Pearlow v Pearlow

The case of *Pearlow v Pearlow* involved an appeal from a decision of the Supreme Court of Western Australia, where the appellant husband sought a decree of dissolution of his marriage. The grounds for dissolution were based on the parties having lived apart for a continuous period of not less than five years immediately preceding the action, with no reasonable likelihood of resuming cohabitation, as provided by section 15(j) of the *Matrimonial Causes and Personal Status Code 1948* (W.A.). The trial judge found that the statutory grounds for divorce were met but refused to grant the decree, exercising the absolute discretion vested in the court under section 25(1) of the Code.

The legal issues before the appellate court were whether the trial judge had properly exercised his discretion in refusing the decree and, if not, whether the appellate court should substitute its own discretion. The refusal was based on two grounds: the judge's doubts regarding the appellant's general veracity, stemming from his inability to recall the grounds of a previous divorce, and the circumstances of that prior divorce. The appellant contended that these grounds were insufficient and irrelevant to the exercise of discretion in the current proceedings.

The appellate court, comprising Dixon C.J., Webb J., and Taylor J., held that while the discretion conferred by section 25(1) is broad, it must be exercised judicially and based on relevant considerations. The court found that the trial judge's doubts about the appellant's veracity were based on inadequate material, particularly given the confusion surrounding the grounds of his previous divorce. The court emphasised that a low personal credibility or a prior divorce, in itself, is not a sufficient reason to refuse a dissolution. The court reasoned that the purpose of the discretion is to consider factors relevant to the policy and purpose of the divorce legislation, such as the reasons for the separation and the public interest, and that the inquiry into the truth must fail due to the party's evasions for credibility issues to become material to the exercise of discretion.

Ultimately, the Full Court allowed the appeal, discharged the order of the Supreme Court, and ordered a new trial. The court concluded that the discretion had been exercised on inadequate materials and that there was an appreciable risk of injustice to the appellant. The new trial was directed to allow for a further investigation into the facts relevant to the discretionary refusal of a dissolution.