For the reasons given, the appeal should be allowed.

Sec. 6 of the Matrimonial Causes Act 1929 of South Australia provides that any married person domiciled in the State may claim an order for divorce on a number of grounds therein specified, which include "desertion for five years." The question of law arising for decision is whether a wife was guilty of "desertion for five years." The facts upon which this question arises are not in dispute. The wife left her husband in July 1931 with the intention of breaking off matrimonial relations, and in August 1936 the husband commenced proceedings for an order for divorce on the above-mentioned ground. The statutory period had elapsed, but the amended writ served on the wife contained admissions that the husband had committed adultery with three women between December 1932 and January 1936. The wife was ignorant of the adultery until these disclosures were made by the amended writ. She did not defend the action. The Crown Solicitor, with the approval of the Attorney-General, intervened and objected to an order nisi for a divorce being made, on the ground that by reason of the plaintiff's adultery there had not been desertion for five years within the meaning of sec. 6 of the Matrimonial Causes Act 1929 and the husband was not entitled to an order for divorce. The intervention was made at the request of the Full Court, to which the action had been referred by the learned trial judge ( A.J.) after he had heard the evidence of the husband and his witnesses. The action was referred to the Full Court to pronounce such judgment as it might think fit. His Honour was of opinion that but for the adultery he would have held that the husband had made out his claim for relief, but he said that because of the adultery he did not feel free to say that the husband had proved that his wife had been guilty of desertion for five years without just cause. But his Honour said that, if he were free to hold that the wife was guilty of desertion for five years, he would exercise the discretion of the court to order a divorce notwithstanding the husband's adultery. The case of [] stood in the way of an order nisi being made without the case being referred to the Full Court. In that case C.J. held that a husband who commits adultery after his wife has left him with the intention of deserting him cannot honestly say that thereafter she deserted him, even if she were unaware of the adultery, and in that case the learned Chief Justice dismissed the husband's claim for relief which was made on the ground of alleged desertion. Upon the reference of the present action the Full Court overruled []. They reached the conclusion that the state of desertion which was commenced by the wife's conduct in leaving her husband continued notwithstanding his adultery, and, acting on the view of A.J. that, if he could have held that the statutory ground of relief had been made out, the court should exercise its discretion to order a divorce notwithstanding the adultery, the Full Court made an order nisi for divorce.