McIlroy v McIlroy - [1946] HCA 4

RESPONDENT. RESPONDENT,

ON APPEAL FROM THE SUPREME COURT OF Divorce-DesertionPetition by wife-Deed of separationRepudiation by husband

-No acceptance by wife of repudiation-Marriage Act 1928 (No. 3726) (Vict.), S. 75 (a). MELBOURNE,

The petitioning wife left the matrimonial home in October 1930 in consequence of her daughter's complaint, the truth of which was admitted by the husband, SYDNEY,

that he had " "tried to be indecent to her." Shortly afterwards husband and April 8.

wife executed a deed of separation, and they never lived together again. The deed provided for weekly payments by the husband to the wife, the payments in the first instance to be made by a debtor of the husband. The debtor made the payments until he had discharged his indebtedness, but the husband never personally made any such payments. In 1936 the wife sued the husband under which the husband was a beneficiary. Shortly afterwards the husband disappeared. Thereafter the wife received nothing under the deed and made no attempt to enforce payment. In 1943 she applied for and was granted a pension as a deserted wife under the Widows' Pensions Act 1942. In 1945 she petitioned for divorce on the ground, under S. 75 (a) of the Marriage Act 1928 (Vict.), of desertion for three years and upwards. The trial judge was of opinion that the husband intended to desert the wife, but he was not satisfied that the wife had ever accepted the husband's repudiation of the deed of separation and ceased to regard the deed as governing the relationship of the parties; he dismissed the petition. petitioner to a decree: ; the decision of the trial judge was justified on the

Pardy v. Pardy, (1939) P. 288, discussed. Decision of the Supreme Court of Victoria (O' Bryan J.) McIlroy v. McIlroy, (1946) V.L.R. 8, affirmed.

73 CLR 271

APPEAL from the Supreme Court of Victoria.

By petition dated 19th April 1945 Agnes Roberta McIlroy sought of the Supreme Court of Victoria a decree that her marriage with the respondent, James McIlroy, be dissolved on the ground (under S. 75 (a) of the Marriage Act 1928 (Vict.) ) that the respondent had without just cause or excuse wilfully deserted her and without any such just cause or excuse left her continuously SO deserted during three years and upwards. The petition was heard by O'Bryan J., from whose judgment the following passage, showing the facts of the case, is taken The parties were married on 17th November 1909. After a somewhat unsatisfactory matrimonial existence, during long periods of which they lived apart, they settled down in 1920 and lived together as man and wife in a rented house at Mildura until October 1930. There were then two living children of the marriage, a son aged about twenty and a daughter aged about sixteen years. On a certain Sunday in October 1930 the daughter complained to her mother that her father had come to her bedroom after she had gone to bed and had…

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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Details

Case: [1946] HCA 4
Decision Date: 8 April 1946

CaseChat Overview and Summary

This case involved a petition for divorce filed by a wife against her husband in the Supreme Court of Victoria, on the grounds of desertion for three years and upwards under section 75(a) of the Marriage Act 1928 (Vic.). The dispute arose from a separation that initially occurred following the husband's admission of indecent conduct towards his daughter. Shortly after this incident, the parties executed a deed of separation, which included provisions for weekly maintenance payments from the husband to the wife.

The legal issues before the court were whether the separation, which began under a deed, had transformed into desertion by the husband. Specifically, the court had to determine if the husband's subsequent repudiation of the deed by ceasing payments, and the wife's reaction to this repudiation, were sufficient to establish desertion for the statutory period. The court also considered whether the wife's actions, such as applying for a deserted wife's pension, constituted an acceptance of the husband's repudiation of the deed.

The High Court affirmed the decision of the Supreme Court of Victoria, holding that the separation, having commenced consensually through the deed, could only become desertion if the consensual element was removed. The court reasoned that while the husband had repudiated his obligations under the deed by failing to make payments, the wife had not sufficiently demonstrated an acceptance of this repudiation. Her continued reliance on the deed, as evidenced by her enforcement of payments in 1936 and her application for a pension which dated the desertion from around 1930 (the time of the deed), indicated that she still regarded the deed as governing their separation. Therefore, the separation remained consensual, and the ground of desertion was not established.

The appeal was dismissed, upholding the trial judge's finding that the wife had not provided sufficient evidence to show that she had ceased to consent to the separation, despite the husband's repudiation of the deed.

Orders