Waghorn v. Waghorn

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.