Smith v Smith [1948] HCA 26

High Court of Australia Latham C.J. Starke, Dixon, McTiernan and Williams JJ. Smith v Smith [1948] HCA 26

ORDER Appeal allowed and decree nisi for dissolution of marriage granted as of 6th October 1948. Direct that the decree shall not be made absolute until three months from 6th October 1948. Order that the appellant lodge an office copy of the order of this Court with the Prothonotary of the Supreme Court of Victoria. Order that the respondent pay the appellant's costs in the Supreme Court and in this Court.

The following judgments were delivered:—

Latham C.J.

With regret I am of opinion that this appeal should be dismissed. I have the same difficulty as the learned trial judge, namely, that the document signed by the parties amounted to an agreement for separation, an agreement, it is true, brought about by the misbehaviour of the husband which would have justified the wife in leaving him and would have placed him in the position of deserting her, even if she were the spouse who left the matrimonial home. But, though she had every reason for separation, there was no separation in fact until the separation which took place upon the terms recorded in the document. The parties agreed that they would separate upon the wife paying the husband £15. In my opinion, though I have every sympathy with the wife, as the law stands at present, this fact prevents her establishing desertion by her husband.

Accordingly, in my opinion, the appeal should be dismissed.

Starke J.

This appeal should be allowed.

Dixon J.

I agree that the appeal should be allowed. It appears to me that the document was the outcome of the husband's conduct, and that conduct sufficiently exhibits an intention to make the matrimonial relationship impossible. The proper inference from his conduct is that he was prepared to make continued cohabitation an impossibility for his wife, as indeed he had long since done. The wife executed the document in order to secure immunity from molestation, not for the purpose of terminating with her consent a matrimonial relationship. In fact it had already been terminated before the agreement was executed in consequence of his violence.