Zarnke v Zarnke [1950] HCA 41

High Court of Australia Latham C.J. Fullagar and Kitto JJ. Zarnke v Zarnke [1950] HCA 41

ORDER Appeal allowed with costs. Order of Supreme Court, except pars. 1 and 2 thereof, discharged. Order nisi for divorce with costs, which order may be made absolute after 31st December 1950.

Cur. adv. vult.

The following written judgments were delivered:—

Oct. 31 Latham C.J.

This is an appeal from a judgment dismissing, by reason of adultery of the plaintiff wife, an action for divorce on the ground of desertion. It was held that the wife had a Queensland domicile. She took proceedings for divorce in South Australia by virtue of the Commonwealth Matrimonial Causes Act, 1945. By reason of s. 11 of that Act, s. 26 of the Matrimonial Causes Acts, 1864 to 1949, of Queensland was applicable. By that section it is provided that the court shall not be bound to pronounce a decree of divorce if it shall find that the petitioner has, during the marriage, been guilty of adultery, or if the petitioner shall in the opinion of the court have been guilty of unreasonable delay.

The plaintiff was, when pregnant to her husband, deserted by him in 1927 within four months after the marriage. She was then only seventeen years of age. She has not seen or heard from her husband since 1927. She had no means then or since. She had a child by another man in 1929. She has lived largely by means of public relief and charity. Her two children are adult. Since 1944 she has been living with another man named Daniels as his wife and both he and she have very frankly stated in evidence that they propose to continue their association, but that they wish to get married, the man being now in a position to marry the plaintiff, having been divorced by his wife on the ground of adultery with the plaintiff. His wife has now married his brother.