McIlroy v McIlroy [1946] HCA 4

McIlroy v McIlroy [1946] HCA 4

The appeal was dismissed because the original separation was by mutual agreement under a deed of separation, and there was no evidence that the wife (petitioner) had accepted the husband's (respondent's) repudiation of that deed so as to end the consensual basis of the separation. In absence of such acceptance, the separation remained by consent and did not amount to desertion within the meaning of s. 75 (a) of the Marriage Act 1928 (Vict.). The petitioner failed to establish lack of consent to the separation for the relevant period.

Parties
Appellant; Petitioner; Wife: Agnes Roberta McIlroy; Respondent; Husband: James McIlroy
Jurisdiction
Australia
Procedural Posture
Appeal (divorce Dissolution of Marriage) / Final Judgment in High Court of Australia, on Appeal From Supreme Court of Victoria
Outcome
Appeal dismissed
Legal Topics
Divorce, Desertion, Separation Deed, Acceptance of Repudiation
Family Law Divorce Desertion Separation Deed Acceptance of Repudiation

Case Brief

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Parties

Agnes Roberta McIlroy

Appellant; Petitioner; Wife

James McIlroy

Respondent; Husband

Procedural Posture

Appeal (divorce Dissolution of Marriage) / Final Judgment in High Court of Australia, on Appeal From Supreme Court of Victoria

Legal Issues

  1. 1 Whether the separation of spouses that began by agreement under a deed of separation could later amount to desertion by the husband for the purposes of dissolution of marriage under s. 75 (a) of the Marriage Act 1928 (Vict.), if the wife did not accept the husband's repudiation of the deed.

Ratio Decidendi

The appeal was dismissed because the original separation was by mutual agreement under a deed of separation, and there was no evidence that the wife (petitioner) had accepted the husband's (respondent's) repudiation of that deed so as to end the consensual basis of the separation. In absence of such acceptance, the separation remained by consent and did not amount to desertion within the meaning of s. 75 (a) of the Marriage Act 1928 (Vict.). The petitioner failed to establish lack of consent to the separation for the relevant period.

Court Disposition

Appeal dismissed

Orders

  • The appeal is dismissed.
  • No decree for dissolution of marriage is granted.