Kellway v Kellway

The case of *Kellway v Kellway* concerned an appeal to the High Court of Australia from a decision of the Supreme Court of Victoria. The appellant wife had petitioned for a dissolution of her marriage to the respondent husband on the grounds of desertion. The parties married in 1922, and after a period of marital discord, the wife left the matrimonial home in 1926. In 1928, the parties met and agreed to attempt a reconciliation, with cohabitation to resume at a later date. However, the husband subsequently refused to proceed with the reconciliation, particularly when the wife suggested involving her solicitor. The trial judge in the Supreme Court had dismissed the wife's petition, finding that the husband's conduct did not constitute desertion.

The legal issues before the High Court were whether the husband's refusal to proceed with the agreed reconciliation amounted to desertion without just cause, and whether the initial departure of the wife in 1926 constituted desertion on her part. The court was required to determine the intention of the parties regarding the termination or continuation of the matrimonial relationship, particularly in light of their agreement to reconcile and the husband's subsequent withdrawal from that agreement.

The majority of the High Court, comprising Rich and Evatt JJ., allowed the appeal, reversing the decision of the Supreme Court. Their Honours reasoned that while the initial separation in 1926 might not have constituted desertion by either party, the subsequent agreement to reconcile created a renewed matrimonial relationship. The husband's refusal to honour this agreement, particularly his withdrawal upon the wife's suggestion to involve her solicitor, demonstrated a final intention to terminate the matrimonial relationship without just cause. This conduct, viewed in the context of his prior behaviour and his subsequent actions, amounted to desertion commencing in 1928. Starke J., dissenting, held that the trial judge's findings of fact, particularly regarding the parties' intentions and the lack of a definite offer to return by the wife, should not be disturbed, and therefore the appeal should be dismissed.

The High Court allowed the appeal with costs, discharged the order appealed from (except as to costs), and pronounced a decree nisi for dissolution of the marriage, to be made absolute three months later. The court also made orders regarding the custody, maintenance, and education of the child, and remitted the petition to the Supreme Court to deal with alimony and other arising questions.