Fremlin v Fremlin [1913] HCA 25

Fremlin v Fremlin [1913] HCA 25

The petitioner retained his domicile of origin in New South Wales as there was insufficient evidence of intention to abandon it in favour of Western Australia. The wife's continued refusal to live with him after 1906 constituted desertion under the Matrimonial Causes Act 1899 (NSW), and the prior suit did not...

Source-derived case information.

Parties
Appellant; Petitioner: Reginald William Fremlin; Respondent: Marie Louise Fremlin
Jurisdiction
Australia
Judgment Date
15 April 1913
Procedural Posture
Divorce Petition (appeal) / Appeal From Decision of Supreme Court of New South Wales
Outcome
Appeal allowed; decree nisi for dissolution of marriage granted.
Legal Topics
Divorce, Domicil, Matrimonial Causes, Desertion, Costs in Divorce Proceedings
Family Law Divorce Domicil Matrimonial Causes Desertion Costs in Divorce Proceedings

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Parties

Reginald William Fremlin

Appellant; Petitioner

Marie Louise Fremlin

Respondent

Procedural Posture

Divorce Petition (appeal) / Appeal From Decision of Supreme Court of New South Wales

Legal Issues

  1. 1 Whether the petitioner retained domicile of origin in New South Wales or acquired a new domicile in Western Australia
  2. 2 Whether the respondent's refusal to live with the petitioner in Western Australia constituted desertion under section 13 of the Matrimonial Causes Act 1899 (NSW)
  3. 3 Whether a prior unsuccessful suit for divorce on the ground of desertion precludes a subsequent suit on the same ground without resumption of cohabitation

Ratio Decidendi

The petitioner retained his domicile of origin in New South Wales as there was insufficient evidence of intention to abandon it in favour of Western Australia. The wife's continued refusal to live with him after 1906 constituted desertion under the Matrimonial Causes Act 1899 (NSW), and the prior suit did not preclude bringing a new suit for desertion after its dismissal, as cohabitation had only been suspended, not terminated. The respondent was entitled to her costs, there being no evidence she had the means to pay them.

Court Disposition

Appeal allowed; decree nisi for dissolution of marriage granted.

Orders

  • Decree nisi for dissolution of marriage granted to the petitioner.
  • Petitioner to pay the respondent's costs of the hearing and of the appeal.