Powell v Powell [1948] HCA 48

High Court of Australia Latham C.J. Starke, Dixon and Williams JJ. Powell v Powell [1948] HCA 48

ORDER Appeal allowed. Order of Supreme Court discharged. Order that marriage be dissolved on ground of wilful desertion without just cause or excuse for a period of three years and upwards unless within three months of this order sufficient cause under s. 89 of the Marriage Act 1928 appears why this order nisi should not be made absolute. Office copy of this order to be lodged by petitioner with Prothonotary of Supreme Court. No order as to costs of appeal.

Cur. adv. vult.

The following written judgments were delivered:—

Dec. 23 Latham C.J.

This is an appeal from a decision of the Supreme Court of Victoria (Fullagar J.) dismissing a husband's petition for divorce. The petition was founded upon alleged desertion by the wife for three years and upwards. The parties were married in 1921. In the year 1928 they executed a deed of separation which provided that they should live separate for a period of twelve months from 25th September 1928. On 30th September 1929 they executed another deed under which they agreed to live separate for a further period of twelve months. Just before the expiry of that period the husband wrote to his wife asking her to come back to him but she refused to do so and said that she had no intention of ever living with him again. She has since acted in accordance with this statement, although he has asked her to return and is able and willing to provide a suitable home for her.

The learned trial judge was of opinion that this case raised the question whether the courts of Australia should follow Pardy v. Pardy [9] , which has been regarded as profoundly modifying the law as previously understood with respect to the effect of an agreement for separation in a case in which desertion is alleged.