Fremlin v Fremlin

Reginald William Fremlin (the husband) appealed to the High Court of Australia against a decision of the Supreme Court of New South Wales that dismissed his petition for divorce from his wife, Marie Louise Fremlin. The husband sought a divorce on the grounds of desertion for three years and upwards, alleging that his wife had wilfully deserted him without just cause or excuse and had remained so deserted for the requisite period. The Supreme Court had found that the husband was domiciled in Western Australia and that no desertion had occurred.

The High Court was required to determine two principal legal issues: first, whether the husband had established a domicile in New South Wales for the statutory period required to found jurisdiction for divorce; and second, whether the wife's refusal to join the husband in Western Australia constituted desertion within the meaning of the Matrimonial Causes Act 1899 (NSW). A related issue concerned the effect of a prior, unsuccessful divorce suit brought by the husband on the question of desertion.

The Court held that the husband had not lost his domicile of origin in New South Wales, and therefore the burden of proving a change of domicile rested on the wife, a burden she had not discharged. The Court reasoned that while the husband had resided and worked in Western Australia for a significant period, the evidence did not demonstrate a fixed and determined intention to make that state his permanent home. Regarding desertion, the Court found that the wife's refusal to join the husband in Western Australia, particularly in light of his letter in November 1906 proposing a resumption of cohabitation, constituted wilful desertion. The Court clarified that the institution of a prior divorce suit, even if unsuccessful, merely suspends cohabitation and does not necessarily bring it to an end, meaning a subsequent suit for desertion could be brought without a prior resumption of cohabitation or a decree for restitution of conjugal rights. Consequently, the High Court reversed the decision of the Supreme Court, finding in favour of the husband on both domicile and desertion.