Bradford v. Bradford

This case involved an appeal from a decision of the Supreme Court of New South Wales in a suit for dissolution of marriage. The appellant wife sought a divorce from her husband on the grounds of desertion for a period of three years without just cause or excuse. The husband had left the wife shortly after their marriage and had not returned or communicated with her since. The primary judge had dismissed the wife's petition, finding that she was "only too glad to get rid of" her husband and therefore had consented to the separation.

The legal issues before the Full Court were whether the husband's departure constituted desertion within the meaning of the Matrimonial Causes Act 1899 (N.S.W.), and specifically, whether the wife's subjective feelings of relief at her husband's absence, not communicated to him, amounted to consent to the desertion. The court was required to determine the legal definition of consent in the context of desertion and whether the wife's state of mind, as found by the primary judge, negated the husband's desertion.

The Full Court held that desertion involves the wilful bringing to an end of cohabitation by one party without the consent of the other. Consent, it was reasoned, requires more than mere acquiescence or non-resistance to an existing separation; it necessitates communication of that acquiescence or non-resistance to the other party, either by express words or conduct. A mere subjective state of mind, such as a feeling of relief, not disclosed to the other party, is insufficient to constitute consent. The court found that the primary judge had erred in concluding that the wife's undisclosed feelings of relief amounted to consent, thereby negating the husband's desertion.

Consequently, the appeal was allowed, the order of the Supreme Court was discharged, and a decree nisi for dissolution of marriage was granted, returnable in six months. The respondent husband was ordered to pay the costs of the suit and the appeal.