McIlroy v McIlroy

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.