Reginald Alfred Waghorn v Miriam Dorothy Waghorn [1942] HCA 1

65 C.L.R.] OF AUSTRALIA.

[HIGH COURT OF AUSTRALIA.]

REGINALD ALFRED WAGHORN . ' . APPELLANT;

PETITIONER, AND MIRIAM DOROTHY WAGHORN " : . RESPONDENT. RESPONDENT,

ON APPEAL FROM THE SUPREME COURT OF NEW SOUTH WALES.

Divorce—Desertion—Continuance—Adultery of deserted spouse—Effect—Deserting spouse unaware of or uninfluenced by adultery—Precedents—Conflicting decisions of High Court and English courts—Matrimonial Causes Act 1899-1929 (N.S.W.) (Wo. 14 of 1899—No. 5 of 1929), secs. 13 (a), 16 (a), 19 (2) (a), 20 (3).

If a spouse commits adultery after he or she has been deserted, the desertion is not necessarily terminated as a matter of law, regardless of the question whether the deserting spouse knew of the adultery or whether it had any influence on his or her conduct. If it is left in doubt whether the respondent knew of the adultery or, if known, whether his or her conduct was affected by it, the petitioner would fail to discharge the burden of proof. The question is to be determined according to the circumstances of each case.

So held by Rich, Starke, Dixon and Williams JJ. (McTiernan J. dissenting).

Herod v. Herod, (1939) P. 11, and Earnshaw v. Earnshaw, (1939) 2 All E.R. 698, followed, and Crown Solicitor (S.A.) v. Gilbert, (1937) 59 C.L.R. 322, not followed, by Rich, Dixon and Williams JJ. on the ground that it is desirable to achieve uniformity of decision with the English courts, and by Starke J. on the ground that Crown Solicitor (S.A.) v. Gilbert, (1937) 59 C.L.R. 322, was wrongly decided.

Decision of the Supreme Court of New South Wales (Owen J.) reversed.

Apprat from the Supreme Court of New South Wales.

In a petition filed by Reginald Alfred Waghorn on 20th July 1940, in the matrimonial causes jurisdiction of the Supreme Court of New South Wales, the petitioner sought a decree that his marriage