Viant v Viant

This case involved an appeal by a husband against the dismissal of his divorce action by the Supreme Court of South Australia. The husband sought dissolution of his marriage on the grounds of adultery and desertion, which were established by the evidence. However, the trial judge refused the divorce, finding the action to be collusive and the husband to be suing without good faith and guilty of unreasonable delay. The spouses had been married in 1918 and separated in 1920, with the husband subsequently learning of his wife's adulterous relationship and their subsequent children. Despite this knowledge, the husband took no action for thirty-two years until prompted by his wife's brother, who agreed to cover the costs of the proceedings.

The legal issues before the court were whether the husband's thirty-two-year delay in commencing divorce proceedings constituted unreasonable delay, and whether the arrangement for the payment of costs rendered the action collusive. The court was required to consider the exercise of discretion by the trial judge in refusing the divorce on these grounds. The Matrimonial Causes Act 1929-1941 (S.A.) provided for unreasonable delay as a discretionary bar to relief.

The court affirmed the trial judge's decision, holding that the husband had been guilty of unreasonable and culpable delay. The court reasoned that the unreasonableness of delay is not solely determined by its duration but must be culpable, indicating acquiescence, condonation, indifference, or insincerity. In this instance, the husband's prolonged inaction and apparent indifference to his wife's circumstances demonstrated a complete lack of concern, falling short of consent to the indefinite continuation of the situation. While the trial judge also considered the arrangement regarding costs to be collusive, the court found it unnecessary to definitively rule on this point, as the unreasonable delay alone provided sufficient grounds to uphold the refusal of the divorce. The court emphasised that the discretion to grant or refuse divorce must be exercised with due regard for the public interest in maintaining respect for marriage and established standards of conduct.

The appeal was dismissed, and the decision of the Supreme Court of South Australia was affirmed.