Maud v [1919] HCA 2; (1919) 26 CLR 1 (12 March 1919)

HIGH COURT OF AUSTRALIA

Frederick Maud Petitioner, Appellant; and Alice Maud Respondent, Respondent.

H C of A

On appeal from the Supreme Court of Victoria.

12 March 1919

Isaacs, Higgins and Gavan Duffy JJ.

Schutt, for the appellant.

Isaacs J. and

Gavan Duffy J.

This case turns on the meaning of desertion as a matrimonial offence. Does the persistent wrongful refusal of matrimonial intercourse of itself constitute desertion? The answer is that there can be no desertion while cohabitation continues, and there may be a continuance of cohabitation notwithstanding refusal by either spouse of sexual intercourse.

In every case the question as to whether cohabitation as husband and wife has ceased must be determined as a fact upon consideration of all the circumstances. In the present case the wife, up to a few months before the presentation of the petition, continued to perform in and about the marital home substantially all the duties of a wife, except that of admitting her husband to intercourse.

In those circumstances there was no desertion, and in our opinion the judgment appealed from was right, and should be affirmed.

Higgins J.

It may well be that the persistent refusal of sexual intercourse ought to be a substantive ground of divorce, but such conduct does not per se constitute desertion. Desertion implies an abandonment—abandonment of the person deserted—abandonment of the society. It is not sufficient to show failure to carry out one of the duties of the position. A sailor who refuses to go aloft does not desert his ship. In the army desertion is a very different thing from refusal to perform one or more of one's duties: it is not desertion to refuse to do fatigue duty. Here there was no refusal of cohabitation in the proper sense of the term. In Webster's Dictionary the word "cohabitation" is defined as "the act or state of dwelling together, or in the same place with another," and in law as "the living together of a man and woman in supposed sexual relationship." So that the word involves that there need not be actual sexual relationship.

In this case the parties resided together under the same roof, received visitors there, took their meals together at the same table, and spoke together, and the wife performed the household duties, without wages of course, and certain gardening duties. Mr. Schutt has not shown us that the word "desertion" has a different meaning from its usual meaning, and I think that the decision of Hood J. was right.

Appeal dismissed.

Solicitor for the appellant, Gavan Duffy, King & Co., for M. F. Bourke, Mansfield.