Axon v Axon [1937] HCA 80

Axon v Axon [1937] HCA 80

The burden of proof that Mary Ann Axon was lawfully married to Edwin Lewis Axon lay upon her, but this was assisted by presumptions of the validity of the marriage and, potentially, the death of the previous spouse after seven years' absence. However, neither the general seven-year rule nor the evidence established death of the previous husband before the second marriage with sufficient certainty, especially as the complainant was not a person likely to have heard of Herzich if he remained alive and deliberately avoided her. The magistrate erred in placing the onus too strongly on the respondent and not adequately weighing the presumption of life. The matter should be remitted to the...

Parties
Appellant, Complainant, Wife: Mary Ann Axon; Respondent, Defendant, Husband: Edwin Lewis Axon
Jurisdiction
Australia
Procedural Posture
Appeal / On Appeal From the Supreme Court of South Australia
Outcome
Appeal dismissed
Legal Topics
Marriage Validity, Maintenance, Burden of Proof, Presumption of Validity, Desertion
Family Law Marriage Validity Maintenance Burden of Proof Presumption of Validity Desertion

Case Brief

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Parties

Mary Ann Axon

Appellant, Complainant, Wife

Edwin Lewis Axon

Respondent, Defendant, Husband

Procedural Posture

Appeal / On Appeal From the Supreme Court of South Australia

Legal Issues

  1. 1 Whether the appellant was the lawful wife of the respondent for the purposes of a maintenance order under the Maintenance Act 1926-1936 (S.A.)
  2. 2 Whether the presumption of death or validity of marriage applies when a prior spouse has been absent for over seven years and not heard from
  3. 3 On whom the burden of proof rests regarding the former spouse's death or existence

Ratio Decidendi

The burden of proof that Mary Ann Axon was lawfully married to Edwin Lewis Axon lay upon her, but this was assisted by presumptions of the validity of the marriage and, potentially, the death of the previous spouse after seven years' absence. However, neither the general seven-year rule nor the evidence established death of the previous husband before the second marriage with sufficient certainty, especially as the complainant was not a person likely to have heard of Herzich if he remained alive and deliberately avoided her. The magistrate erred in placing the onus too strongly on the respondent and not adequately weighing the presumption of life. The matter should be remitted to the...

Court Disposition

Appeal dismissed

Orders

  • Case remitted to the court of summary jurisdiction for rehearing.
  • No order as to costs for the appeal to the High Court.