202432-1933-Supplementary-Draft-Bills--Divorce-Amendment-Volunteer — Page 2

485

Objects and Reasons.

1. Sections 2 and 4 of this Ordinance carry out the instructions of the Secretary of State, conveyed in his despatch No. 115 of the 7th February, 1933, intimating that His Majesty will not be advised to exercise his power of disallowance in respect of the Divorce Ordinance, 1932.

2. Section 2 substitutes a new sub-section for section 4 (3) of the principal Ordinance in which the words "where both the parties to the marriage were in the Colony at the time of the commencement of proceedings" are replaced by the words "where both the parties to the marriage had their usual place of residence in the Colony at the time of the commence- ment of proceedings".

3. The Secretary of State points out that to require merely the presence of both parties to the marriage in the Colony at the commencement of the proceedings is open to some objection on the ground that it might lead to abuse of the jurisdiction by a mere temporary presence. Although such abuse could be prevented by the court under its existing powers, nevertheless it seems undesirable that the Ordinance should contain a jurisdiction wider than admittedly it would be proper for the court to exercise. Moreover the provision in the principal Ordinance as passed would not seem to cover a case where both parties were ordinarily resident in the Colony and one of them had deserted the other and left the Colony.

4. The amendment makes it clear that the parties to the marriage must have their usual place of residence in the Colony at the time of the commencement of proceedings for judicial separation or for the restitution of conjugal rights.

5. Section 4 also carries out the suggestion in the same despatch that sub-section (2) of section 38 of the principal Ordinance should be omitted. That sub-section provided that the court may dispense with service out of jurisdiction of any petition under the Ordinance, or allow service by notice pub- lished in the Gazette, if it seems necessary or expedient to do so.

6. The Secretary of State points out that there is ample power for substituted service and that it is inconceivable that in matters appertaining to divorce the court would ever think it right to dispense with service altogether. The sub-section is therefore repealed.

7. Section 3 substitutes а redrafted sub-section for section 17 (3) of the principal Ordinance.

The latter was copied from section 17 (3) of the Straits Settlements Ordinance No. 123 and provided that a decree of judicial separation shall have the effect of a divorce a mensa et thoro under the existing law and such other legal effect as thereinafter mentioned. There being no existing law in the Colony providing for divorce a mensa et thoro it has been considered necessary to redraft the sub-section to give it the effect obviously intended.

8. Section 5 repeals the forms of citation contained in the Schedule to the principal Ordinance the use of which was authorised by section 36. Power is given by section 48 (2)