Sharah v Sharah [1953] HCA 91

The decree for dissolution cannot stand as the trial judge failed to make any finding on the animus (intention) of the spouse charged, which is essential for constructive desertion. There was insufficient evidence before the appellate court to infer the necessary intention, and therefore a new trial is required.

Parties: Petitioner/respondent: Veronica Lilah Sharah; Respondent/appellant: Nicholas Joseph Sharah
Jurisdiction: Australia
Judgment Date: 12 December 1953
Procedural Posture: Matrimonial Causes / Appeal From Supreme Court of New South Wales
Outcome: appeal allowed in part; new trial ordered on wife's petition; otherwise appeal dismissed
Legal Topics: Constructive Desertion, Dissolution of Marriage

Family Law Constructive Desertion Dissolution of Marriage

Case Brief

Summary, issues, holding and outcome

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Parties

Veronica Lilah Sharah

Petitioner/respondent

Nicholas Joseph Sharah

Respondent/appellant

Procedural Posture

Matrimonial Causes / Appeal From Supreme Court of New South Wales

Legal Issues

1 Whether the respondent husband had the requisite intention (animus) to bring about a rupture of the matrimonial relation for constructive desertion.
2 Whether the facts found by the trial judge were sufficient to infer animus for constructive desertion.

Ratio Decidendi

Court Disposition

appeal allowed in part; new trial ordered on wife's petition; otherwise appeal dismissed

Orders

Order that the decree in the consolidated suits, insofar as it pronounced that the petitioner had sufficiently proved her petition and ordered dissolution of the marriage, be set aside.
Order a new trial of the suit instituted by the petitioner.