Powell v Powell [1948] HCA 48

Powell v Powell [1948] HCA 48

Where spouses separate by agreement for a limited period, the expiry of that period terminates consent. If one spouse then refuses, without cause, to resume cohabitation despite the other's bona fide request, this constitutes desertion for purposes of s. 75(a) of the Marriage Acts, and may ground divorce, even if there has been no reestablishment of a common home.

Parties
Appellant; Petitioner: George Leslie Powell; Respondent: Alice Louisa Powell
Jurisdiction
Australia
Procedural Posture
Appeal / Appeal From Supreme Court of Victoria—judgment Delivered
Outcome
appeal allowed
Legal Topics
Divorce, Desertion, Separation Agreements
Family Law Divorce Desertion Separation Agreements

Case Brief

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Parties

George Leslie Powell

Appellant; Petitioner

Alice Louisa Powell

Respondent

Procedural Posture

Appeal / Appeal From Supreme Court of Victoria—judgment Delivered

Legal Issues

  1. 1 Does refusal by a spouse to resume cohabitation after expiry of an agreed period of separation constitute desertion within the meaning of s. 75(a) of the Marriage Acts 1928-1941 (Vict.)?
  2. 2 Whether desertion can arise after an agreed separation for a limited period has ended and one spouse refuses to restore the matrimonial relationship.

Ratio Decidendi

Where spouses separate by agreement for a limited period, the expiry of that period terminates consent. If one spouse then refuses, without cause, to resume cohabitation despite the other's bona fide request, this constitutes desertion for purposes of s. 75(a) of the Marriage Acts, and may ground divorce, even if there has been no reestablishment of a common home.

Court Disposition

appeal allowed

Orders

  • 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.