SEPARATION AND MAINTENANCE ORDERS ORDINANCE

SEPARATION AND MAINTENANCE ORDERS ORDINANCE

CHAPTER 16.

SEPARATION AND MAINTENANCE ORDERS.

To make better provision in this Colony for the granting
by magistrates of separation and maintenance orders.

[6th December, 1935]

1. This Ordinance rnay be cited at the Separation and
Maintenance Orders Ordinance.

2. In this Ordinance-
'Christian marriage or its civil equivalent' has the same
meaning as in the Divorce Ordinance;
'habitual drunkard' and 'drug addict' mean a person who
is, by reason of habitual intemperate drinking of in-
toxicaling liquor, or habitual taking or using, except
upon and in accordance with medical advice, of opium,
or any dangerous drug within the meaning of the
Dangerous Drugs Ordinance, at times dangerous to
himself or herself or to others, or incapable of manag-
ing himself or herself, and his or her affairs.
'wife' and 'married woman' mean the wife of any man
any Christian marriage or its civil equivalent re-
cognized by the law of this Colony, and, where no such
marriage subsistsm include-
(a)the hit fat or tin fong spouse of any Chinese man,
married to him in accordance with the laws or
customs of China;
(b)any woman married to any man, not being Chinese,
by a non-Christian customary marriage, duly, cele-
brated according to the personal law and religion
of the parties.

3. (1) Every married woman whose husband-
(a)has been convicted summarily, under section 38 Of
the Offences against the Person Ordinance, of an
assault upon her which in the opinion of the con-
victing magistrate is of an aggravated character ;
(b)has been convicted upon indictment of an assault
upon her, and sentenced to pay a fine of more than
one hundred dollars or to a term of imprisonment
exceeding two months;





(c) has deserted her;
(d)has been guilty of persistent cruelty to her or her
children ;
(e)has been guilty of wilful neglect to provide reason-
able maintenance for her or her infant children
whom he is legally liable to maintain ;
(f) has, while suffering from a venereal disease, and
knowing that he was so suffering, insisted on
having sexual intercourse with her;
(g) has compelled her to submit herself to prostitution
(h) is a habitual drunkard, or a drug addict,
may apply to a magistrate for an order tinder this
Ordinance.

(2) Where the husband has, in the opinion of the
magistrate, been guilty of such conduct as was likely to
result and has resulted in her submitting herself to prostitu-
tion, he shall, for the purposes of this section, be deemed
to have compelled her so to Submit herself.

4. The husband of every married woman who-
(a) has been guilty of persistent cruelty to his children
(b) is a habitual drunkard or a drug addict,
may apply to a magistrate for an order under this
Ordinance.

5. On any application under section 3 or 4, the magis-
trate may make one or more orders containing all or any of
ihe following provisions-
(a)that the applicant be no longer bound to cohabit
with her husband, or, as the case may be, that the
applicant be no longer bound to cohabit with his
wife (which provision while in force shall have the
effect of a decree of judicial separation on the
ground of cruelty) ;
(b)that the legal custody of any children of the mar-
riage be committed to the husband, or to his wife;
(c)that the husband shall pay to his wife, or to the
magistrate's clerk or any third person on her behalf,
such weekly sum, not exceeding two hundred and
fifty dollars, as the magistrate having regard to the
means both of the husband and his wife considers
reasonable;





(d)that the husband shall pay to his wife, or to the
magistrate's clerk or any third person on her be-
half, such weekly sum not exceeding thirty dollars
for the maintenance of each child of the marriage
committed to her custody under paragraph (b) until
such child attains the age of sixteen years;
(e)a provision for payment by the husband or his
wife, or both of theni, of such reasonable costs of
the parties or either of them as the magistrate may
think fit.

6. (1) No order shall be made under this Ordinanee
if it is proved that the applicant has committed an act of
adultery : Provided that the husband or, as the case may
be, the wife, of the applicant has not condoned, or connived
at, or by his or her wilful neglect or misconduct conduced
to such act of adultery.

(2) No order made under this Ordinance shall be en-
forceable and no liability shall accrue under any such order
whilst the married woman, and her husband, with respect
to whorn the order was made, reside together, and any such
order shall cease to have effect if for a period of three
months after it is made the married woman and her husband
continue to reside together.

7. (1) Any magistrate may on the application of the
married wornan or her husband, and upon cause being
shown on fresh evidence at any time alter, vary or discharge
any order made under this Ordinance, and may from time
to time increase or diminish the amount of any weekly pay-
ment ordered to be made, so that the same does not in any
case exceed such weekly sum as might be ordered to be paid
under section 5.

(2) If any person who has applied for an order and with
respect to whorn an order has been made under this Ordin-
ance voluntarily resumes cohabitation with her husband or,
as the case may be, with his wife, or commits an act of
adultery, such order shall upon proof thereof be discharged :
Provided that if the order was made on the application of a
married woman, the magistrate may, if he thinks fit-
(a)refuse to discharge the order if in his opinion such
act of adultery as aforesaid was conduced to by the





failure Of the husband to make such payments as
in the opinion of the magistrate he was able to
make under the order; and
(b)in the event of the order being discharged, make
a new order that the legal custody of the children
of the marriage shall continue to be committed to
the wife, and that the husband shall pay to the wife
or to the magistrate's clerk or any third person on
her behalf a weekly sum not exceeding thirty dollars
until the child attains the age of sixteen years. In
making such an order the magistrate shall have
regard primarily to the interests of the children.

8. If in the opinion of a magistrate the matters in
question between the parties or any of them would be more
conveniently dealt with by the Suprerne Court, the magis-
trate may refuse to make an order tinder this Ordinance,
and in such case, without prejudice to the general right of
appeal conferred by the Magistrates Ordinance, no appeal
shall lie from the magistrate's decision : Provided that the
SUprerne Court shall have power by order in any proceeding
in the Supreme Court relating to or comprising the same
subject matter as the application so refused as aforesaid, or
any part thereof, to direct the ma-istrate to rehear and deter-
mine the same.

9. (I) Where, on the bearing of an application for an
order of maintenance, the application is adjourned for any
period exceeding one week, the magistrate may order that
the husband do pay to the wife or to the magistrate's clerk
or any third person on her behalf a weekly sum, not exceed-
ing Such an amount as might be ordered to be paid under
a final order, for the maintenance of the wife and any child
or children in her custody until the final determination of
the case : Provided that the order directing such payment
shall not remain in operation for more than three months
from the date on which it was made.

(2) Any such order shall be enforced in like manner as
if it were a final order of the magistrate.

10. Any person for the time being under an obligation
to make payments, including costs, under an order under
this Ordinance shall give notice to such persons, if any, as





may be specified in the order of any change of address, and
any person failing to give such notice without reasonable,
excuse shall be liable on summary conviction to a fine of
two hundred and fifty dollars.

11. Where an order under this Ordinance contains a
provision committing to the applicant the legal custody of.
any children of the marriage, a copy of the order may he)
served upon any person in whose actual custody the Children
may for the time being be, and thereupon the provision rnay,
without prejudice to any other remedy open to the applicant,
be enforced tinder subsection (2) of section 39 of the Magis-
trates Ordinance, as if it were an order of the magistrate
requiring that person to give up the children to the
applicant.

12. All applications under this Ordinance shall be
made and be dealt with and all orders be enforced. in
accordance with the Magistrates Ordinance.
49 of 1935. 42 of 1948. 9 of 1950. Short title. Interpretation. (Cap. 179.) 42 & 43 Vict., c. 19, s. 3. 2 Edw. 7, c. 28, s. 5. 15 & 16 Geo. 5, c. 51, s. 3. (Cap. 134.) Grounds on which married woman may apply. 58 & 59 Vict., c. 39, s. 4. 2 Edw. 7, c. 28, s. 5 (1). 15 & 16 Geo. 5, c. 51, s. 1 (1) & (2). (Cap. 212.) Grounds on which husband may apply. 2 Edw. 7, c. 28, s. 5 (2). 15 & 16 Geo. 5, c. 51, s. 1 (3). Powers of Magistrate. 58 & 59 Vict., c. 39, s. 5. 10 & 11 Geo. 5, c. 63, s. 1. 42 of 1948, s. 2. [s. 5 cont.] 42 of 1948, s. 2. Limitation of powers of magistrate. 58 & 59 Vict., c. 39, s. 6. 15 & 16 Geo. 5, c. 51, s. 1 (4). Magistrate may vary or discharge order. 58 & 59 Vict., c. 39, s. 7. 9 of 1950, Schedule. Magistrate may refuse an order in cases more fit for the Supreme Court. 58 & 59 Vict. C. 39, s. 10. (Cap. 227.) Power to order interim payments where application for maintenance is adjourned. 15 & 16 Geo. 5, c. 51, s. 6. Notice of change of address. 15 & 16 Geo. 5, c. 51, s. 4. [s. 10 cont.] 9 of 1950, Schedule. Enforcement of orders as to custody of children. 15 & 16 Geo. 5, c. 51, s. 5. (Cap. 227.) Procedure.

49 of 1935. 42 of 1948. 9 of 1950. Short title. Interpretation. (Cap. 179.) 42 & 43 Vict., c. 19, s. 3. 2 Edw. 7, c. 28, s. 5. 15 & 16 Geo. 5, c. 51, s. 3. (Cap. 134.) Grounds on which married woman may apply. 58 & 59 Vict., c. 39, s. 4. 2 Edw. 7, c. 28, s. 5 (1). 15 & 16 Geo. 5, c. 51, s. 1 (1) & (2). (Cap. 212.) Grounds on which husband may apply. 2 Edw. 7, c. 28, s. 5 (2). 15 & 16 Geo. 5, c. 51, s. 1 (3). Powers of Magistrate. 58 & 59 Vict., c. 39, s. 5. 10 & 11 Geo. 5, c. 63, s. 1. 42 of 1948, s. 2. [s. 5 cont.] 42 of 1948, s. 2. Limitation of powers of magistrate. 58 & 59 Vict., c. 39, s. 6. 15 & 16 Geo. 5, c. 51, s. 1 (4). Magistrate may vary or discharge order. 58 & 59 Vict., c. 39, s. 7. 9 of 1950, Schedule. Magistrate may refuse an order in cases more fit for the Supreme Court. 58 & 59 Vict. C. 39, s. 10. (Cap. 227.) Power to order interim payments where application for maintenance is adjourned. 15 & 16 Geo. 5, c. 51, s. 6. Notice of change of address. 15 & 16 Geo. 5, c. 51, s. 4. [s. 10 cont.] 9 of 1950, Schedule. Enforcement of orders as to custody of children. 15 & 16 Geo. 5, c. 51, s. 5. (Cap. 227.) Procedure.

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