Haevecker v Haevecker

Oscar George Haevecker (the appellant) sought a divorce from his wife, Bertha May Haevecker (the respondent), alleging adultery with Walter Benno Regnier. The respondents denied the adultery and raised defences of connivance, wilful neglect conducing to adultery, and conduct inducing or contributing to adultery. The Supreme Court of South Australia dismissed the petition, finding that the appellant had connived at the adultery and been guilty of wilful neglect and conduct conducing to it. The appellant appealed to the High Court of Australia.

The legal issues before the High Court were whether the appellant had connived at his wife's adultery, and if not, whether he had been guilty of wilful neglect conducing to the adultery, or of habits or conduct inducing or contributing to it, as defined by the Matrimonial Causes Act 1929 (S.A.). Connivance was an absolute bar to relief, while wilful neglect and conduct inducing or contributing to the adultery were discretionary bars. The case presented a peculiar situation where the alleged connivance and conduct were primarily based on the appellant's state of mind rather than overt actions.

Dixon and Evatt JJ., allowing the appeal, held that the evidence did not justify a finding of connivance. They reasoned that while the appellant had developed suspicions of adultery from 1931 and had expressed a desire to obtain evidence for a divorce, and had subsequently abstained from taking steps to prevent familiarity between his wife and Regnier, his conduct did not demonstrate a "willing consent" to the adultery. Crucially, they found that the appellant did not do anything to lead his wife or Regnier to believe he sanctioned their association, and both parties understood he objected to their relationship. Their Honours distinguished this from cases where a husband actively facilitates or encourages adultery. Furthermore, they found no evidence of wilful neglect conducing to, or conduct inducing or contributing to, the adultery within the meaning of the Act. Latham C.J., dissenting, would have dismissed the appeal, finding that the appellant's belief that adultery had already occurred, coupled with his desire for evidence and his subsequent inaction and willingness for adultery to continue to supply that evidence, constituted connivance.

The High Court reversed the decision of the Supreme Court of South Australia. The appeal was allowed, and the case was remitted to the Supreme Court for further proceedings.