Hall v Hall

This case concerned an appeal from the Supreme Court of New South Wales regarding a husband's petition for divorce on the grounds of his wife's desertion. The parties had separated in February 1931, and the husband alleged that his wife had wilfully deserted him without just cause or excuse from that date. However, the wife had filed her own petition for divorce in March 1931, which was subsequently struck out in November 1932 and never formally dismissed. The trial judge dismissed the husband's petition, finding that the wife's desertion had been suspended from the commencement of her divorce proceedings in March 1931, meaning the statutory period of three years had not elapsed.

The High Court was required to determine whether the institution and pendency of a divorce petition by one spouse could suspend or terminate a period of desertion already commenced by that same spouse, thereby preventing the other spouse from relying on that desertion for their own divorce petition. Specifically, the court had to consider the application of previous decisions, including *Gidley v. Gidley* and *Oxenham v. Oxenham*, which had interpreted statements by Isaacs J. in *Fremlin v. Fremlin* to mean that a pending suit by either party suspended the matrimonial relationship and thus any period of desertion.

The Court held that a married person cannot terminate or suspend a period of desertion already commenced by filing a petition for divorce. The mere pendency of such a petition does not preclude the innocent spouse from presenting and maintaining their own petition based on that desertion. The Court reasoned that allowing a deserting spouse to suspend desertion by filing a suit would enable them to frustrate the other spouse's remedy. The decisions in *Gidley v. Gidley* and *Oxenham v. Oxenham* were overruled, and the Court clarified that the statements in *Fremlin v. Fremlin* should be limited to situations where the prior petition was filed by the same party seeking relief in a subsequent suit on the grounds of desertion.

The High Court allowed the appeal, finding that the wife's desertion, if established by the evidence, continued uninterrupted by her own subsequent petition. The case was remitted for a new trial to determine the facts regarding the desertion.