Magaard v Magaard [1958] HCA 34

Magaard v Magaard [1958] HCA 34

The judge correctly found that although the wife had just cause or excuse for leaving the husband due to his abusive conduct, the subjective intention necessary for constructive desertion on the husband's part was not established; thus neither was entitled to a decree of divorce on the ground of desertion.

Parties
Appellant; Petitioner; Respondent: Henry Gustav Hirsch Magaard; Respondent; Petitioner; Appellant: Marie Rose Magaard
Jurisdiction
Australia
Procedural Posture
Appeal From Petition and Counter Petition for Dissolution of Marriage (desertion) / High Court of Australia, on Appeal From Supreme Court of New South Wales
Outcome
Both appeals dismissed. Decision of Supreme Court of New South Wales affirmed.
Legal Topics
Divorce, Matrimonial Causes, Desertion, Constructive Desertion, Just Cause or Excuse
Family Law Divorce Matrimonial Causes Desertion Constructive Desertion Just Cause or Excuse

Case Brief

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Parties

Henry Gustav Hirsch Magaard

Appellant; Petitioner; Respondent

Marie Rose Magaard

Respondent; Petitioner; Appellant

Procedural Posture

Appeal From Petition and Counter Petition for Dissolution of Marriage (desertion) / High Court of Australia, on Appeal From Supreme Court of New South Wales

Legal Issues

  1. 1 Whether the husband's conduct amounted to constructive desertion of the wife
  2. 2 Whether the wife had just cause or excuse for leaving and remaining away from the husband under Matrimonial Causes Act 1899-1954 (N.S.W.), s. 13

Ratio Decidendi

The judge correctly found that although the wife had just cause or excuse for leaving the husband due to his abusive conduct, the subjective intention necessary for constructive desertion on the husband's part was not established; thus neither was entitled to a decree of divorce on the ground of desertion.

Court Disposition

Both appeals dismissed. Decision of Supreme Court of New South Wales affirmed.

Orders

  • Appeal dismissed.
  • Cross-appeal dismissed.