Sharah v Sharah [1953] HCA 91

89 C.L.R.] OF AUSTRALIA.

[HIGH COURT OF AUSTRALIA.]

SHARAH . A i : 2 és é 4 APPELLANT 3} RESPONDENT-PETITIONER,

AND

SHARAH . ' 3 . 3 . % 2 RESPONDENT. PETITIONER-RESPONDENT,

ON APPEAL FROM THE SUPREME COURT OF NEW SOUTH WALES.

Matrimonial Causes — Marriage — Dissolution — Constructive desertion — Spouse

charged—Intention—Proof—Absence of finding—A ppeal—Evidence—Examin- ation.

In constructive desertion the spouse charged must be shown to have been guilty of conduct equivalent to " driving the other spouse away " from the matrimonial home and to have done so with the intention of bringing the

matrimonial consortium to an end.

Where in a suit by a wife for dissolution of marriage on the ground of constructive desertion the trial judge, having found the factum but not making any reference to animus on the part of the spouse charged, made a decree for the dissolution of the marriage, the High Court, upon an appeal by the husband, examined the evidence and not being satisfied that a finding of animus should be made thereon allowed the appeal and ordered a new trial.

Baily v. Baily (1952) 86 C.L.R. 424, Lang v. Lang (1953) 86 C.L.R. 432, and Buchler vy. Buchler (1947) P. 25, referred to and discussed.

Decision of the Supreme Court of New South Wales (McClemens J.) in part

affirmed and in part reversed.

Apprat from the Supreme Court of New South Wales.

A petition dated 15th February 1952 was presented to the Supreme Court of New South Wales in its matrimonial causes jurisdiction by Veronica Lilah Sharah praying that her marriage with Nicholas Joseph Sharah be dissolved on the ground that the said Nicholas Joseph Sharah had without just cause or excuse wilfully deserted her and, without any such cause or excuse had left her continuously so deserted during three years and upwards.

H. C. or A. 1953. eZ