Blanche Evelyn Ogston v Maurice Ogston [1935] HCA 58

Blanche Evelyn Ogston v Maurice Ogston [1935] HCA 58

Where, over a period of three years, the husband failed with sufficient frequency to make periodical payments as required by a maintenance order such that the failure was habitual when viewed as a whole, and the obligation to pay arose from the same instrument as the separation, the statutory requirements for dissolution of marriage under sec. 23(e)(iii) are met.

Parties
Appellant; Petitioner: Blanche Evelyn Ogston; Respondent: Maurice Ogston
Jurisdiction
Australia
Procedural Posture
Appeal / Judgment on Appeal to High Court of Australia From Supreme Court of Western Australia
Outcome
appeal allowed
Legal Topics
Divorce, Maintenance, Separation, Failure to Pay Maintenance, Interpretation of 'repeatedly and Habitually'
Family Law Divorce Maintenance Separation Failure to Pay Maintenance Interpretation of 'repeatedly and Habitually'

Case Brief

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Parties

Blanche Evelyn Ogston

Appellant; Petitioner

Maurice Ogston

Respondent

Procedural Posture

Appeal / Judgment on Appeal to High Court of Australia From Supreme Court of Western Australia

Legal Issues

  1. 1 Whether the respondent's failure to make periodical payments as required by a separation and maintenance order was 'repeated and habitual' within the meaning of sec. 23(e)(iii) of the Divorce and Matrimonial Causes Ordinance 1863 (W.A.), as amended.
  2. 2 Whether the obligation to pay must arise from the same instrument as the separation, for the purposes of sec. 23(e).
  3. 3 Meaning of 'period aforesaid' and interpretation of 'during' in the statutory context.

Ratio Decidendi

Where, over a period of three years, the husband failed with sufficient frequency to make periodical payments as required by a maintenance order such that the failure was habitual when viewed as a whole, and the obligation to pay arose from the same instrument as the separation, the statutory requirements for dissolution of marriage under sec. 23(e)(iii) are met.

Court Disposition

appeal allowed

Orders

  • Decree nisi for dissolution of marriage made; to become absolute in three months.
  • Cause remitted to Supreme Court of Western Australia.