Gale v Gale [1952] HCA 59

High Court of Australia Dixon C.J Webb and Kitto JJ. Gale v Gale [1952] HCA 59

ORDER Appeal dismissed with costs.

Cur. adv. vult.

The Court delivered the following written judgment:—

Nov. 3 Dixon C.J, Webb and Kitto JJ.

This appeal arises out of a husband's suit for dissolution of marriage on the ground of his wife's adultery. The suit was defended. Adultery was admitted, except as to one specific occasion alleged, but both the wife and the co-defendant set up connivance, conduct inducing or contributing to the adultery and condonation (ss. 11 and 12 of the Matrimonial Causes Act 1929-1941 S.A.). The wife on her part alleged adultery against the husband and by counterclaim sought a dissolution of marriage, but Ligertwood J. who heard the suit found that the adultery she alleged was not committed by her husband. On the other hand Ligertwood J. found in her favour on the plea of connivance and as an alternative found that in respect of part of the period during which the wife had committed adultery there had been connivance and, for the rest, conduct inducing, or contributing to, the adultery. Accordingly his Honour dismissed the suit. From that decision the husband appealed to the Full Court of the Supreme Court of South Australia. The appeal was allowed and the findings of connivance, or, alternatively, of connivance as to one period and conduct inducing or contributing to the adultery as to the other, were set aside. The cause was remitted to Ligertwood J. to consider and determine whether the husband had been guilty of unreasonable delay, and if so whether relief by way of divorce would be refused. After a further hearing Ligertwood J. made an order which, after reciting that he was satisfied that the wife had habitually committed adultery with the co-defendant at divers places from some time in the year 1941 until about April or May 1950, but that the husband had been guilty of unreasonable delay, dismissed the husband's claim for relief. From that order the present appeal is now brought.