Fremlin v Fremlin [1913] HCA 25

Fremlin v Fremlin [1913] HCA 25 - HCA 1913 case summary — Zoe

[19]

Windeyer (with him #. A. Barton), for the appellant. The learned Judge attached too little importance to the appellant's domicil of origin, and too much to his residence in Western Australia. The fact that a man having his domicil in one of the States of the Commonwealth takes up his residence in another State has not such an effect as a change of residence from one country to an altogether foreign country. On the evidence the appellant never changed his domicil. An indefinite change of residence is not sufficient to show a change of domicil. There must be shown to have been a definite intention to change his domicil : Hodgson v. De Beauchesne (1) ; Davies wnd Jones v. State of Western Australia (2); Udny v. Udny (3); Bell v. Kennedy (4); Winans vy. Attorney-General (5); Huntly (Marchioness) v. Gaskell (6). The character of the appellant's residence in Western Australia was not such as to indicate an intention to make that State his permanent home: Jn re Patience; Patience v. Main (7). As to the question of desertion, the learned Judge has drawn a wrong inference from the statement of Pring J. that the parties had been living "separate" from one another. He interpreted that expression as meaning that the parties had intentionally put an end to their cohabitation, and he then ap- plied the decision in Fitzgerald v. Fitzgerald (8). But the expression does not bear that meaning, but only means that the parties were not living together ; consequently, that case has no application. Although the institution of the first suit for divorce suspended the cohabitation until the suit was concluded, so that during the pendency of the suit one of the parties could not be said to have deserted the other - Stevenson v. Stevenson (9); Kay v. Kay (10), - yet the cohabitation was not put an end to. There- fore it was not necessary, before the respondent could be said to have subsequently deserted the appellant, that they should have actually resumed cohabitation, or that the appellant should

[39]

The main facts are these: - The marriage took place on 24th July 1894, the petitioner, who was born in New South Wales and who, so far as we know, had never lived out of that State, being then 20 years of age. The respondent, who was 24 years older, was at that time a widow, and she had six children, ranging in age from 8 to 20 years. She, also, was born in New South Wales. There has not been any issue of the respondent's marriage with the petitioner. The parties, and the respondent's family with them, lived together on an orchard in the Windsor district, rented by the respondent. As they did not make a success of fruit growing, they went to live at Kogarah, near Sydney, where the petitioner tried, but failed, to make a living as a licensed fisher- man. The respondent had then, as her own, an income of £10 to £12a month. In 1896 the petitioner discussed with the respon- dent the expediency of his going to Western Australia to better himself. He asked her during the discussion whether she would join3him in Western Australia in the event of his doing well in that State, but she gave him no decided answer, and it does not appear that she was then, or at any time, prepared to live with him there. There is nothing to show that the petitioner had any motive for leaving New South Wales other than his desire to earn a living, and the better prospect, as it appeared to him, of succeeding in that aim in Western Australia. While the respon- dent did not evince any desire to accompany him, it appears that she approved of his going, and that they were on friendly terms with one another. He went there in 1896, and about January 1898 he returned to Sydney, where he remained till the following June. Between those months he stayed with his own people, at the respondent's request, as her house was fully oceu- pied. He saw her once or twice a week, and they had the ordinary intercourse of man and wife, unwillingly on her part. She was then supporting her four younger children out of her own means. Before again going to Western Australia, as he did

[56]

which, as petitioner, he had failed to undo.) "I thought I was quite justified in taking the measures I did to rectify my miser- able position as you must admit that I gave you every oppor- tunity of getting into correspondence with me also every induce- ment so that we could have entered into some arrangements for your settling in the West and keeping a home. But there it's no use harping on the old business so I will now endeavour to explain clearly what I want you to do. On my return here I find that things are likely to improve greatly within the next three months. I will in that time have a suitable home ready for you and what members of the family care to come with you. I will only ask you to remain at Yuin for a few months and then we can rent a place in Geraldton and as soon as I get things in connection with my business properly going I would have no difficulty in leaving my business and live permanently in Sydney or some" (the word "part" is omitted, but it appears in the draft) "of N.S.W. Of course, I would like you to understand that I make this offer with no bodily desires because I know some twelve years ago that cohabitation was always distasteful to you as I could hardly expect you to entertain any thoughts in that direction now. But it must appear clearly to you that my position is very hard (in this way) that in all sincerity I ask you to come to me and you simply ignore my asking. And just take into consideration that I am according to your way of looking at things to go through life without a place to call a home. Why, T am ashamed to partake of anyone's hospitality because I know Tam not in a position to return it. And again I appeal to you as a wife's duty to her husband and surely the better part of your nature must point out clearly the course you should follow and come and keep a home together for me. . . . If you decide to come I will arrange with Mr. Parry to secure your passage to Perth and allow you £5 for travelling expenses and I will meet you in Perth. Let me have your answer as early as possible so I will have a little time to have all in readiness for Powis. in

[68]

In Winans vy. Attorney-General (1), Lord Halsbury L.C. said : - *' Now the law is plain, that where a domicil of origin is proved it lies upon the person who asserts a change of domicil to establish it, and it is necessary to prove that the person who is alleged to have changed his domicil had a fixed and determined purpose to make the place of his new domicil his permanent home." In the much older case of Udny v. Udny (2) Lord Westbury said : - * Domicil of choice is a conclusion or inference which the law derives from the fact of a man tixing voluntarily his sole or chief residence in a particular place, with an intention of continuing to reside there for an unlimited time: This is a description of the circumstances which create or constitute a domicil, and not a definition of the term. There must be a residence freely chosen, and not pre- seribed or dictated by any external necessity, such as the duties of office, the demands of creditors, or the relief from illness; and it must be residence fixed not for a limited period or particular purpose, but general and indefinite in its future contemplation. It is true that residence originally temporary, or intended for a limited period, may afterwards become general and unlimited, and in such a case so soon as the change of purpose, or unimus manendi, can be inferred the fact of domicil is established." Lord Curriehill in the case of Donaldson v. M'Clure (3) says : - "To abandon one domicil for another means something far more than a mere change of residence. It imports an 'intention not only to relinquish those peculiar rights, privileges and immunities which the law and constitution of the domicil confer on the denizens of the country in their domestic relations, in their busi- ness transactions, in their political and municipal status, and in the daily affairs of common life, but also the laws by which the succession to property is regulated after death. The abandonment or change of a domicil is therefore a proceeding of a very serious

[118]

tended that to intend to remain until the accomplishment of an object which may occupy an indeterminate period, satisfies Lord Westbwry's expression "unlimited time." That, however, is an error. In such a case the duration of residence is limited by the time required for the attainment of the desired object, which it is assumed will at some definite point of time be accomplished. The words of Lord Selborne in Lauderdale Peerage Case (1) are again unmistakably clear. He speaks of "an intention to settle there permanently, sine animo revertendi" (2). He then enumerates circumstances which, he says (3), " appear to me to be altogether opposed to the notion that he had any idea of settling permanently in the province of New York, or of relinquishing his domicil of origin." And, further on, he observes : - * It is not because a critical state of health may oblige a man to go, or to remain with the prospect of dying, abroad, that he can be held to have abandoned, either animo or facto, his domicil of origin." It is manifest that a severe disease may be as unlimited in point of time as the making of a fortune; but if a man said he would return when completely cured, that could scarcely establish an intention to forsake his domicil of origin. In Doucet v. Geoghegan (4) Jessel M.R. treats an intention to return when a fortune has been acquired as opposed to an intention of permanent residence. In Winans v. Attorney-General (5) Lord Macnaghten indicates the tenacity of a domicil of origin as compared with any other. He says : - " Its character is more enduring, its hold stronger, and less easily shaken off." The intention requisite to shake it off must be "a fixed and settled purpose," "a determination," "a final and deliberate intention " - to do what ? Why, to " abandon" the domicil of origin and to "settle" in the other. The term animus manendi may fail to receive its full connotation unless we bear in mind Lord Selborne's words, that the settlement must be sine animo revertendi.

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but it is a question of degree. It would be most serious for an Australian to exchange his domicil of birth for that of a domicil in China, but less serious in the United States, still less in England, and least of all in a neighbouring State of the Common- wealth, where not merely conditions of life, currents of thought and laws are similar, but in many cases are identical. The strength of the individual facts would, therefore, vary in each case. But while there would be less serious consequences arising from the change, the necessity and inducements of change, and, consequently, the likelihood of intended change, are diminished. The intention is to be judged of upon all available testimony. Of this, conduct is the most important, because the most reliable, A man's own declarations are, of course, admissible in evidence, but, as laid down by the Privy Council in McMullen v. Wads- worth (1), the doctrine of the Roman law still holds good, that "Tt is not by naked assertion, but by deeds and acts, that a domicil is established." Naked assertion without deeds and acts would be useless, and assertion inconsistent with deeds and acts is equally useless to control them. In Potter v. Minahan (2)1 emphasized this point. Lord Lindley lays stress upon it in Winans v. Attorney-General (3). In Anderson v. Lanewville (4) the Privy Council said that declarations, though undoubtedly admissible, are not entitled to the first degree of consideration. Nevertheless, they are to be tested and appraised, and are not to be ignored. If the declarant is not found to be untrustworthy, and if his declarations be not opposed to the clear inference otherwise to be drawn from his conduct, it is impossible to deny deny them weight. For instance, in Wilson v. Wilson (5) Lord Penzance says : - "Tt seems to me that the question which the Court has to ask itself is this: assuming that the mere circum- stances attending the residence in England, if the man were dead, and we knew nothing of his intentions, except what we could gather from that residence, would not be sufficient to enable the Court to arrive at the conclusion that he had adopted an English domicil, still when we have the man here, and when he swears

[139]

On a subsequent day the learned primary Judge took up a very distinct ground, reasoning thus : - Cohabitation, at all events, ceased by the petitioner's adverse act of suing for divorce; cohabitation has never been resumed, nor has there been a decree for restitution of conjugal rights ; consequently, on the authority of Fitegerald v. Fitzgerald (1), there cannot be desertion, for it had no starting point. The answer is that the bringing of the suit does not destroy cohabitation. It is not desertion: it is not, in itself, a severance of conjugal relations. On the other hand, in the sense required for entitling the other spouse to sever con- jugal relations, it is not matrimonial misconduct or in any way an unjustifiable act. It is instituted as a legal right under the express provisions of an Act of Parliament, passed as a part of public policy ; and however mistaken a petitioner may be as to his substantive rights, his invocation of a duly constituted tribunal to decide them is not within the meaning of Fitzgerald v. Fitzgerald (1) "an adverse act" by which the state of cohabit- ation ipso facto definitely ceases to exist. The question, then, for the Court in such a suit is whether in consequence of the respon- dent's acts anterior to the suit, the marriage tie should be dissolved, and for the purpose of that suit, and until it is closed, there is a just cause for the respondent to remain apart from the petitioner, without being guilty of desertion. In other words, there is a practical suspension of the marriage relations during the continuance of the suit, and for the statutory purpose of the suit. During that period the mutual ordinary rights of the parties are dormant. But the moment the purpose is served, the moment the suit is out of the way, then, if it is dismissed, both parties are in the position in which they stood immediately before its commencement. If desertion had been already com- menced, its continuance resumes from the termination of the suit - the intermediate time being necessarily regarded as a just interruption, The opposite view is not only inconsistent with Knapp v. Knapp (2); Wood v. Wood (3); Lapington v. Laping-

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Judgment (179 paragraphs)