Wright v Wright

Grace Wright (the wife) brought an action for divorce against her husband, Allan William Wauchope Wright (the husband), on the ground of his adultery. The husband denied the adultery, pleaded condonation by the wife, and counterclaimed for divorce on the ground of the wife's adultery with Richard O'Hallagan. The trial judge found both parties' adultery proved but was unable to determine the issue of condonation, dismissing the wife's action on the basis that she had not discharged the onus of proving the absence of condonation. The husband's counterclaim was successful, and an order nisi for divorce was made in his favour. The wife appealed to the High Court of Australia.

The legal issues before the High Court included the standard of proof required for adultery in matrimonial causes, the onus of proof regarding condonation, and whether the evidence established adultery on the part of the wife. Specifically, the Court had to determine if the standard of proof for adultery was beyond reasonable doubt, as suggested by an English Court of Appeal decision, or the civil standard of proof by a preponderance of probability, as previously held by the High Court. Furthermore, the Court considered the effect of section 10 of the Matrimonial Causes Act 1929-1941 (S.A.) on the onus of proof for defences such as condonation.

The majority of the High Court, comprising Dixon and McTiernan JJ., held that section 10 of the South Australian Act did not shift the onus of proof for condonation to the petitioner, and that the husband had failed to prove his defence of condonation. They also affirmed the trial judge's finding of adultery against the wife. Latham C.J. and Rich J. dissented on the issue of condonation, finding that the husband had not discharged the onus of proving it and that the wife's action should have succeeded. On the standard of proof for adultery, Latham C.J., Rich, and Dixon JJ. followed the High Court's previous decision in *Briginshaw v. Briginshaw*, holding that the civil standard of proof by a preponderance of probability applied, and not the criminal standard of proof beyond reasonable doubt.

As the Court was equally divided in opinion on the wife's action, the decision of the Supreme Court of South Australia was affirmed, meaning the wife's action was dismissed. On the husband's counterclaim, the majority of the Court found that the wife's adultery was proved, and therefore the order nisi in favour of the husband was also affirmed. Consequently, both the appeal and the cross-appeal were dismissed.