THE STATE AND LEAVING: OBSTACLES AND PATHWAYS
VINDICTIVE LITIGATION
The contradictory nature of discourses is demonstrated by the opportunities for spouses to continue their abuse through what was known as “vindictive litigation”.
These were unevenly available to men and women, and men’s privileged economic
and social power made them more able to exploit them. The law allowed for appeal of court orders and for the filing and re-filing of applications for variation of custody and maintenance conditions. Maintenance orders in particular were re-contested.75
Applications to vary custody orders could be used to continue harassment. In one case where a mother faced continual court proceedings for custody of her daughters, the
Dunedin branch of the SPHF described the husband as ‘stuck to his principles to the point of obsession’. He had used every solicitor, political party and legal association
possible in pursuit of overturning the custody order.76 Abusive husbands could also disrupt court processes through non-cooperation. One woman’s separation order took almost two years because her husband would not turn up in court.77 This meant she was unable to gain protection from the court during this time.78
72 Sim, ‘The Matrimonial Proceedings Act 1963’, p.102.
73For example, a case where the husband was granted a divorce despite his wife’s opposition and his matrimonial ‘guilt’, Newell v Newell 1965, NZLR 1965, pp.738-9.
74 Ibid., pp.738-9.
75 Observation of domestic proceedings files in Christchurch District court, CAHS, CH927, 1970s. 76
HFS records, Dunedin branch, Mrs K., 1979, Client case files 1970-1985, AG-647-165R, HL, Dunedin.
77 Domestic proceedings files, Christchurch District Court, CAHS, CH927, box 6, case 128, 1970,
ANZ, Christchurch.
78Without a separation order, the wife lacked the court’s protection from non
The law provided two specific ways for spouses to challenge the other party who had left the marriage. The first was to petition for divorce on the grounds of adultery and to sue for damages against the lover. After the 1963 Matrimonial Proceedings Act, women also could take this action. G v G and Another 1966 was the first defended case in which a wife sought damages for adultery against a third party. She was
awarded ₤1500.79
However, the inferior social and financial power of women made it less possible for women to do this. The second remedy was a tort of enticement and harbouring. This involved suing a third party for enticing the wife away or harbouring
her against the husband’s will. Adultery was not necessary. For a successful action, the husband had to prove that his wife would not have left but for the interference of the defendant. Reasonable cause to leave, such as cruelty, invalidated the action.
Compensation was for the loss of a wife’s companionship and domestic services.80
In Spencer v Relph 1969, in which a husband brought a case of harbouring and
enticement against his wife’s new partner, the Court of Appeal overturned a finding in
the Supreme Court that the wife had reasonable cause to leave. It found the wife’s complaints of being belittled and humiliated, and being unaided in raising 12 children,
as constituting ‘normal wear and tear’, a construction exemplifying low expectations
of wifehood and marriage. However, the Court of Appeal did not rule in favour of the husband because it found the husband had already lost his wife, so harbouring was not the cause.81 Although this outcome favoured the wife, the legal process also cost her. She faced two hearings, one in the Supreme Court and one in the Court of Appeal. The process was a long one in which she was subjected to emotional, physical and financial stress, not least of which may have been the dismissal of her experience as
‘normal wear and tear’. But other women could fare worse: their stressful proceedings had negative outcomes.
Spencer v Relph 1968 was thought to be the first reported case of a tort of this kind in
New Zealand. These actions were rare because they were not considered ‘in keeping with the times’.82
However, although the action was viewed as a remnant from the
79
G v G and Another 1966, NZLR 1967, pp.72, 75.
80 Supreme Court, Spencer v Relph 1968, NZLR, 1969, pp. 237-8. 81 Court of Appeal, Spencer v Relph 1969, NZLR 1969, pp.727, 734. 82 Supreme Court, Spencer v Relph 1968, NZLR 1969, pp.237-8.
time when a wife was considered the property of the husband, the law also recognized it as valid because it was still on the statute books.83 From 1968 there was a short revival of this action, which can be interpreted as a backlash against the rising status of married women and their capacity to leave marriages. However, these actions were short-lived and repealed by the 1975 Domestic Actions Act, which indicated a
reshaping of the moral order that made matrimonial fault less significant.
HOUSING
Because women had limited opportunity to retain family homes, having somewhere to
go was a prerequisite to leaving a violent marriage. Discourses of “proper” families
were embedded in state housing policy that favoured the nuclear family model and the detached family house.84 This is explicit in the capitalization of the family benefit scheme in 1958, which enabled families to cash in future family benefit payments in order to buy a home. This scheme had contradictory effects for women. While it did enable income-stable families to own their own homes and gave some women property rights (it would be a joint family home), the husband did not necessarily make good the benefit that was diverted to mortgage payments. This could increase hardship for women who had little control over family finances. Solo mothers who lacked a working wage were excluded from the scheme, but as it was also hoped that good housing would encourage moral practices, some de facto families were admitted to it.85 An unintended consequence of this was to give de facto relationships some legitimacy.
Policy based on a male breadwinner family made it difficult for separated mothers to find and maintain independent housing. Suitable accommodation sometimes did not exist. There was little cheap rental accommodation available.86 Housing was the first
major issue tackled by the Citizens’ Advice Bureau on its establishment in Auckland
in 1970: one quarter of enquiries were about housing, especially rental
accommodation.87 Evictions were often the result of the loss of the breadwinner.88
83 Ibid.
84 Labrum, pp.198-9.
85 Margaret McClure, A Civilised Community. A History of Social Security in New Zealand 1898-1998,
Auckland: Auckland University Press, 1998, p.154.
86 Labrum, pp.198-9.
87 Ian Dougherty, For Your Information. A History of Citizens Advice Bureaux in New Zealand,
Palmerston North: Dunmore Press, 1998, pp.21-22.
88
Domestic proceedings files of the Christchurch District Court in 1970 are peppered with complaints of housing difficulties. One woman had to stay with friends before she eventually obtained a one-bedroom flat without a washing machine or fridge.89 Another stayed with her parents, but this was not suitable long-term. She subsequently returned to her husband until separating permanently eight years later.90
Housekeeping positions to single men were an option, but were risky. Unmarried
mothers’ experiences of sexual harassment in this situation are well documented.91
The Council for the Single Mother and Her Child advised women to avoid them.92
From the mid-1960s, solo parents emerged as a significant group of new tenants of state housing and by 1975 they constituted 27% of state tenants.93 However, the SPHF said in 1973 that the waiting list was long. An interim arrangement could last up to
two years and could mean ‘cramped and frustrating living with relations, high cost accommodation or sub-standard living with ill effects on children’.94 A Society for Research on Women survey indicated that many solo mothers experienced delays in allocation.95Truth related the experience of one deserted wife in 1961 who said she had consistently been refused state housing. Despite regular calls to the State
Advances Corporation, she had waited seven years without getting a flat; meanwhile her two children aged seven and ten were boarded out. The Corporation conceded that her application had been lodged three years before and that no flat had yet been allocated. The Allocation Committee was made up of independent unpaid citizens who decided on the merit of each case.96 What constituted merit was not explained, but the process allowed for the unlimited exercise of opaque morally charged
89 Domestic proceedings files, Christchurch District Court, CAHS, CH927, box 221, case 13, 1975,
ANZ, Christchurch.
90 Ibid., CAHS, CH927, box 1, case 23, 1970, ANZ, Christchurch.
91For example, the Society for Research on Women recorded some unmarried mothers’ experience of
sexual danger, SROW, The Unmarried Mother. Problems in Keeping Her Child, Lower Hutt: Format Publishers Ltd, 1970, p.17.
92 Council for the Single Mother and Her Child, Everything a Single Parent Needs to Know, 2nd ed.,
Auckland: Manurewa Printers, 1976, p.12.
93A. Trlin, ‘State Housing: Shelter and Welfare in Suburbia’, in A. Trlin, ed., Social Welfare and New
Zealand Society, Wellington: Methuen Publications Ltd, 1977, p.113.
94 HFS records, Dunedin branch, Minutes of Federation meeting in February 1973, Correspondence and
minutes, AG-647-96, HL, Dunedin.
95 Angela Sears, for the Christchurch branch of Society for Research on Women, Solo Mothers,
Christchurch: Argosty Press Ltd, 1975, p.15.
discourses. Women deemed “undeserving” might have found it more difficult to find
housing.
State housing was a significant support for women wishing to leave violent marriages because private rentals were more expensive and some landlords excluded solo parents who were seen as risky and often short of money.97 However, it was still difficult to meet state rental payments. One woman who lived with four children in a state flat had very little left over after paying rent to feed and clothe her family.98 It could be difficult for a woman on her own to get a state flat or house, as nobody could be sure of the rent. It could be deducted from her benefit, but benefits were barely adequate.99 Landlords were also less inclined to rent properties to those with children. The Society for Research on Women reported many solo mothers had problems finding landlords who would accept children.100 In the early 1970s the Wellington branch of the SPHF observed that rising costs had further disadvantaged ‘the deserted
wife, widow or separated parent’ by forcing a number of families to accept unsuitable
living conditions.101
State housing was even more significant for Maori women, who fared worse than Pakeha in the private rental market. One real estate agent said, ‘ninety percent of Wellington landlords specify no pets, no parties and no Maoris [sic] when they are
letting flats and houses’.102
Similarly, Truth reported that nine out of ten landlords in Auckland refused to have ‘coloured tenants’.103 Forbidding tenants to sublet or to
enter into partnership with anyone from a ‘coloured race’ was said to be ‘universal practice’.104
Voluntary groups provided some short-term emergency accommodation for women who left violent marriages. This was limited. The Salvation Army provided some
97 Trlin, p.115.
98‘Deserted Wives New Champion’,
Truth, 29 August 1961, p.18.
99 Ibid. 100 Sears, p.15.
101 HFS records, Wellington branch, 73rd Annual Report, MSX 3295, Alexander Turnbull Library
(ATL), Wellington.
102‘No Maoris Say Many Landlords’, Truth, 24 February 1965, p.3.
103‘Coloured Tenants Not Wanted in Auckland’, Truth, 4 October 1966, p.8.
104Reported in R.H. Thompson, ‘Race Relations, Social Welfare and Social Justice’, in A.D. Trlin, ed.,
emergency lodgings in the larger cities.105 But it was difficult to stay in such lodgings for a long period and women would eventually have to find somewhere else to go. Additionally, the lodgings were not suitable for long-term stays.106 Housing problems
formed a significant part of the SPHF’s caseload, but there was little it could do for
women aside from assisting them to find a place, such as writing letters to support
women’s applications for state rental properties.107
Women had the option of placing their children in foster care. The SPHF helped make temporary boarding arrangements for children. This could mean long separation periods for mothers and children. Records of the Christchurch branch in the 1950s suggest it was common practice for children to be boarded out. The Society was often called upon to find board for children of families deserted by one parent or to place them in already over-crowded children’s homes.108 Such work became increasingly more common.109The children cared for in private children’s homes were usually
from ‘broken or disturbed homes’. For instance in 1971 there were no orphans among the 120 children cared for by the Auckland Anglican Church’s social services.110
The thought of being separated from children might have been too difficult emotionally for some women to leave violent marriages and, if they did leave and were separated from their children, it also risked their losing custody.
The focus of state housing policy on the nuclear family model and its lack of
provision of emergency accommodation made it difficult for women wanting to leave oppressive marriages to survive. It also undermined their safety, because women who petitioned for legal remedies under matrimonial law were often forced to remain in the same house as their husbands. Separation files in the early 1970s in the
Christchurch District Court indicate that most women lived under the same roof as
105Winefride M. Dive, ‘The Society for the Protection of Home and Family’, NZSW, vol.6, no.1,
January 1970, p.11; interview with a captain in the Salvation Army, 8 March 2008.
106
The Society reported one client who said she could not stay in the home for a long time with the
children and had to move into her parents’ home, HFS records, Dunedin branch, letter, 2 September
1975, Client Correspondence 1975-1978, AG-647-40R, HL, Dunedin.
107 HFS records, Wellington branch, Annual Report for 1958, MSX 3294, ATL, Wellington; for
example, HFS records, Dunedin branch, letter, 2 September 1975, Client correspondence 1975-1978, AG-647-40R, HL, Dunedin.
108 HSF records, Christchurch branch, Annual Report 1953, Series A2, MB309, MBL, Christchurch. 109 HSF records, Christchurch branch, Annual Report 1955, Series A2, MB 309, MBL, Christchurch. 110K.D. MacRae, ‘The Failure of the New Zealand Marriage’, NZLJ
their husband for several months pending court action.111 Women had to anticipate threats to their safety when husbands received papers. When one husband received court papers he grabbed his wife and threatened he would murder her if she went through with it. The wife eventually proceeded with a successful application some 12 years later.112 The SPHF recognized the need for protection in this situation, but there is little acknowledgement of this in legal texts.113 Current knowledge considers the
time of a woman’s leaving as the most dangerous. Because of safety issues, having
nowhere to go might have blocked access to legal remedies to cruelty or violence.