Wirth v Wirth [1918] HCA 77

Dist "

402 HIGH COURT

« (HIGH COURT OF AUSTRALIA.) WIRTH . 4 : 5 5 4 i F . APPELLA PETITIONER, AND WIRTH é i i i i : . ResponpEn RESPONDENT,

ON APPEAL FROM THE SUPREME COURT OF NEW SOUTH WALES.

1918. separation deed—Matrimonial Causes Act 1899 (N.S.W.) (No. 14 of 1899), eaeae, secs. 5, 6,7, 11.

SYDNEY, ea Nott 1261: Sec. 5 of the Matrimonial Causes Act 1899 (N.S.W.) provides that inall re and proceedings other than proceedings to dissolve any marriage the Sup Court in its matrimonial causes jurisdiction " shall proceed and act and give Geran Duty relief on principles and rules which in the opinion of the Court shall be as nearly: and Rich JJ. may be conformable to the principles and rules on which the Ecclesias

Courts of England acted and gave relief before the passing of the Imperial Ac twentieth and twenty-first Victoria chapter eighty-five but subject to # provisions herein contained and to the rules and orders under this A¢ Sec. 6 provides that '' Application for restitution of conjugal rights may made by either husband or wife by petition to the Court." Sec. 7 (1) vides that "The Court on being satisfied of the truth of the allegatior contained in the petition and that there is no legal ground why the sa should not be granted may decree restitution of conjugal rights accordingly."

Held, that, where there is an existing deed of separation between hu band and wife containing mutual covenants not to institute proceedings for restitution of conjugal rights, the Court has a discretion to refuse restitu

of conjugal rights notwithstanding that the respondent to the suit has set up any defence and has not pleaded as a bar the covenant in the deed.

Decision of the Supreme Court of New South Wales (Gordon J.) affirmed.

5 OLR] OF AUSTRALIA.

Appear from the Supreme Court of New South Wales.