[1942] EACA 23

### BEFORE LUCIE-SMITH. J.

### WILLIAM KYRLE FREDERICK MORRICE. Petitioner

### $\mathbf{v}$

## MARY MARJORY NEWMAN MORRICE. Respondent

#### $and$

# NEIL COLLIN LELAND, Co-Respondent

### Divorce Cause No. 4 of 1942

Divorce—Dissolution of marriage—Decree nisi—Decree absolute—Abridgement of time—Application for—"Special Order"—General principles—Ill health

of applicant-Interest of child-Object of six months interval-King's Proctor—Functions of, in Kenva:

Held (19-10-42).—That applicant had shown cause for granting of "Special Order".

Kaplan for Petitioner.

King's Proctor in person.

RULING.—This is an application by the petitioner in divorce proceedings in which he has already obtained a *decree nisi* that the time for making such decree absolute be abridged.

By section 14 (1) of the Matrimonial Causes Ordinance "every decree for a divorce or for nullity of marriage shall, in the first instance, be a *decree nisi* not to be made absolute until after the expiration of six months after the pronouncing thereof, unless the Court by general or special order from time to time fixes a shorter time."

No general order has been made under this section and the present applicant asks for a special order. In accordance with the English practice the King's Proctor was served with this application and appeared. He agreed generally that his consent if necessary in England was not necessary in this country. The King's Proctor has put forward no objection to the application.

The applicant has filed an affidavit in support of his application and exhibited two medical certificates.

The applicant has been invalided out of the Army on pension.

The two certificates of the applicant's medical attendant make it clear that the applicant is a sick man and that it may be necessary for him to proceed out of the Colony for treatment by specialists in his disease.

The applicant has a son aged 12 years of whom the Court gave the petitioner custody in the divorce proceedings. This son according to the medical certificate requires the supervision and care of a woman while the same certificate states that it is in the best interests of the applicant that he should marry as soon as possible in order that he may have the care and attention, especially as regards his diet, which his physical condition demands. Finally the applicant states that there is a lady who is willing to marry him and to accept the responsibility of looking after and becoming the guardian of his son in the event

of his, the applicant's death. Supplementary affidavits are being filed by the applicant and the lady he wishes to marry. This lady according to the affidavit to be filed is a qualified nurse and a specialist in the treatment of tuberculosis from which the applicant is thought to be suffering.

In days gone by the Court was very chary in abridging the time between *decree inisi* and absolute, in the absence of special circumstances, see *Skelton v*. *Skelton* (1869) L. J. (P. C.) 34 M., falsely called B. $\nu$ . B. (1872) 3 P. D. 200, where the Judge Ordinary said "It must be taken and understood that the circumthe Judge Ordinary sale it must be taken and account to exercise its discretion,<br>stances must be very peculiar to authorize the Court to exercise its discretion, and reduce the time for the decree absolute to a less period than six months. Rippingall v. Rippingall (1883) 48 L. T. R. 126 and P. v. P. (1927) 44 T. L. R. $114.$

It is unfortunate that the general proposition set out in the last paragraph of Latey on p. 327 is not in my edition $(12th)$ supported by authorities.

I have made careful search of the various law reports available since 1927 the date of P. $\nu$ . P. (*supra*) but have been unable to find any reported cases. bearing on this subject. I did, however, find a case where a petitioner was allowed to apply for a decree absolute one month after obtaining his decree nisi, Osborn v. Osborn (1926) 70 Sol. Jo. 388, the report unfortunately is not available.

In the Kenya case of Edyé v. Edye D. C. 5/41 my brother Bartley granted an application for abridgment of time between decree nisi and absolute and $\Gamma$ would refer to his ruling and order therein.

In the case of Reeves v. Reeves (1939) 4 A. E. R. 375 it was held that. the object of the six months interval between the decree nisi and the decreeabsolute is to enable the King's Proctor to make inquiries as to the *bona fides* of the petitioner's case. It is not intended as a test of the morality of the petitioner.

I understand that the King's Proctor in Kenya functions only under section 32 of the Matrimonial Causes Ordinance and does not concern himself with inquiries as to *bona fides*.

In all the circumstances of this particular case I am of opinion that the Court should make a special order as requested.

Subject to the filing of the supplementary affidavits to which I have referred, I order that the petitioner be at liberty to apply for a decree absolute on or after the 24th October, 1942. There will be no order as to costs.