There you have not only tlhe tendency or possibility being committed.

n and assistance to.

connivance and collusio further to perjury in every petition for The affidavit has dis.solution of marriage.

to state clearly that there has been no n between the connivance or collusio parties, but we· know that much of that is.

now being done.

How much more would it be done in the future to.

bring I the cases.

within the adultery ground.


feel sure that legal Members of this cannot hit it off and their marriage and urge the worst things in these days.
Parties You are going to lend d or supported l laws, that of perjury practising from this satisfied We feel sufficiently As I have said, the prac­ for the dissolution from the Roman-Dutch which we see around the City •' I feel ,:;ure that due regard will be giv,en to this Roman-Dutch law relief which we feel proud to have in our midst, and let us not divorce ourselves landmark in the history of our Colony.

It is as great a landmark as any of the memoric:ls of Georgetown.
tice has resulted law :r;ehc of whi.c-h we, la.wyers "' in the Courts, are pr·oud.

We are satisfied with it and it has no comparlson with the English practice of marriage.

to even .if other things are have it retained, from the English practice.

If introduced the hon.

the Attorney-General he -,.vishes can have clause I· would move :m amendment to clause (a) for the insertion of malicious adultery", found jn section 9 of Chapter 143.
In other words, you are retaining ➔he prac­ tice of malicious desertion It is something to meet v;hat this Coun­ cil should be very slow to change.

It is not the English practice but it is a practice amount of sentiment, of usefulness to be slow to change it.
In the very decision in the case of Matthews and Matthews by Chief Justice Verity it is stated: of the words "or has been guilty with or without thus introduc.ing the phrase which has a certain a certain amount in this Colony, and we ought (b), but certainly in this Colony.
desertion we are changing, "The efforts of the petitioner to secure or afford opportunity turn of the respondent, be for consideration whether or not the withdrawal is against the will of the petit10ner .... " moreover, in ascertaining for the re­ will < · In other words, this presupposes the r made several before making the petition, efforts.
to get them petitione and together there is when he has failed completely of the marriage definite wilful repudiation tie and he has the right to present a petition for malicious desertion question cuts both ways.

The children will suffer' worse if a bad marriage contract 1is, kept on; the ensuing nagging and other things will give a bad impression of children suffering as a result .

The to the children.

1:071 Matrimoriial Causes LEGISLATIVE CouNCfL.

(Amdt.)

Biil.
(Amdt.)

Biil.

i,072 the pres,ent­ and here credit, presented to continue y preceding n of the partie� whereby the period Let me illustrat unfortunately to think that a Judge in credit for exercising at an early stage ·of their on must be given the lJfe whereby it is living together with As the Bill stands, their discre­ functions properly, must run.

There is an appar­ but that d in the ptoviso, Attorney­ We have to place reliance form one can foresee many in its present e one.

A per­ difficulties.


.son who has beeh married for many years, over a period of 8 or 9 years, en­ counters in his difficulties or bier matrimonial impossible the other partner.

there will have to be a period of three years immediatel a tion of the petition of desertion ent safeguar appears, to me at this stage a trifle ambig­ uous as to whether the three yea;rs past to three years of marriage refers years prior to the desertion.
envisage of years people have been not living together been justifiabl to come together situation, they will have to wait for this period of three years preceding of for divorce.

a petition I think it would be better in such circum - should part and a stances that the parties.

to the clean atmosphere children life..

I feel sure the Court must be ,given the fullest again we come to the other point in answer to the hon.

the General.

our Courts.

Our Judges.


fullest tion and their judicial and I hesitate the ,contentio examining will not see whether it is a case of hasty or step to put an end to the withdrawal law the marriage tie.
Under our present Judges know what measurement of the law they are guided by in determining whether it is the best judgment for a dissolution them credit that they are not going to contribut ity but will exercise their discretion determining withdrawal is our safeguard, and we must give the Judges of our Colony some amount of responsibi lity in safeguarding is to be safeguarded which is being introduced.
Members will consider they wipe away what is a very senti­ mental practice they will give the necessary what I have said.

or three One can also cases where over a long number as man and wife and there have made e and fair attempts and make good of the whether· it is a wilful from the marriage in this new Bill I do trust hon.

e to what may lead to immoral­ yet despite these had failed or hasty tie.

That of the marriage.

in our land.


I feel sure carefully whatiever Let us give support before in to the presentation exhaustiv the necessary he has made many points I agree with my hon.

Friend who has just taken his seat that this situation wiE lead to the presentation of fake evidence of perjury, and maybe the committing to whereby people will create situations evidence provide upon which they may obtain dissplution.

In e survey of the hon.


Member's the position which I will not ;reiterate, urge on the Council the fact that the of the Court has to be satis­ consci-ence fied that every �ndeavour has been made for the purpose of getting together.

cases where the Court of this Colony has to grant a decree nisi because refused conscienc e of the Court was not satisfied.

I do feel that with the exception particular clause the remainder Bill would commend itself of it to Members.
I have known of undefended of that of the tlhe parties on the face but I will the clause.

Mr. SMELLIE: The last two speakers I on this debatable concentrated agree with a great deal of what they have said.

Apparently introducing .

obtains Objects and Reasons are particularly silent the only reason for it in the English law, but the this amendment What I mean to say on that point.

is because to reiterate Mr. LUCKHOO: The hon.


Member with this has dealt very exhaustively matter and I do not propose many of the points he has made, but may that a Bill with so many need­ I observe it seems regrettable ful features that one us clause 9 has to criticize this contentio (b)in it.

A divorce petition is presented to in this Colony by means of a petition e of the the Court, and it is the c·onscienc Court which has to be satisfied a decree nisi is made.
That is a very strong point, I urge, in favour.

of the retention obta.inii:ig, Court must be satisfied malicious the granting of g decree n!isi.

That, Sir.

is, the safeguar the solution, problem which has been offered by the In the Bill hon.

the Attorney-General.

of the system as presently whereby the conscience -of the d and that is to the I suggest, that this state of desertion before is one which justifies •1,073 Matrimonial Causes16 NOVEMBER, 1950.

(Amdt.)

Bill.
(Amdt.)

Bill.

1,074 and Reasons in law, whether that they obtain in the English by that 'is, the Objects regard to clause 4 are given in extenso but ,in regard to clauses 2 and 3 are par­ y meagre, and I am driven to the ticularl conclusion law.

What I would like to know, is, how it has worked in the English in uoint of fact it has or has not resulted in wh-at has been termed a state of unholy wedlock, and fake evidence a result for dissolution of in which a ,p marriage can be presented.
Until I am that the law in this particular satisfied has worked well in England, I instance shall have to oppose that particular amendment.

where in point of fact collusion of adultery of three years being the minimum ietition is rife as detectives are engaged to do tries private hunting in· order to produce evidence that will be satisfactory to the parties.
up has been successful e of cases that to bring that a divorce patching I think it was an American Judge who said that when two people reach the stage of trying to have their marriage dissolved, in such a small percentag it is a waste of time attempting that about.

I am not in a position to say • that.

It has been explained by legal Members that not until the conscienc e of is the Court is satisfied about touched I was particularly · granted.
the point made about the obtaining of evidence, fictitious pened in the case of parties know.

It is not unusual for private detectives to be engaged to follow a wife or a husband and to obtain some sort of evidence.

It happens being legally trained to this clause being amended to a con­ e extent which would bring about siderabl the satisfaction the hon.

Member's Not I see no objection which we seek.

I support even in England.

because it has hap­ argument.


I actually Mr. LEE: I desire to support the of this clause of the in ,respect l that if parties ;petition and I de3ire to emphas,ize proposals Bill which the hon.

Member for Eastern Demerara and the hon.

the Seventh Nominated Member have put forward.

Th�y have put the legal aspect before this Council them.

But I would also like to say in answer to the hon.


and learned the Attorney-Genera the Court on t:ie ground of malicious they can after obtaining the desertion dec�ee nisi re-many.

I know of more than one case in this Colony in which the decree absolute wa3 granted and the parties.

are again married.

So the question of giving time for reconciliation is only a sort of r·ea.

herring being drawn across the trail in respect n. of a dissolution As the hon.

the Nominated it is entirely of the Judge,.


and and the conscience there are cases where the Court has to grant a decree nisi when it is refused would ask the I certainly not satisfied.

hon.

the Attorney-General and the Gov­ ernment not to force this change in the law.

Member said, at the discretion of the Court for malicious desertio Dr. GONSALVES: I am, not of the support s raised but I heartily to clause 9 (b) by the Demerara and legal profession, the objection hon.
Member for Eastern Member the hon.

the Seventh of my actual experienc and because e in of the· obtaining respect evid­ so.

It ence.

I know that to be actually may not be rife in this Colony because it is a small community, of fictitious but in large coun- Nominated Mr. PETERS: The hon.

the Attorney­ to having but I must confess of this Bill.

Whether my posi­ General must be commended ,for his.
e attempt shall I say, very commendabl to seek to preserve the sanctity of the and to bond in our community marriage ·of family life 'in underpin the, stabilitjY1 our Colony, rather grave doubts as to whet:qer this is the wisest means to bring about the by the pre­ end that seems to be desired sentation or not it is for this tion tis invidious to say, but I stand astride the Council I believe Law and the Gospel (laughter).
•' it is my good fortune to have united couples for the past 33 years, and I am rather interested e to the case of Matthews v. Matthews, .. because in looking that I was one of the counsel it.

I wa3 counsel for the respond­ ent, so that in speaking do so with some measure of authority and with a measure of pardonabl Under-pinning riage tie in our Colony is more a ques­ than a matter tion of sanctified of mere lnw.
We are attempting, merely by changing the learned thTOugh that case will discover Attorney-General to have heard referenc the law of our Colony, to the stability on this Bill I can reasoning e pride.

of the mar­ engaged in 1,075 Matrimonial Causes LEGISLAT1VE CouNcit.

(Amdt.)

Bill.
(Amdt.)

Bill.

1,076 bond, but it is tighten up the marriage that what we need my considered opinion Court Guiana is a Matrimonial in British where grave matrimonial may problems be gone into, and wise reasoning on the part of the person ajudicating might pre­ vail.

I may be pardoned for ref erring to There have been in which one spouse or my own experience.
many instances the other whom I had united in holy wedlock may have had good cause to be dissatisfied with the other party and have thought it wise to come to me.

After a serious heart-to-heart have more often than not gone away and the thought of very much satisfied, breaking in the forgotten long run.

up their home talk the parties our ·provide I am afraid that we are training even as' and easier in another.
guns in the wrong direction, regards making our divorce law harder in one respect What we need is a Court of Matrimonial Affairs which would certainly some prospect e reduc­ of a considerabl tion in the number of divorce cases.

This does not improve the Bill: in my opinion, it as it exists today, because situation seems to blow hot and cold at one and the sam� time.
It says in effect should be no chance of a person obtaining a decree nisi under three years, while at the same time it reduces !Which a de-cree absolute.

from six ·months to six weeks.

In other words what is now easy at the beginning is no:w sought to be made harder, and what is now hard at the end is now sought to be made ea·.s:,ier.
the period within can be granted, that there against to apply for a England, as a result to say that· if a "incurable" the person is "incurably it:elf husband or a wife has been unfortunate enough to lose his or her mind, the other spouse should be entitled decree nisi after the lapse of five years.

The Bill refers to a person being "incur­ ably of unsound mind" but I think too long a bow is being drawn on this ques­ tion.

Nothing is said as to who is to declare that of unsound mind".
We know of many in­ stances where doctors have pronounced patients while others have been able to find a cure.

What would be.

if a person who has been the position declared of unsound mind" "incurably recovers his or her equilibrum of a counter shock, as has happened in many cases?

for 8 or 10 years and to a mental hospital let us say by may be restored may be Divine act.
What an injustice on such a man who comes out to inflicted find that his wife has divorced him and has become the wife of another man, and his the children of another home?

children It 1is a very ,s.erious contemplate.

am not going to allow myself to be pulled s lead.

We into following on a great hardship would be inflicting husband and treating him as though he had r,i.o right to become ill.
I say that the and in the light of the Bill is untimely, operation Colony I would say that we have to go a long way to find any good caus,e to have it improved to support of the divorce law in this A person may be confined upon.

I am not prepared when I This is orte occasion ; tate of affairs fo Great Britain' to sanity, the Bill.

merely on the ground of cruelty.

Paragraph as a ground for divorce.

(.c) of clause 2 refers.


to cruelty I can not but view with some measure nf mental reservation of a th� granting divorce Even in our law dealing with the main­ tenance of a wife by her husband aggra­ vated cruelty must be proved.

Mere cruelty is not enough, because we would have all sorts of things advanced b;y: a touchy wife or husband.
Then again I do not think we can persuade Guiana has grown up so adult as to measure that British ourselves The in this Colony, despite the that on many occa­ given perhaps in The ATTORNEY-GENERAL: last hon.
speaker seems to have been engaged in a conflict the with himself, ultimate result of which is that he does not as a lawyer see any reason for a change in the divorce law which at pre­ sent obtains fact that he realizes sions his timely advice, another form cf service, means of restoring tions among people, people.
Jeration ing regard to the conditions this Colony, and having regard comment made by one who undoubtedly experienc had considerable proper marital rela­ young The point really for the consi­ of this Council is whether, hav­ prevailing in to the particularly has been the e of the ways 1,077 Matrimonial Causes 16 NOVEMBER, 1950.

(Amdt.)

Bill.
(Amdt.)

Bill.

1,078 of the people of the Colony and the litiga­ tion that came before the Courts over c1 long period of years (he was engaged in as the> the case of Matthews v. Matthews leader of the last hon.

speaker) and with of experience he made a that background from the Bench that the pronouncement divorce law of this Colony is too easy and requires up.

I refer, of course, to the late Mr. Justice tightening Luckhoo.
In the case of Matthews v. Matthews Verity, he gave but he had to administer of the law as Later, in 1946, Judge, Mr. Justice the view that there should be along the lines, in this Colony.

Luckhoo made the statement the pre3iding expressed a fixed period, the law as he found it, therefore his decision it obtained Mr. Justice I have referred in the Press.

I would point out to hon.


Members that the Committee appointed sider the procedure in matrjmonfal causes, made these introductory paragraph which was to con­ by the Lord Chancellor 4 of its final report: to which was published observations in importance our enquiry had that the pre­ "We have throughout in mind the principle servation of the marriage tie is -0f the highest in the interest of society.

The unity of the family is so imoortant should -be attempted where there is the prospect cess."
of suc­ in every case deavour to bring people together, word in season may be of considerable when benefit they are young and are very prone to ezaggerate and go off at a tangent.

their grievances to those parties, particularly and a their relationship is only an attempt That being so, when the question is from that point of view it temperament, that they drift apart to adjust themselves each other.
They do not that it is a sort o-f and that they app1'oached will be se n that this to give the parties an opportunity to the psoition, reconsider to ea.ch other, and perhaps to adjust them­ selve.

:; as time goes on.

I am sure it is the of hon.

Members that it is the experience early years, when .
th'= parties have not to each yet learned other's and pull against for some time realize give-and-tak e business, must make allowance one for the other before they take such extreme steps as to have a separation, going their own way and finally ending up in the divorce If we consider of an opportunity suggest prop2r approach.

fence at the top than an ambulance bottom.


a reasonable tion, and when the Court has gone into the whole matter and finally decides grant a decree nisi, when the decree nisi is pronounced, rather than have them waiting for six months, a period of six time for the decree weeks is sufficlent absolute That is the posi­ tion which this Bill seeks to present to hon.

Members.

to hon.
Members.

to hon.

Members that that is the It is better to have a at the The idea is to give married people it from the point of view opportunity to be granted.

court.

to for reconciliation, I I would suggest to hon.

Members , but that of our society.

or a Court to which the hon.

to provide an that that is the basis from which a ques­ tion of this nature must be approached.
It is not a case of having the Roman­ Dutch Law as our background we must have regard to the fundamental That basis and structure being so every attempt must be made, whether by way of legislation Matrimonial Member has referred, opportunity the parties.

has suggested and c,old at the same time, I would point out to hon.
Members that that is not the case, because on analysis seen that what is suggested the grave step is taken to present a peti­ tion for divorce a time-limit should be imposed so as to enable the parties to come together always well between for reconciliation Although the hon.

Member that the Bill is blowing hot .if possible intentioned .

There are­ it will be clearly is tha� before people who en- The hon.
Member for Eastern has pointed Deme- " rara (Mr. Debidin) out that our' divorce law has a Roman-Dutch back­ ground.

Of course it has, but the effect of sedion 2 of the Matrimonial Causes st Ordinance hen.

Member referred, done before under· the Roman-Dutch we are doing now under the English Common ,Law.
The section referred to : states " ...... , Chapter 143, io which the is that what was Law and that jurisdiction shall be exercised in as far as possible the same mann'er with the same principles as jurisdictio exercised and Admiralty n in those matters is, by the Probate Divorce and in accordance and rules of the High Division that reconciliation for reconcilia­ 1,079 Matrimonial Causes LEGISLATIVE sub­ Court ·of Justice in England, j-ect to any rules of court made under this Ordinance Court of Judicature amending Ordinance, this Ordinance or any # Ordinance, in called "the rules."
or the Supreme hereafter COUNCIL.

(Amdt .. ) BiH.

1,080 tion between the parties before the expiration of the said three years.

(3)Nothing in this: section deemed· to prohibit a petition have occurred three years from the, date of marriage.

based upon matters which before the expiration the presentation of " shall be of I emphasize and practice he po-sed the question .. No,w as Member is that part of the section to point out to hon.
Members that it is not the case of trying today to follow English procedure far as the hon.

Nominated concerned, whether this clause has been introduced merely it has.

been .introduced be,caus·e England ?

It was introduced in England by a private the pcsition was in an effort to stop easy divorce a Bill was.

introduced by Mr. A. P. Herbert, as.

he then was tn 1937.

At the beginning of the English that a divorce petition presentea Section Member because he realized as r·egards.
1 (1) of the Act of 1937 provides : "I.-(1) No petition divorce, and it shall not be that in for divorce Act it :provided until three year's.

after marriage.
de­ to the High Court three years have passed or of exceptional on the part of the respondent, shall be presented unless at the date of the presentation of i.he petition since the date of the marriage: Provided that a judge of the High Court may, upon application being with rules made to him in accordance of court, allow a petition to be pre­ sented before three years have pa:-;sed on the ground that the case is one of exceptional hardship suffered by the petitioner pravity but if it appears to the court at the that the peti­ hearing of the petition the tioner obtained leave to present petition or concealment the court may, if it pronounces to the condi­ cree nisi, do so subject tion that no application to make the shall be made until decree absolute after the expiration of three years from the date of the marriage, may dismiss,.
the petition, judice to any petition brought after the ·expiration said three year.

:; upon the same, or as those substantiall t of the petition so pr·oved in s,up;por dismi:s:3ed.

or pre­ which may be of the y the same, facts.

of the nature of the case, witihout a de­ by any misrepresentation marriage.

That was done for the reason that a little s.o that they' more reason, each other better.

And n of young people are a_pt to go off at a tangent and pull a.way from each other.

This.
This.

was, to give them a time-limit during whid1 they could cool their tempers and collect may understand that w.as in so far as the presentatio the petition - three years having passed since the date of ·marriage.

What we are doing here in this, clause is.

saying that so far a.:; dissolution is: concerned in addition to that you have the three years.

period.

Some people may have .a quarriel and on impulse one goes.

off and spends.

time away.

Immediately after that the wife or hus­ band goes.


down to see her or his lawyer and ask for -a petition lution.

is filed.

That is in general terms what emerges from these quick and impulsive circum·s.tances.

fe:w months.

to hon.

Member's I suggest sseks to provide what I am sure is, the.

desire tha t the fa bric of society tion of the structur, kept as secur,e as possible.

and the found a• should be ·of every Member of this Council A few weeks, !
)ass, and the case The result is, you have a .after a long list of divorces.

for· divorce e of society that this.

Bill or disso­ - Question, put and agreed to.

· Bill r·ead a second time.

The Council resolved into Com­ its.elf mittee to consider the Bill claus,e by clause.

Council in Committee.


Clause 2 -Petition for dissolutio n of (2)In determining any application for leave to present under this section of three before the expiration a petition years from the date of the marriage, the judge shaU have regrad to the inter­ ests of any children and to the question reasonabl of the marriage whether there is e probability of a reconcilia- Mr. DEBIDIN: I beg to move an 9 (1) to read as celebratio amendment to section n of the "has, sinceAhe follows.
: OT has, been committed adultery marr'iage guilty of malicious des•ertion w.ith -or without adultery".

In other words, I ask that the following words.

be added after 1,081 Matrimonial Causes 16 NovEMBERJ 1950.

(Amdt.)

Bill.

1,082 the word "adulter-y" guilty of malicious without adultery".

- "or has been as to whether he should grant the divorce desertio n with or or not, As I said before and I repeat again, The CHAIRI\:'IAN: The hon.

Member wants to restore section.


original the wordin� as in the Mr·.

DEBIDIN: That .is the position.

as.

to said, That is the over and over is.

the that the very decision for reconciliation.

When we come to (b) I shall move the deletion of the entire clause .In moving· this amendment I can hardly add any­ thing more to 1what has been already point the except to say that the biggest hon.
the Attorney-General se-ems to have been eJDphasizing opportunity only point which he has been stressing when it But that point disappears greatly.

is remembered which is the bible or the foundation for of a petition for the presentation on the ground of dissolution of marriage malicious desertion demands that every attempt must be made at reconciliation, and a Judge of the Supreme Court zeal­ ously regards that and examines.

that aspect of every petition.


Only two weeks in three unde­ ago I was the Solicitor fended divorce matters and.

the Judge carefully examined the petitioners the efforts made for reconciliation.

d ev,i­ Although the .

matter is undefende dence still has to be led on that.

In other words, the argument of the hon.

the does not seem to Attorney-General include or· take in the human relationship at all, I respectfully to suggest immediately does not always happen like that.
If we are to assume that the two parties each -other when they took the marriage vows, we must give them credit for also themselves conducting reasonabl They will not rashly try to bring about an end to their own vo:ws, but will make every attempt to see that everything goes every on well and will give themselves opportunity and make their marriage when a petiton Therefore is presented efforts for reconciliation· already.
that and much reliance on him in the exercise of his conscience t!h.eir marriage life a success.

for dissolµtion The Judge is going to examine has to be placed we are to assume that all have been made if he seems is presented e people are expected after the first quarrel.

that the petition to continue in a manner as submit, loved to do.
It from the legal law, about which or the Judges and, I feel, it we have had a state of law which is in full practice in South Africa and Ceylon today, the Roman-Dutch we have had no complaint profession will be too drastic a change as con­ I do commend the very effec­ templated.

tive speech of the hon.

the Seventh Nominated made reference relationship practice in England and the practice here and urged that unless we are fully satis­ fied that we are justified change.
Dutch law should certainly I ask that the amendment be accorded the approval of this Council.

Member (Mr. Luckhoo) who to, the point as to, the between the in making a We feel that.

this relic of Roman­ or comparison be preserved.

Mr. SMELL.IE: If the hon.

Member for Eastern Demerara is moving the amendment section stand, I beg to second that.
that the words of the original The ATTORNEY-GENERAL: With s, which is, although of malicious d the principle the Judge deals underlying the whole he goes desertion, regard to the case of Matthews and e was made Matthews to which referenc by s-:veral hon.

Members in which the Judge -enunciate have been used by the Court as a guide, my comment, as I have told hon.

Mem­ bers already, with th� principles question on to deal with the point of desirability of having a fixed period.

to hon.
to hon.

Members thiSI was a considered judgment.

The case was "heard in November and December, 1936, and judgment was delivered in April, 1937.
Mr. Justice Verity gave very full consider·ation with the principle3 the follo,wing to this matter; after dealing observations of the law he made I would suggest :- as in the case of a separation, ''It may be desirable-that the law should prescribe, some for judicial pet.ition period beyond which alone can such as the present a petition not with the object of substituting sta1.utory desertio sertion period within which the erring spouse might have time for consideration d spouse -have oppor­ and the aggrieve tunity for seeking by other means but for securing a reasonable n for malicious de­ be brought, 1,083 Matrimonial Causes LEGISLATIVE COUNCIL.
(A mdt.)

Bill.

1,084 just reconciliation.

which in my opinion might well re­ ceive consideration quarters."

This is a view in the proper such repudiation will."

is against his or her In other words, those are the two conditions which before the petition �oes on further to say: is presented.
But he must be coll).plied with it is not required should to secure either "While, therefore, by the laws of this Colony that there should be any defined period of deser­ tion nor that le�al proceedings have been instituted spouse or the return of the deserting refusal of return in obedience to an · order of the Court, yet in many cases the element of time will be one for consideration or not the desertion of final repudiation."
is _in fact evidence in ascertaining whether In other words, in determining whether In other words, having dealt with the to which of the Roman-Dutch should have the fullest As I suggest to you, this law as it stood, in his opinion the ques­ tion of fixing a specific period which would enable an erring s:pouse to have a period for reconciliation consideration.

is the proper course.


It is ·not because of the background law or that the Court has to give con­ to the circumstances sideration is made, it is the parties them­ reference selves who settle their differences.

Hon.

Members.

are a.ware of the· fact that the husband and wife them­ selves :ee reason and come off the fence.

Sometimes their pride and their are ,somewhat affected and sensibilities they sit on the fence, ,but after a while reason asserts its elf and they come together.
I am sure it is known to hon.

Members 1that after a lapse of time par­ ties who might be heading for the Divorce Court, through good sense and advice have come together.

I ask hon.

Members befor:e going into, a to long discussion aspect what I suggest is a very important of the ultimate o,bjective-reconciliation, living together properly and - the parties the domestic life maintained and pre­ served.
to give consideration of if apart from is malicious, that there has been final determination ·determination of the marriaige the desertion the erring spouse's the marriage state there has been a separation for a year or two or in some­ cases well over three years, the Court would say "In view that there has been also a separation: of so many years or months it seems clear that there is sup­ port to the allegation a definite state.
That is the law which has been accepted since Chief Justice Verity gave that judgment, and that ,is the law p,rac­ tised today with very great convehience and satisfaction in the Colony.

W e all know Chief Justice Verity to be a very of the strong religionist Y.M.C.A., and we quite appreciate the clarity of his1 judgment.

He expressed the desire that there may be some mea­ sure, but he nevertheless.

in the law, stipulate it can be exercised.


Court of Law is riow exercismg ent on the Roman-Dutch havin� the feel sure that the profession, of the community at heart and interest knowing what are the principles oif law having studied the English practice and seen what the practice is, as a whole is against any innovation desertion and how That is what the so far as malicious and Pres.ident , because it is not d a condition is concerned law practice.
I depend­ The CHAIRMAN: In the case of j udi­ cial separation the· desertion, be two years or upwards.

on the ground of desertior1, as the law stands, must Mr. DEBIDIN: J:udicial separation Mr. DEBIDIN: It is only well, lest the minds of Members be prejudiced what has been said by Chief Justice Verity, that I refer to the following passages of his judgment which s·eem the position to indicate - vals of time they were apart will be taken where the inter- by , tion is not desertion into consideration.
In other words, deser- simplex in this case or desertion without a cause, but if it lasts for three years it is sufficient.

Mali­ cious desertion and this passage follows what the hon.
the Attorney General has just read from his, judgment : has been defined by him to be the fundamental of the divorce laws of this with it is in accordance "Nevertheless what I conclude princip.les Colony that the respondent should be shown by evidence of his or her con­ duct definitely to have reached a final determination the to repudiate obligations of the marriage state, a�d also that it should be shown by evi­ dence of the p.etitioner's conduct that 1,085 MatrimoniJal Causes 16 NOVEMBER, 1950.

(Amdt.)
(Amdt.)

Bill.

1,086 or neglect as the ,n separation still continues That is the practice are very few c.ases As a matter of and the questio comes in.

In England as go to the Magistrates' e of her­ on the ground of deser­ are one or two other grounds, for of the prac-� te for main­ every day in 9 has some very grave consequences marriage of the children well as' here there of judicial separation.
fact-I think other Members can bear me out - there is hardly any petition judicial because tice of going to the Magistra tenance.

the Magistrates' Court.

Under Chapter of our laws we have a procedur e by which a wife - it seems to give the wife only that privilege-can Court and ask for maintenanc self and children tion.

There such as cruelty wife and children.


the Attorney-General knows, the reasons of work in Geo.rgetown is the large num_ ber of these cases where all the facts have to be gone into just the same as in the Divorce they take in determining monial state of affairs.

Very often the tells them to try and make Magistrate up, their differences.

After an order has been made, or not made, if the spouse dis­ cov,ers marriage I pre.s,ente am glad you have raised this p0iint.

H is important.
H is important.

They do not worry to go ' to the Supreme Court on the ground of of the simple practice desertion because Court.

in the Magistrates' Court.

That is the first step their matri­ to maintain We know, and the hon.

d there is ample safeguard.


why there is a clustering that there is no hope in the that one of up and a petitio n for divorce is the The CHAIRMAN: What I was won­ dering was, w'hy in the case of judicial matter of divorce you have a two years period before you can apply, but in , separation of desertion the much more serious you need not wait for any period at all?

With a judicial make up their differences divorce.

dure than divorce.

having that provision judicial What is the point in in the case of ?
separation separation the parties can It is far more simple a proce­ without a the parties, years.

Malicious desertion is where there tremend­ between is hostility ous fighting and one says he or she never loved the other and they would never go back to live together.

Both agree to that an,d the Court would examine that.

That deser­ desertion is malicious tion simplicita.

as against are good, but there is The CHAIRMAN: Hon.

Members must make up ther minds on this clause.


I think the objects something pose it is this long period of three years which Members so strongly object that is so, it can be reduced Members consider I sup­ to be said on both sides.

reasonable.

to what hon.

to.

If Mr. LEE: If I may say something, I think what the hon.

Member for Eastern Demerara is behind it.

said is that the whole profession The CHAIRMAN: We are not making law because The provision .

parties the profession it.


is against is there for' the interested has worked Ordinance because under the for judicial Mr. LEE: The provision from 1916 until now.

The public under­ stands it, and to change it now there will be hardship, Summary Jurisdiction is quick provision Even now the Amendment 1946 gives the Magistrate make a temporary after separation parties together.
pelled to support during those three months on a Magis-, trate's order for three months in order to bring the The husband is com­ the wife and children Ordinanc e of the right to order.

the!r€ separation.

The CHAIRMAN: Members must decide it.

It has been well argued on both ,; sides.

The original 9 (1) (a) in the Bill put, and the Committee - and voted as follows: paragraph divided Mr. DEB[DIN1: Desertion for judi­ - simplicita is desertion cial separation desertio n without any good cause.
For a wife goes to her mother to instance, make a baby and does not return for two For-Messrs. Farnum, Roth, the Attorney-General tary-4.

and the Colonial Secre­ Against-Messrs .

Luckhoo, Phang, Peters, Morrish, Kendall, Smellie, Lee, Dr. Jagan, Dr. Gonsalves, Carter, Debidin, 1,087 Matrimonial Causes.

LEGISLATIVE COUNCIL.

(Amdt.)

Bill.

1,088 Dr. Nicholson tary and Treasurer-13 and the Financial Secre­ .

Latey on Divorce this is what is said on the question of legal cruelty: Motion lost.
as amended to read.

The paragraph "(a) has since the celebration marriage or malicious out adultery; with or with­ desertion or" put, and agreed to.

has been guilty of adultery of the The ATTORNEY-GENERAL: I would suggest that the words be inserted after the word "marriage".

Piaragraph Paragraph (a) as.

amended agreed to.

9 (1) (b) - Mr. DEBIDIN: I move the deletion of the entire paragraph 9 (1) (b).

Agreed to.

Paragraph 9 (1) (c) renumbered 9 (1) (b).


The Committee 9 (1) (d) renumbered voted: divided 9 (1) (c) and on paragraph For-Messrs. Luckhoo, Morrish1 Car­ Phang, Kendall, Debidin, ter, .Smellie, Farnum, Roth, Lee, Drs.

Jagan.

Gonsalves and Nicholson, and Treasurer, the Colonial the Financial the Attorney-General Secretary and Secret,ary-16.

Against - Mr. Peters - 1. of fact.


or not there has been an ""Whether ad of cruelty in the sense of the matrimonial law is a question be­ difference of the Eccle­ Courts and the post-1857 Courts of legal cruelty There ,is no essential tween the definitions siastical matrimonial in marital sense.
The authorities were fully considered of Appeal and the House of Lords in Russell v. Russell (s), and the defini­ tion now prevailing Court is as follows: in the Divorce by the Court - Conduct of such a character as to to life, limb or or mental or a� to have caused danger health, bodily, give rise to a reasonable' apprehen­ sion of such danger (t).
Lord Stowell's proposition in Evans v.Evans (u) was approved by the House of Lords, and may be put thus: before the Court can find a husband guilty of legal cruelty towards his wife, it is necessary has either inflicted upon her, or has so conducted him­ self towards her as to render future coh�bitation .

more or less dangerous to hfe, or hmb, or mental or bodily health.
bodily injury to show that he to avoid any defini­ but he did add: He was careful �/on of cruelty, T�e causes must be grave and and such as to show an weighty, absolute of married _lif� can be _discharged."

�ut the maJonty of their Lordships m R;ussel v. Russell (1897) (supra) declined set out above.

to go beyond the definition impossibility that the duties The converse applies where the husband charges the wife with taking jntoi account the rela­ cruelty tive physical a woman."
of a man and strength Mr. PETERS: I should have called to something before the division attention was taken.

The CHAIRMAN-: The hon.

Member cannot do it now but will have an oppor­ tunity to do s.o on the third reading.

The Council resumeq.

The PRESIDENT: Is the hon.

Member satified with the explanation?

Mr. PETERS: I desire to call the Mr. PETERS: Yes, sir.

cruelty".
cruelty".

Ordinance, Chapter 9, reference as referred to in this Bill, should of the Council to the fact that attention in the Summary Jurisdiction (Magis­ is trates) made to "persistent cruelty, also be persistent when we are making cruelty grounds for divorce degree of cruelty so as to make it easier for the Court to ..decide the issue, to be presented.

for petitions I think that one of the we should state the cruelty.
I :£eel that and also The ATTORNEY-GENERAL: I beg to move that the Bill be now read a third time and passed.

Dr. NICHOLSON seconded.

put, and agreed to.

Question Bill read a third time and passed.

The ATTORNEY-GENERAL: In The Council the following day at 2 p.m. was then adjourned until