Main v Main

Main v Main - [1949] HCA 39 - HCA 1949 case summary — Zoe

[6]

The Supreme Court Act Amendment Act 1945 added to s. 69 a further sub-section making five years' separation a ground of divorce. It is sub-s. (6). The Amendment Act also added a new section, s. 69A, which contains certain qualifications of a petitioner's right to avail himself or herself of that ground. Sub-section (6) begins by requiring that the petitioner shall be domiciled in Western Australia. It then provides that, subject to s. 69A, it shall be competent for the Supreme Court to decree a dissolution of the marriage, in the case where the husband and wife have lived separately and apart for a period of not less than five years immediately prior to the presentation of the petition and it is unlikely that cohabitation will be resumed. There is a proviso that the court in its absolute discretion may refuse a decree of dissolution. The same proviso goes on to require the court to refuse a decree unless and until provision is made for such maintenance, as in the circumstances the court thinks proper, of the respondent and any children and the custody and care of any such children. It is to be noticed that this condition is not confined to a husband's petition. But the words "as in the circumstances the Court thinks proper" make it clear that it applies only when the court considers that a provision for the maintenance of the respondent or children of the marriage should be made or for the custody and care of such children. It is not to be inferred that the legislature contemplated a provision for the maintenance of a husband as ordinarily proper, when it is a wife who petitions under sub-s. (6). There is a further proviso dealing with default on the part of the petitioner in the payment of maintenance antecedently ordered or agreed in respect of the respondent or a child. If at the time of the presentation of the petition the petitioner is so in default a decree for the dissolution of the marriage is not to be granted. This proviso happens to use the pronoun "herself" and so to make it fairly clear that it can apply, as might be supposed, only in favour of a wife.

[9]

"In deciding whether there was at any specified date an existing matrimonial relationship, it is, I think, right to say that such a relationship does not end so long as both the spouses bona fide recognize it as subsisting, and in particular it does not end by reason of a separation brought about by the pressure of external circumstances such as absence on professional or business pursuits, or in search of health, or, it may be, even of pleasure. Marital intercourse, the dwelling under the same roof, society and protection, support, recognition in public and in private, correspondence during separation, making up as a whole the consortium vitae, which the old writers distinguish from the divortium a mensa et thoro, may be regarded separately as different elements, the presence or absence of which go to show more or less conclusively that the matrimonial relationship does or does not exist. The weight of each of these elements varies with the health, position in life, and all the other circumstances of the parties" (per Cussen J., Tulk v. Tulk [1] ). The word "separate" should, it seems, be interpreted as importing the negation of such a matrimonial relationship. This conclusion is supported by the final words of sub-s. (6), namely "and it is unlikely that cohabitation will be resumed." "Cohabitation" is used in many senses but here it seems to mean a re-establishment of the ordinary relationship of husband and wife. It follows that there may be absences from one another, relinquishment of a matrimonial home and physical separations of long duration caused by circumstances and yet, if these conditions are treated as temporary by the parties themselves, it may be true that they are not living separately although they are living apart. But five years is a long time, and only in very exceptional circumstances will husband and wife live apart for so long and yet maintain a matrimonial relationship. If they do manage to maintain the relationship for so great a period, it will almost certainly be true that the resumption of cohabitation is likely and for that reason sub-s. (6) will not apply.

[16]

The object of s. 69 (6) of the Supreme Court Act 1935-1947 W.A. is to provide a new ground of divorce. The sub-section applies to any married person domiciled in Western Australia and it is a ground upon which either husband or wife may petition for dissolution of marriage. This new ground for a petition is that "the husband and wife have lived separately and apart for a period of not less than five years immediately prior to the presentation of the petition and that it is unlikely that cohabitation will be resumed." There are two conditions; namely, that the spouses have lived separately and apart for the specified period and a resumption of cohabitation is unlikely. The first condition is expressed as a double condition (living separately and apart). Reading the first condition with the second (the unlikelihood of the resumption of cohabitation), the first condition means that the parties are not only living "apart" but "separately," that is that cohabitation has ceased. The sub-section does not require that this state of affairs - living apart and separately - should be by mutual consent or the result of the repudiation of the marriage bond by either party or wilful conduct. This ground of divorce is novel but it appears in an Act providing for dissolution of marriage on various grounds. It would be classed as a remedial provision. The novelty of a provision in an Act of this kind is no reason for narrowing its scope by interpretation. That is governed by the language of the provision. The language of the provision does not restrict its operation to cases where the separation is due to any particular causes. In my opinion if husband and wife live separately and apart for the prescribed period (and cohabitation is unlikely to be resumed), even for the cause proved in the present case, the circumstances are within the provision. The court is given a discretion in any case to refuse a decree. The discretion is expressed to be an absolute one yet it is a judicial discretion. The ground upon which a decree was refused in the present case was that the sub-section does not extend to this case, not that, having regard to the circumstances, the court ought not in the exercise of its discretion to grant the petition. The present case is in my opinion within the provision. It does not appear to me, having regard to the principle of the sub-section and the circumstances of the case, that there are any tenable grounds for refusing a decree.

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Judgment (16 paragraphs)

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