Piggott v Piggott

The appeal concerned a petition for the dissolution of marriage filed by Russell George Jacob Piggott against his wife, Dorothy Joyce Piggott. The wife admitted to committing adultery with a co-respondent in April 1937 but denied other allegations of adultery. She raised defences of condonation and wilful neglect and misconduct conducing to the adultery. The Supreme Court of Tasmania granted a decree nisi, and the wife appealed to the High Court of Australia.

The central legal issue before the High Court was whether the rule established in *Russell v. Russell* [1924] AC 687, which generally prohibits a husband or wife from giving evidence of non-intercourse to prove the illegitimacy of a child born during the marriage, applied to exclude the husband's evidence denying intercourse with his wife on specific dates in June 1937. This evidence was tendered to rebut the wife's defence of condonation, and its exclusion would have led to the inference of intercourse, thereby establishing condonation due to the birth of a child conceived around that time.

A majority of the High Court, comprising Latham C.J. and Starke J., held that the rule in *Russell v. Russell* did not apply to render inadmissible the husband's evidence of non-intercourse in this context. Their reasoning was that the primary purpose of the husband's evidence was to disprove condonation by denying marital intercourse, not to prove the illegitimacy of the child. While the evidence of non-intercourse might incidentally suggest the child's illegitimacy, this was not the direct object or necessary consequence of the evidence in relation to the issue of condonation. The court distinguished the present case from *Russell v. Russell*, where the legitimacy of the child was essential to proving the adultery alleged. The court noted that Lord Dunedin's reasoning in *Russell v. Russell* supported the admissibility of such evidence when it related to issues like condonation and was not primarily aimed at bastardising a child.

As the High Court was equally divided on the appeal, the decision of the Supreme Court of Tasmania was affirmed. Therefore, the decree nisi for dissolution of the marriage was upheld.