High Court of Australia
77 C.L.B.] OF AUSTRALIA. 521
[HIGH COURT OF AUSTRALIA.]
POWELL E Z 5 t 5 £ . APPELLANT; PETITIONER, AND POWELL 6 . 5 E : , . R&sPONDENT. RESPONDENT,
ON APPEAL FROM THE SUPREME COURT OF VICTORIA.
Divorce—Desertion—Separation by agreement—Period of separation limited by 1, C. or A. agreement—Iefusal by wife to resume cohabitation after expiration of period 1948. limited—Marriage Acts 1928-1941 (No. 3726—No. 4839) (Vict.), s. 75 (a). we
MELBOURNE,
Oct. 22; Dec. 23.
A husband and wife separated pursuant to an agreement which provided that they should live apart for a limited period. 'The wife refused to resume living with the husband after the expiration' of the period, although requested
by the husband to do so. a CS., ke,
Held that, within the meaning of s. 75 (a) of the Marriage Acts 1928-1941 ee Ae (Vict.), the wife had deserted the husband.
Pardy v. Pardy, (1939) P. 288 and Beeken v. Becken, (1948) P. 302, followed. Fitzgerald v. Pitegerald, (1868) L.R. 1 P. & D. 694, discussed.
* Decision of the Supreme Court of Victoria (Fullagar J.), Powell v. Powell, (1948) V.L.R. 351, reversed.
Appar from the Supreme Court of Victoria.
George Leslie Powell and Alice Louisa Powell were married on Ist October 1921. In September 1928 they separated pursuant to an agreement that they live apart until September 1929. In September 1929, while they were still living apart, they executed a deed by which they agreed to live apart for a further period of twelve months, and they lived apart as so agreed. Shortly before the expiration of that period the husband wrote to the wife sugges- ting that cohabitation be resumed. The wife replied that she had no intention of living with the husband again, and cohabitation was never resumed.
H.C. or A.
1948, ee PowsL v Powe...
HIGH COURT [1948.
On 9th July 1947 the husband filed a petition in the Supreme Court of Victoria praying that the marriage be dissolved on the ground, under s. 75 (a) of the Marriage Acts 1928-1941 (Vict.), that the wife, without just cause or excuse, had wilfully deserted him and left him continuously so deserted during three years and upwards.
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