Crown Solicitor (SA) v Gilbert - [1937] HCA 79

59 CLR 322

THE CROWN SOLICITOR FOR THE STATE

OF SOUTH AUSTRALIA

GILBERT AND ANOTHER

RESPONDENTS.

PLAINTIFF AND DEFENDANT,

ON APPEAL FROM THE SUPREME COURT OF

SOUTH AUSTRALIA. Divorce-Desertion-Husband deserted by wife-Subsequent adultery by husband within

five years -Unknown to wife-Whether wife's desertion had continued for five

Matrimonial Causes Act 1929 (S.A.) (No. 1946), secs. 5, 6 (c), 9, 12, 13. ADELAIDE,

Where a husband who has been deserted by his wife commits adultery Oct. 14, 15.

before the expiration of the period of five years mentioned in sec. 6 (c) of the SYDNEY,

Matrimonial Causes Act 1929 (S.A.), the period of desertion is thereby termin- ated even though the adultery is unknown to the wife.

So held by Dixon, Evatt and McTiernan JJ. (Latham C.J. dissenting). Douglas v. Douglas, (1903) 23 N.Z.L.R. 584, applied. Cook v. Cook, (1934) S.A.S.R. 298, approved. Gray v. Gray, (1925) Q.S.R. 166, and Hopkins v. Hopkins, (1936) V.L.R. 218, disapproved.

Decision of the Supreme Court of South Australia (Full Court): Gilbert V. Gilbert, (1937) S.A.S.R. 79, reversed.

APPEAL from the Supreme Court of South Australia.

Mark Holder William Gilbert brought an action in the Supreme Court of South Australia against his wife, Pearle Hazel May Gilbert. He claimed a divorce on the ground that his wife had deserted him

59 CLR 323

on or about 14th July 1931, and had lived apart from him since that date and had refused to return to him. The writ was issued on 23rd July 1936, and, in the statement of claim, the husband confessed that between about the month of December 1932 and the month of January 1936 he had committed adultery with three different women. The action was heard by Reed A.J., who found that the wife had deserted the husband without just cause on or about 20th July 1931 and remained apart from him continuously ever since, against the husband's will. His Honour intimated that, if free to do so, he would make an order nisi in favour of the husband, exercising the court's discretion in his favour, notwithstanding the adultery to which the husband had confessed. The action was referred to the Full Court to pronounce such judgment as that court might think fit.

The Crown Solicitor of South Australia objected to an order nisi for divorce being made and, at the request of the court and with the approval of the Attorney-General, intervened in the action. He objected that, by reason of the husband's adultery, there had not been desertion for five years within the meaning of sec. 6 of the Matrimonial Causes Act 1929, and that the husband was not entitled to the relief claimed. The Full Court held that the trial judge had power to make an order nisi, that judgment should be pro- nounced in accordance with the discretion which he desired to exercise, and that an order nisi for divorce should be made: Gilbert V. Gilbert 1.

From this decision the Crown Solicitor appealed to the High Court.

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Crown Solicitor (SA) v Gilbert

Details

AGLC: Crown Solicitor (SA) v Gilbert [1937] HCA 79
Case: [1937] HCA 79
Decision Date: 16 December 1937

CaseChat Overview and Summary

The case of *Crown Solicitor (SA) v Gilbert* involved an appeal to the High Court of Australia from the Supreme Court of South Australia. The original dispute concerned a divorce action brought by a husband against his wife on the grounds of desertion. The wife had left the husband in July 1931, and the husband initiated divorce proceedings in July 1936, alleging desertion for five years. Crucially, the husband admitted to committing adultery with several women between December 1932 and January 1936, though his wife was unaware of this. The Crown Solicitor intervened to object to the divorce being granted.

The central legal issue before the High Court was whether the husband's adultery, unknown to his wife, terminated the period of desertion by her. Specifically, the court had to determine if the husband's conduct, by committing adultery within the five-year period, provided a "just cause or excuse" for the wife's continued separation, thereby preventing her desertion from being considered continuous for the statutory period required for divorce.

The High Court, by a majority (Dixon, Evatt, and McTiernan JJ., with Latham C.J. dissenting), held that the husband's adultery, even though unknown to the wife, did terminate the period of desertion. The majority reasoned that desertion requires a breach of conjugal duty, and a spouse's adultery, regardless of the other spouse's knowledge, fundamentally alters the matrimonial relationship and absolves the other spouse from the duty to cohabit. Therefore, the husband's adultery meant he could not establish the continuous five-year desertion by his wife required by the *Matrimonial Causes Act 1929* (SA). The Court applied the principles from *Douglas v. Douglas* and approved of *Cook v. Cook*, while disapproving of *Gray v. Gray* and *Hopkins v. Hopkins*.

Consequently, the High Court reversed the decision of the Supreme Court of South Australia. The appeal was allowed, and the order nisi for divorce previously made by the Full Court was set aside.

Orders