Crown Solicitor (SA) v Gilbert

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.