Potter v Potter [1954] HCA 52

Potter v Potter [1954] HCA 52

By majority, the evidence as a whole established that by August 1950 the respondent wife had completely repudiated the matrimonial relation, with the result that it ceased to exist and was not thereafter resumed. Although the parties continued to live in the same dwelling, there was no real sharing of a common life, sexual intercourse had ceased, meals, social life, domestic arrangements and financial dealings were separate, and the wife's conduct showed denial of the marriage in every substantial respect. Desertion for three years was therefore established under Marriage Act 1928 Vict., s. 75 (a).

Jurisdiction
Australia
Procedural Posture
Petition for Dissolution of Marriage on the Ground of Desertion / Appeal From a Judgment of the Supreme Court of Victoria Dismissing/refusing the Petition
Outcome
Appeal allowed; order of the Supreme Court of Victoria discharged; decree nisi for dissolution of marriage granted on the ground of desertion.
Legal Topics
['dissolution of Marriage' 'desertion' 'constructive Desertion' 'consortium Vitae' 'spouses Living Under the Same Roof']
['family Law'] ['dissolution of Marriage' 'desertion' 'constructive Desertion' 'consortium Vitae' 'spouses Living Under the Same Roof']

Case Brief

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Procedural Posture

Petition for Dissolution of Marriage on the Ground of Desertion / Appeal From a Judgment of the Supreme Court of Victoria Dismissing/refusing the Petition

Legal Issues

  1. 1 ['Whether the respondent wife had deserted the appellant husband without just cause or excuse and left him continuously so deserted for three years and upwards under Marriage Act 1928 Vict., s. 75 (a).' 'Whether desertion could be established although the parties continued to live in the same dwelling until shortly before the petition was presented.' 'Whether the matrimonial relation or consortium vitae had ceased by August 1950 and had not thereafter been resumed.']

Ratio Decidendi

By majority, the evidence as a whole established that by August 1950 the respondent wife had completely repudiated the matrimonial relation, with the result that it ceased to exist and was not thereafter resumed. Although the parties continued to live in the same dwelling, there was no real sharing of a common life, sexual intercourse had ceased, meals, social life, domestic arrangements and financial dealings were separate, and the wife's conduct showed denial of the marriage in every substantial respect. Desertion for three years was therefore established under Marriage Act 1928 Vict., s. 75 (a).

Court Disposition

Appeal allowed; order of the Supreme Court of Victoria discharged; decree nisi for dissolution of marriage granted on the ground of desertion.

Orders

  • ['Appeal allowed.' 'Discharge order of Supreme Court of Victoria.' 'In lieu thereof decree nisi for dissolution of marriage on ground of desertion.' 'Order that appellant do cause an office copy of order of this Court to be lodged with the Prothonotary of the Supreme Court of Victoria.']