Hall v Hall [1938] HCA 42

60 C.L.R.] OF AUSTRALIA. 375

(HIGH COURT OF AUSTRALIA.)

HALL *. : é F ; 6 ¥ . APPELLANT ; Preririoner, AND HALL 3 - ; é - A . RESPONDENT. RESPONDENT,

ON APPEAL FROM THE SUPREME COURT OF NEW SOUTH WALES.

Divorce—Desertion—Continuance for statutory period—Intervening suit—Matri- monial Causes Act 1899 (N.S.W.) (No. 14 of 1899), sec, 13 (a).

A married person cannot by filing a petition for divorce terminate or suspend a period of desertion already commenced by that person, and the mere pen- ae a dency of such a petition does not preclude the innocent spouse from presenting McTiernan JJ.

and maintaining a petition for divorce based on that desertion.

Latham €.5.,

Gidley v. Gidley, (1926) 43 W.N. (N.S.W.) 191, and Oxenham v. Oxenham, (1931) 48 W.N. (N.S.W.) 168, overruled.

Fremlin v. Fremlin, (1913) 16 C.L.R. 212, at pp. 238, 239, discussed and explained.

Decision of the Supreme Court of New South Wales (Edwards A.J.) reversed,

Apprat from the Supreme Court of New South Wales.

A petition was filed on Ist December 1937, in the Supreme Court of New South Wales, by Weaver George Blythe Hall for the dissolu- tion of his marriage with Muriel Joyce Hall on the ground that she had without just cause or excuse wilfully deserted him and without any such cause or excuse left him continuously so deserted during three years and upwards. The wife did not defend the suit.

376 HIGH COURT (1938.

H.C.or A. The parties were married on 26th October 1925. According to a evidence given by and on behalf of the husband he and his wife Haut lived together until February 1931, when he, at her request, following

eae upon a period of unhappy domestic relations, left the home and

% took up residence at a nearby residential hotel with a view, as he alleged, of returning later if he were able to effect a reconciliation. The parties never again lived together.