Deery v Deery [1954] HCA 4

Deery v Deery [1954] HCA 4

The majority held that the wife's conduct, although difficult, turbulent and distressing, was the product of her temperament and circumstances rather than an actual intention to end the marriage or an intention to persist in conduct known to be inconsistent with the continuance of the matrimonial relationship. Treating such conduct as constructive desertion would improperly add a new ground of divorce. The decree nisi for dissolution could not stand.

Jurisdiction
Australia
Procedural Posture
Appeal in Matrimonial Cause Concerning Dissolution of Marriage on the Ground of Constructive Desertion / Appeal From a Decree Nisi Pronounced by the Supreme Court of Victoria
Outcome
Appeal allowed with costs; decree nisi discharged; suit dismissed with costs.
Legal Topics
['constructive Desertion' 'dissolution of Marriage' 'matrimonial Cohabitation' 'intention to End Matrimonial Relationship']
['family Law' 'divorce Law'] ['constructive Desertion' 'dissolution of Marriage' 'matrimonial Cohabitation' 'intention to End Matrimonial Relationship']

Case Brief

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Procedural Posture

Appeal in Matrimonial Cause Concerning Dissolution of Marriage on the Ground of Constructive Desertion / Appeal From a Decree Nisi Pronounced by the Supreme Court of Victoria

Legal Issues

  1. 1 ["Whether the wife's conduct amounted to constructive desertion by making the husband's life intolerable and forcing the separation." 'Whether the wife had an actual intention to bring the matrimonial relationship to an end, or intended to persist in conduct which any reasonable person would regard as calculated to bring about such a rupture.' 'Whether temperamental, unstable, hysterical or unreasonable behaviour, without the requisite intention, can constitute constructive desertion.']

Ratio Decidendi

The majority held that the wife's conduct, although difficult, turbulent and distressing, was the product of her temperament and circumstances rather than an actual intention to end the marriage or an intention to persist in conduct known to be inconsistent with the continuance of the matrimonial relationship. Treating such conduct as constructive desertion would improperly add a new ground of divorce. The decree nisi for dissolution could not stand.

Court Disposition

Appeal allowed with costs; decree nisi discharged; suit dismissed with costs.

Orders

  • ['Appeal allowed with costs.' 'Decree nisi discharged and in lieu thereof decree that the suit be dismissed with costs.']