Crown Solicitor (SA) v Gilbert [1937] HCA 79 | Case summary

Judgment (17 paragraphs)

[1]

For the reasons given, the appeal should be allowed.

[2]

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.

Before any question arises as to the manner in which the court should exercise its discretion there must first be determined the fundamental question whether the husband made out any case at all for relief. Prior to the husband's adultery the wife had not been guilty of desertion for five years. But she was ignorant of the adultery, and after it was committed there is no question that in fact she wilfully lived apart and separate from him. As she was ignorant of the adultery, it did not in fact have any influence on her conduct. The words "desertion for five years" refer, not to a specific act, but to a state of affairs which has been kept up for that period. The husband's right to relief therefore turns on the question whether a state of affairs which can justly be described as the matrimonial offence of desertion continuously existed during the period of five years which began in July 1931, when the wife left her husband. In legislation on divorce and matrimonial causes it is often made more explicit that the matrimonial offence intended to be described as desertion is "desertion without just cause or excuse," or other words with a like effect are used (See Oldroyd v. Oldroyd[49]; Synge v. Synge[50]). No definition of desertion has been framed which will fit all cases. The addition of a phrase of like import to that just quoted marks the wrongful character of the conduct which amounts to desertion and limits the offence to desertion for which the law can find no justification. The word "desertion" in sec. 6 of the present statute was clearly intended to refer to the matrimonial offence of desertion as thus understood. The omission of any qualifying phrase such as "without cause" should not lead to the conclusion that the legislature intended to make as a ground for divorce desertion for which there is a lawful justification (Frowd v. Frowd[51]). It is implicit in the Act that, if lawful justification could be found for the commencement or continuation of the conduct charged as desertion, it was not intended that any claim for relief based on that conduct should arise. The court is not here confronted with the delicate problem whether the conduct of the spouse alleged to be deserted was of a character that it could lawfully justify the other spouse in leaving him or in continuing the separation. But it is said that the wife did not know of the adultery, and, as her conduct in continuing to live apart from him was not induced by the adultery, no lawful justification can be found for the continuance of the alleged desertion after the adultery was committed. When the husband committed adultery a right arose in the wife, subject to any discretionary bars, to claim a divorce or a judicial separation. By committing the offence he renounced his marital relationship with his wife, and, while the marriage subsisted, its effects could be repaired only by condonation. Where one spouse has in the first place wilfully and without just cause separated from the other, it is difficult to see why, in principle, lawful justification for the separation should arise, if that spouse becomes aware that since the separation the other has committed adultery, but not if there is ignorance of the adultery. If these two cases are to have a different result, it must be because adultery cannot be a lawful justification for the deserting spouse's refusing to return to cohabitation unless the refusal was influenced by the adultery. The difficulty to which the assumption that there should be a different result may lead, appears if the case be considered of a wife who finding her husband in adultery leaves him, giving out, without any simulation, as her real motive for going, something which the court would not accept as a lawful justification for the departure. In such a case it is clear that the conduct of the wife in leaving her husband was not wrongful, although she happened to be actuated by a motive which would not lawfully justify her. The question whether one spouse has wrongfully continued to keep up a state of affairs amounting to desertion is one for the determination of the court upon the matters brought to its knowledge at the hearing. Where the evidence discloses that the spouse complaining of desertion has committed adultery after the alleged desertion commenced, the question whether the alleged deserting spouse thereafter wrongfully deserted the adulterous spouse does not depend upon the reaction of the alleged deserter to the knowledge of the adultery. The solution of that question must be governed by judicial standards, and not by any peculiar view which one or both of the parties might take of misconduct to which the statute attaches serious consequences and for which the law has its own judgment. Applying that principle to the present case, it cannot be said that upon the knowledge which the court has of the husband's adultery the desertion of the wife was a state of affairs which was wrongfully kept up by her for a period of five years, although she did not know of her husband's guilt. In my opinion the husband failed to prove that his wife was guilty of desertion for five years.

Crown Solicitor (SA) v Gilbert [1937] HCA 79;

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Judgment (17 paragraphs)

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Legislation Cited (6)

Cases Cited (2)

Crown Solicitor (SA) v Gilbert [1937] HCA 79; (1937) 59 CLR 322 (16 December 1937)