The history of the development of the grounds for divorce in New Zealand

Abstract

As is to be expected the history of the grounds of divorce in New Zealand has its roots elsewhere and so often does this 'pre-history' manifest itself is debates and legislation in New Zealand that it is necessary to give a brief background to the commencement of divorce controversy in New Zealand. From late in the twelfth century jurisdiction in matrimonial cases in England rested with the Church exclusively Rayden on divorce (10th ed. Jackson, Rowe, and Booth 1967) 1; Pollock and Maitland, History of English Law (2nd ed. 1968)ii,367. - a jurisdiction which had largely been arrogated much earlier. Pollock and Maitland op. cit. 366. Such cases were heard in the Ecclesiastical Courts and these were originally conducted by Church dignatories in person. Later the complexity of both the cases and the developing law necessitated the delegation of these powers to ecclesiastical lawyers. Although there is some slight evidence that until the reign of Edward I marriage could be terminated finally leaving a right to remarry, See speech by Oliver Samuel M.H.R. - (1888) 60 New Zealand Parliamentary Debates, 231, 233. after that time the only divorce obtainable was a divorce 'a mensa et there'. Even this form of divorce was available only as a 'sentence' after proven guilt of adultery, cruelty, or heresy and apostasy. This divorce is perhaps closer to the present degree of judicial separation than to a dissolution of marriage for, while it provided a final separation of the parties, it did not allow the parties to remarry at any time in the future.