QUEENSLAND. Husband and Wife-Dienree-Wife's petition-Adultery-Petitioner's adultery-
Discretionary bar-Principles of exercise of discretion-Review of trial judge by appellate tribunal-The Matrimonial Causes Acts, 1864 to 1945 (Q.) (28 Vict. No. 29-9 Geo. VI. No. 8), 8. 26.
Section 26 of The Matrimonial Causes Acts, 1864 to 1945 (Q.) provides that :- In case the court shall be satisfied on the evidence that the case the petitioner has been proved
then the court shall pronounce a decree declaring such marriage to be dissolved. Provided always that the court shall not be bound to pronounce such decree if it shall find that the petitioner has during the marriage been guilty of adultery."
On the hearing of two petitions for divorce presented by a wife on the grounds of her husband's adultery, the trial judge found, on the first petition, that the husband committed adultery in August 1946, and on the second that the husband committed adultery on 7th September 1947. The wife had filed a discretion statement admitting her own adultery with a man between July 1943 and August 1945, which she alleged her husband had condoned. This man was willing to marry her and she wished to marry him. There were two children of the marriage, both boys, aged twelve and nine, who were in the care of the petitioner.
The trial judge, in the exercise of his discretion under S. 26 of The Matri- monial Causes Acts, 1864 to 1945 (Q.), dismissed both petitions on the ground mainly that in view of the flagrant and deliberate adultery committed by the petitioner, the exercise of the discretion would probably encourage other persons to immorality because of the realization that flagrant adultery would
not prevent their success as petitioners in actions for dissolution of marriage. On appeal the Full Court pronounced a decree nisi in the wife's favour on the second petition.
Held that, having regard to (a) the wife's chastity since 1945, (b) the impossibility of any reconciliation, (c) the position and interest of the children of the marriage, (d) the interest of the petitioner and the man with whom she committed adultery and whom she desired to marry, (e) the futility of insisting upon the maintenance of a union which had utterly broken down and (f) the interest of the community at large, the Full Court was right in interfering with the exercise of the trial judge's discretion and pronouncing a decree nisi
Blunt v. Blunt, (1943) A.C. 517, applied. Decision of the Supreme Court of Queensland (Full Court): Henderson V. Henderson, (1948) Q.S.R. 36, affirmed.
APPEAL from the Supreme Court of Queensland.
By petition filed on 19th September 1946, Irene Eila Henderson sought of the Supreme Court of Queensland a decree that her marriage with Trevor Macateer Henderson be dissolved on the ground of his adultery with Vera Carten, an unmarried woman, on divers occasions in and between the months of March 1944 and…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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AGLC
Henderson v Henderson [1948] HCA 15
Case
[1948] HCA 15
Decision Date
CaseChat Overview and Summary
The case involved a wife (the petitioner) seeking a divorce from her husband on the grounds of his adultery. The wife had also committed adultery during the marriage, which she disclosed in a discretion statement. The trial judge, applying his discretion under section 26 of The Matrimonial Causes Acts, 1864 to 1945 (Q.), dismissed both of the wife's petitions for divorce. The judge's primary reason for refusing to exercise his discretion was his belief that granting a decree would encourage immorality by demonstrating that flagrant adultery by a petitioner would not prevent their success in divorce proceedings.
The legal issues before the court were whether the trial judge had erred in the exercise of his discretion in refusing to grant a decree of divorce, and if so, whether an appellate tribunal should interfere with that discretion. Specifically, the court had to determine the principles governing the exercise of discretion under section 26 of the Queensland Act, particularly in light of the petitioner's adultery, and whether the trial judge had given sufficient weight to all relevant considerations.
The High Court, by majority, held that the Full Court was correct to interfere with the trial judge's discretion and pronounce a decree nisi on the second petition. The reasoning focused on several factors: the wife's chastity since 1945, the impossibility of reconciliation, the interests of the two children of the marriage, the desire of the wife and her paramour to marry, the futility of maintaining a marriage that had irrevocably broken down, and the broader interests of the community. The court considered that the trial judge's reasoning regarding the encouragement of immorality was not sufficiently grounded in the specific facts of the case and was outweighed by these other considerations. The prevailing view was that while a petitioner's adultery is a discretionary bar, the discretion should be exercised in favour of granting a decree when a marriage has completely broken down, unless there are compelling reasons against it.
The appeal was dismissed, and the decision of the Supreme Court of Queensland (Full Court) to pronounce a decree nisi on the second petition was affirmed.