Wright v Wright [1948] HCA 33

High Court of Australia Latham C.J. Rich, Dixon and McTiernan JJ. Wright v Wright [1948] HCA 33

ORDER Appeal and cross-appeal dismissed. No order as to costs.

Cur. adv. vult.

The following written judgments were delivered:—

1948, Nov. 29 Latham C.J.

In cross proceedings for divorce in the Supreme Court of South Australia it was found that both parties had been guilty of adultery. The husband pleaded condonation by the wife. It was admitted by the wife that she had become aware that he suffered from a venereal disease. Sexual intercourse by a wife with knowledge of adultery by the husband is strong, though not conclusive, evidence of condonation: Cramp v. Cramp [6] . The wife gave evidence, however, that she did not know at the time that such a disease was almost necessarily the result of intercourse, and she said that she believed her husband's statement that he had contracted it in 1942 from contact with a lavatory seat. The husband also said that she appeared to believe him, though he philosophically added: "You can't read a woman's mind." She and a police constable gave evidence that in about November 1946 the constable informed her that it was practically certain that the disease was the result of intercourse with another woman. She then separated from her husband.

1. (1920) P. 158, at pp. 167, 168.

The learned trial judge, Mayo J., found that the husband had committed adultery, but he was not satisfied either that the wife had condoned the adultery or that she had not condoned it. The Matrimonial Causes Act 1929-1941 S.A. s. 10, contains the following provision: "Upon the hearing the Court shall as far as possible satisfy itself that there is no reason why the order claimed shall not be made." His Honour held that the effect of this section was to place upon the plaintiff wife the onus of satisfying the court that she had not condoned her husband's adultery. As she did not succeed in doing this, her claim was dismissed. The wife appeals against the dismissal of her action and the husband cross-appeals, asking that the order of dismissal be varied by striking out the finding of adultery against him.