Deery v Deery

The husband petitioned the Supreme Court of Victoria for a dissolution of marriage on the ground of constructive desertion by his wife. He alleged that the wife's conduct had made his life intolerable, forcing him to leave the matrimonial home. The trial judge found that the wife's persistent conduct, despite warnings, was calculated to rupture the matrimonial relationship and granted a decree nisi. The wife appealed this decision to the High Court of Australia.

The central legal issue before the High Court was whether the wife's conduct constituted constructive desertion. This required the court to determine if the wife had intentionally driven the husband away or intentionally persisted in conduct that was inconsistent with the continuation of the matrimonial relationship and known by her to be so, or which any reasonable person would consider calculated to cause a rupture. The court also considered the extent to which a spouse's intention to end the matrimonial cohabitation must be proven, as opposed to inferring intention from the natural consequences of their actions.

Dixon C.J. and Webb J. held that the wife was not guilty of constructive desertion. They reasoned that while the wife's conduct was emotionally unstable, turbulent, and often unreasonable, it stemmed from her inherent disposition rather than a deliberate intention to end the marriage. The court emphasised that the concept of constructive desertion requires proof of an intention to drive the other spouse away or to persist in conduct known to be inconsistent with the matrimonial relationship. They found that the wife's behaviour, though causing distress, was the spontaneous manifestation of her temperament and not a calculated effort to end the marriage. Kitto J. dissented.

The High Court allowed the appeal, discharged the decree nisi, and dismissed the suit.