Kellway v Kellway [1937] HCA 66

Kellway v Kellway [1937] HCA 66

As the parties had agreed to resume cohabitation and the husband's refusal to carry out the agreement evidenced a final intention to terminate the matrimonial relationship, his conduct amounted to desertion on his part without just cause or excuse, satisfying the ground for dissolution under sec. 75(a) of the Marriage Act 1928 (Vic).

Parties
Appellant, Petitioner: Dorothy Margaret Mary Kellway; Respondent: John Evelyn Kellway
Jurisdiction
Australia
Procedural Posture
Divorce Petition (appeal) / Appeal From Supreme Court of Victoria
Outcome
Appeal allowed. Decree nisi for dissolution granted.
Legal Topics
Divorce, Desertion, Matrimonial Relationship, Appellate Review
Family Law Divorce Desertion Matrimonial Relationship Appellate Review

Case Brief

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Parties

Dorothy Margaret Mary Kellway

Appellant, Petitioner

John Evelyn Kellway

Respondent

Procedural Posture

Divorce Petition (appeal) / Appeal From Supreme Court of Victoria

Legal Issues

  1. 1 Whether the husband's refusal to carry out an agreement for reconciliation constituted desertion under sec. 75(a) of the Marriage Act 1928 (Vic).
  2. 2 Whether the trial judge's findings on the intention of the parties should be reversed on appeal.

Ratio Decidendi

As the parties had agreed to resume cohabitation and the husband's refusal to carry out the agreement evidenced a final intention to terminate the matrimonial relationship, his conduct amounted to desertion on his part without just cause or excuse, satisfying the ground for dissolution under sec. 75(a) of the Marriage Act 1928 (Vic).

Court Disposition

Appeal allowed. Decree nisi for dissolution granted.

Orders

  • Order appealed from discharged except as to costs.
  • Decree nisi for dissolution of the marriage, not to be made absolute until three months from pronouncement.