Blanche Evelyn Ogston v Maurice Ogston [1935] HCA 58

526 HIGH COURT o [HIGH COURT OF AUSTRALIA.] 7 BLANCHE EVELYN OGSTON . : i . APPELLANT; PETITIONER, AND MAURICE OGSTON. fe 2 3 : . Responpenr. 7 ReEsPoNnDENT,

ON APPEAL FROM THE SUPREME COURT OF 2 WESTERN AUSTRALIA. &

H.C. or A, Husband and wife—Divorce—Separation and maintenance order—Periodical payments 1935. —Failure to make payments—* Repeatedly and habitually" —Divorce and — Matrimonial Causes Ordinance 1863 (W.A.) (27 Vict. No. 19), sec. 23 (Divorce Perru, Amendment Act 1911 (W.A.) (No. 7 of 1912), sec. 2; Divorce Amendment Act Aug. 22, 26. 1925 (W.A.) (No. 23 of 1925), sec. 2).

oe Sec. 23 (e) of the Divorce and Matrimonial Causes Ordinance 1863 (enacted yt by the Divorce Amendment Acts 1911, sec. 2, and 1925, sec. 2) (W.A.) provides

that a married woman may " present a petition to the Court praying that i her marriage may be dissolved . . . on the ground that the respondent, being the petitioner's husband,—{i) is separated from the petitioner under a decree or order of a competent Court or by virtue of a deed of separation, and has been so separated for a period of three years and upwards; and (ii) is, and has been during the period aforesaid, liable by virtue of a decree or order of the said Court or of a covenant in the said deed to make periodical payments to the petitioner, or to some person on her behalf, by way of alimony or for the maintenance and support either of the petitioner alone or of her and. any child being offspring of the marriage; and (iii) has during the period aforesaid failed to make such payments periodically as required by the decree,

order or covenant, either entirely or repeatedly and habitually."

Held that, to afford ground for a decree under this paragraph, the obligation to pay must be imposed upon the husband by the same instrument as the separation, and, to be " repeated and habitual," the failure to make the ments must be persistent throughout the period of three years considered as @