NEW SOUTH WALES. Husband and wife-Divorce-Desertion - - by husband-Wife leaving home by reason
of husband's conduct-Temporary separation-Intention to desert formed by husband after separation begun.
A separation between husband and wife brought about by the act of the husband does not constitute desertion unless accompanied by an intention on his part to permanently put an end to cohabitation.
Whether the husband's conduct does indicate such an intention is a question Where the separation is begun by the wife withdrawing from the matri- monial home, owing to conduct on the part of the husband which justifies her in leaving him, it is in effect the act of the husband and not of the wife.
A separation, begun by the husband under circumstances which show that at the time he intended it to be only temporary, may become desertion if continued by the husband with the intention of making it permanent.
Where a separation was begun by a wife leaving her home owing to conduct on the part of her husband which justified her in withdrawing herself temporarily from his society, and the husband afterwards, when the wife desired to return to him, absconded and held no further communication with
Held, that the husband was guilty of desertion. Decision of Street J. (24th June 1908) reversed, but on a different ground.
APPEAL from a decision of Street J. in the Supreme Court of New
South Wales, Matrimonial Causes Jurisdiction.
This was a suit by the appellant Evelyn Veronica White for dissolution of marriage on the ground of desertion. The parties were married on 8th March 1904 and lived together until 9th December 1904, when the appellant left her husband. During the period when they were living together the husband drank to excess very frequently and behaved with great cruelty towards the appellant. On 9th December 1904 the respondent came home drunk, assaulted the appellant with great violence, threatened to kill both her and himself, and told her to "clear out." She there- upon left the house, fearing further violence. Next day she returned to the house for her clothing, when she saw her husband for the last time, She then instituted legal proceedings against him, but they came to nothing as he disappeared from the locality, and nothing was seen or heard of him afterwards.
At the end of 1907, more than three years afterwards, the appellant instituted this suit. At the hearing Street J. who presided dismissed the petition on the ground that the evidence did not satisfy him that at the date of the separation there was any design on the part of the respondent to drive the wife from her home, and to put an end to cohabitation. No question was raised as to whether any such intention was afterwards formed.
From this decision the petitioner now appealed in forma pauperis.
P. K. White, for the appellant. Even if the circumstances surrounding the beginning of…
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.
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AGLC
White v White [1908] HCA 80
Case
[1908] HCA 80
Decision Date
CaseChat Overview and Summary
This case involved an appeal from the Supreme Court of New South Wales concerning a petition for dissolution of marriage on the grounds of desertion. The appellant, Evelyn Veronica White, sought a divorce from her husband, the respondent, who had disappeared and had not been heard from since the parties' separation. The initial separation occurred when the appellant left the matrimonial home due to the respondent's excessive drinking, cruelty, and violent threats, including an assault and a command to leave.
The legal issue before the High Court of Australia was whether the respondent had deserted the appellant. Specifically, the court had to determine if the respondent's conduct, both at the commencement of the separation and subsequently, constituted desertion for the purposes of divorce. The primary judge had dismissed the petition, finding insufficient evidence that the respondent intended to permanently end cohabitation at the time of the separation.
The High Court, in allowing the appeal, reasoned that while the respondent may not have intended to permanently withdraw from cohabitation at the precise moment the appellant left, his subsequent actions provided sufficient evidence of desertion. The court applied the principle that a separation initiated by a wife due to the husband's justifying conduct is effectively the husband's act. Furthermore, the court held that an intention to desert, even if not present at the commencement of a separation, could be formed subsequently and inferred from conduct. The respondent's disappearance the day after the separation, his subsequent complete lack of communication, and his absconding were held to be strong indicators of an intention to permanently end cohabitation, thus constituting desertion.
Consequently, the High Court reversed the decision of the Supreme Court and granted a decree nisi for dissolution of marriage, returnable in six months.