McIlroy v McIlroy [1946] HCA 4; (1946) 73 CLR 270 (8 April 1946)

This is an appeal from a judgment of the Supreme Court of Victoria (O'Bryan J.) dismissing a petition for dissolution of marriage which was based on the ground that the respondent husband without just cause or excuse wilfully deserted the petitioner and without just cause or excuse so deserted her during three years and upwards (Marriage Act 1928 Vict., s. 75 (a)). The case was undefended. The evidence of the petitioner accepted by the learned judge showed that the marriage took place on 17th November 1909 and that the parties lived together until 1930. In October 1930 a daughter, aged sixteen, complained that her father had behaved indecently to her. The mother and daughter went away and within a few days a separation deed was signed by the husband and the wife. This deed provided for a payment to the wife by the husband of £2 a week and for the payment by one James Young, who was indebted to the respondent, of a sum of £275 10s. to the wife by weekly instalments. The deed also contained the ordinary clauses as to living apart and non-molestation. Mr. Young paid the £275, but thereafter the husband paid nothing. In 1936 he became entitled to a legacy under his father's will. The petitioner sued him under the deed and, as a result of the action, recovered a sum of £375. She did not see or hear of the husband thereafter. On 3rd February 1943 she made an application for a widow's pension under the Widows' Pensions Act 1942 and described herself as deserted by her husband for a period of not less than six months (see s. 4, definition of ). O'Bryan J. dismissed the petition upon the ground that the original separation of the parties was by consent, and that there was nothing to satisfy him that the separation was not still a separation by consent. He found that the husband had repudiated the deed by failing to make any payments under it, but he was unable to find that the wife had accepted that repudiation so as to bring about the result that the consensual separation could be said to have come to an end and desertion to have commenced. On the ground, therefore, that her original consent to the separation had continued throughout, he held that the desertion was not proved. The learned judge pointed out that the application for a pension, even if it could be regarded as an acceptance by the wife of the repudiation of the deed by the husband, was made at a date within three years from the presentation of the petition (19th April 1945).

I am unable to find any ground for objection to this decision. Desertion is a wilful separation by a spouse from the other spouse without either the consent of the other spouse or reasonable cause: See Tulk v. Tulk[1]; Bradford v. Bradford[2]. Desertion may take various forms, but as long as a separation is by consent there is no desertion, even though a husband fails to make covenanted payments under the separation deed (Roe v. Roe[3]; see also Pape v. Pape[4]).

But, though a subsisting deed of separation is a complete answer to an allegation of desertion, if the deed no longer subsists it is then possible for desertion to take place. Thus, if the parties have agreed to rescind the deed, the deed would not be an effective reply to an allegation of desertion. So also it has been held that if one party repudiates the deed and the other party accepts the repudiation so that the deed is no longer regarded by either as regulating their relations but is treated as a dead letter, then, as the separation is no longer by consent, desertion may be established (Pardy v. Pardy[5]; and see Hoggett v. Hoggett[6]). Thus, if a husband repudiates a separation deed and the wife accepts the repudiation and treats the deed as a nullity by asking him to live with her again, a refusal on his part may amount to desertion by him. This was what happened in Pardy v. Pardy[7], where it is said that the wife "made it clear to him" (the husband) "that she wanted him to provide a home for her, but he made no offer whatever." In Pardy v. Pardy[8] there are statements obiter to the effect that the continuance or cessation of consent to a separation is simply a question of fact, so that a mere change of mind, uncommunicated to the other party, will, if established, amount to an acceptance of a repudiation as discharging the contract. Sir Wilfred Greene M.R. said that the only thing required on the part of the spouse alleging desertion is that "he or she should not be a consenting party to the continuance of the separation. Whether he or she does remain a consenting party must be a question of fact." But, as I have already stated, in Pardy v. Pardy[9] there was some communication between the parties. The husband had repudiated the deed by failing to pay any real attention to his obligations thereunder and the wife had said to him that she wished them to live together again. Therefore she regarded the deed as no longer regulating their relations and said so to her husband. In the present case there is nothing of this kind, and it is unnecessary in this case to determine whether a mere change of mental attitude by the wife, uncommunicated to the husband, can be treated as an acceptance of repudiation within the principle to which reference has already been made. It has been held in this Court that consent to separation of spouses involves more than a mere state of mind not disclosed to the other party (Bradford v. Bradford[10]). There is, I think, much to be said for the proposition that acceptance of a repudiation cannot be established by proving a mere change in mental attitude, but it is unnecessary to decide that question in the present case. The learned judge has held that there was no cessation of consent to the separation and that the wife was still willing to accept the benefits of the separation deed in the form of any payment which she could get under it and the freedom from her husband's company to which she was entitled under it. There was no evidence that she, instead of desiring the separation to continue, desired matrimonial cohabitation to be resumed so as to bring the case within the actual decision in Pardy v. Pardy[11]. I can see no reason for interfering with this finding of the learned judge. In my opinion the appeal should be dismissed.

Appeal from a judgment of the Supreme Court of Victoria dismissing a petition on the part of the appellant, the wife, praying the dissolution of her marriage on the ground of desertion during three years and upwards.

The spouses executed a deed of separation in November 1930 in the ordinary form and have ever since lived apart. From the execution of the deed the spouses must be treated as living apart by mutual agreement. Separation by consent whether express or implied is not desertion. But if the spouses rescind the deed or treat it as at an end or if one spouse repudiates the deed and the other establishes that he or she is no longer a consenting party to the continuance of the separation and is asserting his or her conjugal rights then the separation is no longer due to a consensus of the spouses but is attributable to a supervening animus deserendi on the part of the repudiating spouse and a refusal or unwillingness to resume matrimonial relations (Pratt v. Pratt[12]; Pardy v. Pardy[13]).

In this particular case the trial judge found that the respondent to the suit (the husband) had undoubtedly the animus deserendi for many years. But the petitioner had, by the deed, assented to the original separation but alleged desertion on the part of her husband. It was necessary in these circumstances that she established that she was no longer a consenting party to the separation continuing.

She relies upon the presentation of her petition and upon obtaining a widow's pension under the Widows' Pensions Act 1942 based upon an allegation of desertion. But the trial judge who saw and heard the petitioner found affirmatively that her consent to the separation, given by the separation deed, continued throughout and that she was always willing to act upon and accept the benefits of that deed.

The question is one of fact and the finding of the judge ought not, in my opinion, to be disturbed.

The facts of this case could not amount to desertion if we apply the law as it has been understood and administered in Australia. The principles which have obtained in this country and which have been generally, although not uniformly, adhered to are well expounded by Cussen J. in Tulk v. Tulk[14] and Bailey v. Bailey[15], though the word "cohabitation," capable of connoting so much less, is employed once or twice in the latter judgment to express the wide and flexible conception of conjugal association which in the former judgment his Honour describes and calls the matrimonial relationship, that is "the state of things" withdrawal from which, rather than from a place, constitutes desertion according to Lord Merrivale: Pulford v. Pulford[16].

But even if we were to go further and, making desertion not only fundamentally (per Henn Collins J., Lynch v. Lynch[17]) but almost exclusively a question of intention, try the right of the petitioner-appellant to a decree for dissolution by tests derived from the decision of the Court of Appeal in Pardy v. Pardy[18], still the facts would not, in my opinion, support a finding of desertion.

In these circumstances the case cannot raise for our consideration the effect of that decision or of the decision of the Divisional Court in Thomas v. Thomas[19], which may be considered a natural, if not a logical, consequence of what was said in Pardy v. Pardy[20]. It is a matter upon which I think it is better not to express opinions by the way, but to wait until the occasion arises for giving a binding decision and then, if possible, obtain a full argument on both sides.

The petition in this case could not possibly succeed without the aid of the principles which are laid down in Pardy v. Pardy[21]. I agree entirely with the learned trial judge that the evidence fails to establish the conditions which under the doctrine of the abovementioned case are requisite to be fulfilled on the part of the spouse alleging desertion in order to establish desertion by the other spouse.

In Waghorn v. Waghorn[22] this Court overruled the interpretation which it had placed on one aspect of the law of desertion in Crown Solicitor (S.A.) v. Gilbert[23], so that the law in this country should be brought into conformity with the law as interpreted by the Court of Appeal in England. This appeal relates to another aspect of the law of desertion with which the Court of Appeal has recently dealt in Pardy v. Pardy[24]. Briefly the material facts are that on 12th November 1930 a deed of separation was entered into between the petitioner, the wife, who is the appellant, and her husband, who is the respondent, by which the respondent agreed that the appellant might at all times thereafter live apart from him as if she were unmarried and to pay her during her life so long as she continued chaste the clear yearly annuity of £104 by weekly instalments of £2 for her separate use and benefit and by which it was agreed that the spouses would not annoy, molest, disturb or otherwise interfere with one another. Since October 1936 the appellant has not received from the respondent any payments of the annuity. In 1942 the Parliament of the Commonwealth passed the Widows' Pensions Act 1942, which entitles a wife who has been deserted by her husband for a period of not less than six months to a pension. In July 1942 the appellant applied for and was granted such a pension.

The learned judge below was satisfied that (1) in the first instance the appellant desired a separation from the respondent and was content to accept a separation by agreement rather than to rely upon any marital rights she had, to live apart from him in consequence of his misconduct, and (2) since 1936 the respondent had completely repudiated his obligation to make the payments provided for by the deed; but he was not satisfied that (3) the appellant had ever accepted that repudiation.

Mr. Voumard did not challenge the first finding and relied on the second, but he did challenge the third finding, and also contended that, even if it was correct, the appellant was nevertheless entitled to succeed. After reading the evidence carefully I am not satisfied that the third finding was wrong. On the contrary I think that it was right, and that his Honour was fully justified in holding that the appellant would not have been prepared to forego her right to the annuity if she could have enforced payment, or to give up her right to live apart and resume cohabitation. There is for instance her statement in support of her application for a pension that "I have never taken action to have the deed enforced as I could not afford the expense, and I did not want to have anything to do with such a man."

In Hoggett v. Hoggett[25] Dixon A.J. as he then was, after citing a number of decisions, mainly English, pointed out that in many undefended suits in courts of first instance it had been held that when a deed of separation had been repudiated by one of the spouses and he or she persisted in leaving the other as if deserted, the former was from that time guilty of desertion. Since that case there have been further decisions in England to the same effect some of which are discussed in the judgment of Langton J. in Pardy v. Pardy[26]. Mr. Voumard contended, and his contention is supported by some of these decisions, that it was a condition going to the root of the appellant's agreement to separate that the respondent should continue to pay the annuity and that his repudiation of this obligation was sufficient to put an end to the consensual separation; so that since 1937 the appellant could claim that she had been deserted in the absence of some offer on the part of the respondent to resume cohabitation. But this Court should, in my opinion, follow the views on this point expressed by Sir Wilfred Greene M.R. (in whose judgment the other members of the Bench concurred) in Pardy v. Pardy[27]. His Lordship said that, while it was not necessary that cohabitation should be resumed after a separation by agreement before one spouse could desert the other, it was necessary that the spouse claiming to be deserted should by words or conduct show an acceptance of the repudiation of the deed by the other spouse, and thereby waive the contractual right under the deed to live separate and apart before the desertion could be said to be against his or her consent. His Lordship said that in order that a separation which began by being consensual may be changed into desertion it must lose its consensual element on both sides[28]. (The italics are mine.)

His Honour, in my opinion, correctly applied the law in Pardy v. Pardy[29] when he held that the third finding disentitled the appellant to a decree.

[1] (1907) V.L.R. 64.

[2] [1908] HCA 82; (1908) 7 C.L.R. 470.

[3] (1916) P. 163.

[4] (1887) 20 Q.B.D. 76.

[5] (1939) P. 288.

[6] (1926) V.L.R. 505.

[7] (1939) P., at p. 308.

[8] (1939) P. 288.

[9] (1939) P. 288.

[10] [1908] HCA 82; (1908) 7 C.L.R. 470.

[11] (1939) P. 288.

[12] (1939) A.C. 417.

[13] (1939) P. 288.

[14] (1907) V.L.R. 64, at pp. 65, 66; 13 A.L.R. 45, at pp. 46, 47.

[15] (1909) V.L.R. 299, at pp. 302, 303; 15 A.L.R. 237, at p. 239.

[16] (1923) P. 18, at p. 21.

[17] (1939) P. 355, at p. 358.

[18] (1939) P. 288.

[19] (1945) 62 T.L.R. 166.

[20] (1939) P. 288.

[21] (1939) P. 288.

[22] [1942] HCA 1; (1942) 65 C.L.R. 289.

[23] (1937) 59 C.L.R. 322.

[24] (1939) P. 288.

[25] (1926) V.L.R. 505, at p. 507.

[26] (1939) P. 288.

[27] (1939) P. 288.

[28] (1939) P., at p. 303.

[29] (1939) P. 288.

High Court of Australia

McIlroy v McIlroy [1946] HCA 4; (1946) 73 CLR 270 (8 April 1946)

HIGH COURT OF AUSTRALIA