Hugh Lawton Bartlett v Ada Pearl Bartlett [1933] HCA 53

Ries

50 C.L.R.J OF AUSTRALIA. 3

{HIGH COURT OF AUSTRALIA.)

HUGH LAWTON BARTLETT . P 4 . APPELLANT ; PETITIONER, AND ADA PEARL BARTLETT . _ s i . RESPONDENT. RESPONDENT,

ON APPEAL FROM THE SUPREME COURT OF NEW SOUTH WALES.

Divorce and Matrimonial Causes—Grounds for dissolution of marriage—Statutory yp (, op A. desertion—Restitution of conjugal rights— Conjugal rights" — Compliance" "yy. —Return for short period of time—Intentions and conduct of parties—Marital =~ intercourse—Matrimonial Causes Act 1899 (N.S.W.) (No. 14 of 1899), sec. 11 (1). Sypwzy,

Aug. 8, 95

Under sec. 11 (1) of the Matrimonial Causes Act 1809 (N.S.W.), acts of "'Y) "1 'ov. 14.

cruelty upon the part of the spouse, who obtained the decree for restitution of conjugal rights, may afford a justification for the departure of the spouse Seabee against whom it has been obtained from the matrimonial home, but such acts McTiernan JJ. will not prevent a decree of dissolution if prior thereto the latter failed actually to comply with the decree for restitution ; but, per McTiernan J., they would

constitute a discretionary bar.

Compliance with a decree for restitution of conjugal rights is the aggregate effect of a great number of acts and consists in a course of behaviour, and the acts and conduct of the spouse bound to obey must not be opposed or repugnant, to the maintenance of the matrimonial relationship. Sexual intercourse is not, necessary to obedience, but its refusal is a matter material to be considered.

A husband obtained a decree for restitution of conjugal rights, in purported compliance with which his wife returned with her children to his home. She did so in order to prevent his obtaining a decree for dissolution and she bore him no affection. After remaining for almost six weeks, during which she sometimes occupied the same bed as her husband, she-left the home with her children, alleging as a ground gross acts upon his part of cruelty of a sexual