Waghorn v. Waghorn - [1942] HCA 1

REGINALD ALFRED WAGHORN

MIRIAM DOROTHY WAGHORN

RESPONDENT. RESPONDENT,

ON APPEAL FROM THE SUPREME COURT OF

NEW SOUTH WALES. Divorce-DesertionContinuance-Adultery of deserted spouse-Effect-Deserting H. C.

spouse unaware of or uninfluenced by adultery-Precedents-Conflicting decisions 1941-1942. of High Court and English courts-Matrimonial Causes Act 1899-1929 (N.S.W.) (No. 14 of 1899-No. 5 of 1929), secs. 13 (a), 16 (a), 19 (2) (a), 20 (3).

If a spouse commits adultery after he or she has been deserted, the desertion is not necessarily terminated as a matter of law, regardless of the question whether the deserting spouse knew of the adultery or whether it had any influence on his or her conduct. If it is left in doubt whether the respondent knew of the adultery or, if known, whether his or her conduct was affected by it, the petitioner would fail to discharge the burden of proof. The question is to be determined according to the circumstances of each case.

So held by Rich, Starke, Dixon and Williams JJ. (McTiernan J. dissenting). Herod v. Herod, (1939) P. 11, and Earnshaw v. Earnshaw, (1939) 2 All E.R. 698, followed, and Crown Solicitor (S.A.) v. Gilbert, (1937) 59 C.L.R. 322, not followed, by Rich, Dixon and Williams JJ. on the ground that it is desirable to achieve uniformity of decision with the English courts, and by Starke J. on the ground that Crown Solicitor (S.A.) v. Gilbert, (1937) 59 C.L.R. 322, was wrongly decided.

Decision of the Supreme Court of New South Wales (Owen J.) reversed.

APPEAL from the Supreme Court of New South Wales.

In a petition filed by Reginald Alfred Waghorn on 20th July 1940, in the matrimonial causes jurisdiction of the Supreme Court of New South Wales, the petitioner sought a decree that his marriage

65 CLR 290

with his wife, Miriam Dorothy Waghorn, be dissolved, on the ground that she had without just cause or excuse wilfully deserted him and without any such cause or excuse left him continuously SO deserted during three years and upwards. The petitioner also prayed that although during the marriage he had been guilty of adultery the court would exercise the discretion conferred upon it by sec. 19 (2) (a) of the Matrimonial Causes Act 1899-1929 (N.S.W.).

The respondent did not defend the petition. It was established by the evidence that the petitioner and the respondent were married on 11th January 1936, and lived together more or less unhappily until September of that year, when without justification the respondent left the petitioner and refused to return. There was not any issue of the marriage.

About twelve months later the petitioner and another woman commenced to live together as husband and wife, and they continued

SO to live together up to the date of the hearing of the petition. Two children had been born of this association.

The petitioner met his wife in December 1937, and discussed with her the question of the restitution of conjugal relations or, alterna- tively, of a dissolution of the marriage.…

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.

Continue reading Waghorn v. Waghorn

Details

AGLC: Waghorn v. Waghorn [1942] HCA 1
Case: [1942] HCA 1
Decision Date: 4 February 1942

CaseChat Overview and Summary

This case concerned an appeal from the Supreme Court of New South Wales regarding a petition for divorce. The petitioner, Reginald Alfred Waghorn, sought a dissolution of his marriage to Miriam Dorothy Waghorn on the grounds of her desertion. The petitioner also admitted to his own adultery during the marriage and sought the court's discretion to grant a decree. The respondent wife did not defend the petition.

The central legal issue before the High Court was whether the petitioner's adultery, committed after the respondent had deserted him, terminated the desertion as a matter of law, thereby preventing him from obtaining a divorce. This question required the court to consider the interpretation of "wilfully deserted" and "without just cause or excuse" under the Matrimonial Causes Act 1899-1929 (N.S.W.) and to reconcile potentially conflicting decisions of the High Court and English courts.

A majority of the High Court (Rich, Starke, Dixon, and Williams JJ., with McTiernan J. dissenting) held that desertion is not automatically terminated by the deserted spouse's adultery. They reasoned that the adultery only constitutes "just cause or excuse" if it affects the state of mind or conduct of the deserting spouse. If the deserting spouse was unaware of the adultery or uninfluenced by it, the desertion could continue. This approach aligned with English decisions in *Herod v. Herod* and *Earnshaw v. Earnshaw*, and diverged from the High Court's previous decision in *Crown Solicitor (S.A.) v. Gilbert*. The majority favoured adopting the English position to promote uniformity in the law.

The High Court allowed the appeal, set aside the order of the Supreme Court, and remitted the matter for rehearing. This meant the trial judge would need to determine, based on the specific circumstances, whether the respondent wife knew of the petitioner's adultery and, if so, whether her conduct was affected by it.

Orders