Adkins v Adkins

This case concerned an appeal to the High Court of Australia from the Supreme Court of Tasmania regarding a petition for dissolution of marriage. The petitioner, Mr. Adkins, sought a divorce from his wife, Mrs. Adkins, on the grounds of desertion, specifically alleging that she had wilfully and unjustifiably refused marital intercourse for a period exceeding three years. The Supreme Court of Tasmania had affirmed the dismissal of the petition by the trial judge.

The legal issues before the High Court were whether the wife's refusal to permit marital intercourse constituted desertion within the meaning of the *Matrimonial Causes Act 1860-1940* (Tas.), and whether an agreement entered into between the parties provided a justifiable excuse for her refusal during its subsistence, thereby interrupting the required three-year period of desertion. Specifically, the court had to determine if a clause in the agreement, stipulating that the wife was not required to live with her husband as his wife, rendered her subsequent refusal of intercourse non-justifiable or if it was void as against public policy.

The High Court affirmed the decision of the Supreme Court, holding that the petition was properly dismissed. The court reasoned that an agreement made between the parties, which included a term that the wife would not be required to live with her husband as his wife, provided a justifiable excuse for her refusal of marital intercourse during the one-year currency of that agreement. This agreement, entered into to facilitate reconciliation, was not considered void as against public policy. Therefore, the period during which the agreement was in force could not be counted towards the three years of desertion required for a divorce. The court found that the husband's consent to the terms of the agreement, even if reluctant, meant that the wife's refusal of intercourse during that period was not "non-justifiable" as required by the Act.

Consequently, the High Court dismissed the appeal. The court concluded that while the wife's refusal of intercourse may have preceded the agreement, the agreement itself provided a continuing justification for her refusal during its term. As the necessary three-year period of desertion had not been completed, the husband's petition for dissolution of marriage was rightly dismissed.