Thomson v Thomson [1953] HCA 45

Thomson v Thomson [1953] HCA 45

The onus rests on the petitioner to prove the continuance of desertion for the full statutory period. In this case, the respondent’s return to the matrimonial home with the intention of resuming her place as wife and performing domestic duties was inconsistent with a continuing animus deserendi. As the petitioner failed to prove continuous desertion for three years or more, no ground for dissolution of marriage was established.

Parties
Appellant/petitioner: Donald Finlay Fergusson Thomson; Respondent: Gladys Winifred Thomson
Jurisdiction
Australia
Judgment Date
18 August 1953
Procedural Posture
Appeal / Appeal From Supreme Court of Victoria; Decision at Trial Level by Sholl J.; High Court Judgment on Appeal
Outcome
Appeal dismissed with costs.
Legal Topics
Matrimonial Causes, Dissolution of Marriage, Desertion, Burden of Proof (onus), Cohabitation, Resumption of Marital Relations
Family Law Matrimonial Causes Dissolution of Marriage Desertion Burden of Proof (onus) Cohabitation Resumption of Marital Relations

Case Brief

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Parties

Donald Finlay Fergusson Thomson

Appellant/petitioner

Gladys Winifred Thomson

Respondent

Procedural Posture

Appeal / Appeal From Supreme Court of Victoria; Decision at Trial Level by Sholl J.; High Court Judgment on Appeal

Legal Issues

  1. 1 Whether desertion for the statutory period was established for the purposes of dissolution of marriage despite partial resumption of cohabitation
  2. 2 On whom lies the onus of proving the continuance or termination of desertion during the relevant period

Ratio Decidendi

The onus rests on the petitioner to prove the continuance of desertion for the full statutory period. In this case, the respondent’s return to the matrimonial home with the intention of resuming her place as wife and performing domestic duties was inconsistent with a continuing animus deserendi. As the petitioner failed to prove continuous desertion for three years or more, no ground for dissolution of marriage was established.

Court Disposition

Appeal dismissed with costs.

Orders

  • Appeal dismissed with costs.