Smith v Smith [1948] HCA 26; (1948) 76 CLR 525 (6 October 1948)

HIGH COURT OF AUSTRALIA

SMITH v. SMITH [1948] HCA 26; (1948) 76 CLR 525

Divorce

High Court of Australia
Latham C.J.(1), Starke(2), Dixon(3), McTiernan(4) and Williams(5) JJ.

CATCHWORDS

Divorce - Desertion - Petition by wife - Ill-treatment of wife by husband - Animus deserendi - Agreement made in contemplation of separation - Departure by husband from matrimonial home - Whether separation by agreement - Marriage Acts 1928-1943 (Vict.) (No. 3726 - No. 4963), s. 75 (a).

HEARING

Melbourne, 1948, October 6. 6:10:1948
APPEAL from the Supreme Court of Victoria.

DECISION

The following judgments were delivered: -
LATHAM C.J. With regret I am of opinion that this appeal should be the document signed by the parties amounted to an agreement for separation, an agreement, it is true, brought about by the misbehaviour of the husband which would have justified the wife in leaving him and would have placed him in the position of deserting her, even if she were the spouse who left the matrimonial home. But, though she had every reason for separation, there was no separation in fact until the separation which took place upon the terms recorded in the document. The parties agreed that they would separate upon the wife paying the husband 15 pounds. In my opinion, though I have every sympathy with the wife, as the law stands at present, this fact prevents her establishing desertion by her husband. (at p527)

2. Accordingly, in my opinion, the appeal should be dismissed. (at p527)

STARKE J. This appeal should be allowed. (at p527)

DIXON J. I agree that the appeal should be allowed. It appears to me that the document was the outcome of the husband's conduct, and that conduct sufficiently exhibits an intention to make the matrimonial relationship impossible. The proper inference from his conduct is that he was prepared to make continued cohabitation an impossibility for his wife, as indeed he had long since done. The wife executed the document in order to secure immunity from molestation, not for the purpose of terminating with her consent a matrimonial relationship. In fact it had already been terminated before the agreement was executed in consequence of his violence. (at p528)

McTIERNAN J. I have the same difficulty in this case as that which the learned trial judge encountered. Once it is admitted - as counsel for the appellant admits here - that the document signed by the parties is a voluntary agreement on her part, I can see no escape from the decision which the trial judge has given, namely, that the appellant consented to the separation. (at p528)

2. I am of opinion that the appeal should be dismissed. (at p528)

WILLIAMS J. In my opinion the appeal should be allowed. (at p528)

2. I agree with the reasons given by my brother Dixon. (at p528)

ORDER

Appeal allowed and decree nisi for dissolution of marriage granted as of 6th October 1948. Direct that the decree shall not be made absolute until three months from 6th October 1948. Order that the appellant lodge an office copy of the order of this Court with the Prothonotary of the Supreme Court of Victoria. Order that the respondent pay the appellant's costs in the Supreme Court and in this Court.