Main v Main

This case concerned an appeal from the Full Court of the Supreme Court of Western Australia, which had affirmed a decision dismissing a wife's petition for divorce. The wife sought dissolution of her marriage on the grounds that she and her husband had lived separately and apart for five years immediately prior to the petition and that cohabitation was unlikely to resume. The husband had become a chronic invalid, confined to an institution due to paralysis, and was unlikely to ever be discharged. The trial judge had dismissed the petition, holding as a matter of law that the statutory ground for divorce had not been established.

The High Court was required to determine the proper interpretation of the statutory provision for divorce based on separation, specifically whether the facts of the case fell within its scope. It also had to consider the exercise of the discretion granted to the court to refuse a decree of dissolution. The central legal issues revolved around the meaning of "separately and apart" in the context of a marriage where one party is permanently incapacitated and institutionalised, and whether the court's discretion to refuse a decree was properly exercised by the lower courts.

The High Court held that the words "separately and apart" required both physical separation and the destruction of the matrimonial relationship (consortium vitae). It found that the wife had established both these elements, as the husband's permanent and hopeless condition made the resumption of cohabitation impossible. The Court clarified that the discretion to refuse a decree under the relevant subsection was not a discretion to grant relief, but rather to refuse it. Therefore, once the factual conditions for divorce were met, a decree should generally be pronounced unless there were valid discretionary grounds for refusal. The Court found no such grounds in this case, noting the wife's blamelessness and the permanent destruction of the marriage.

The appeal was allowed, and the orders of the Supreme Court of Western Australia were discharged. A decree nisi for dissolution of the marriage was granted, with a provision that it would not be made absolute for six months.