Reginald Alfred Waghorn v Miriam Dorothy Waghorn [1942] HCA 1

Reginald Alfred Waghorn v Miriam Dorothy Waghorn [1942] HCA 1

Desertion by a spouse is not terminated as a matter of law by the subsequent adultery of the deserted spouse if the deserting spouse is unaware of or uninfluenced by the adultery. Each case must be determined on its facts. Following the reasoning in Herod v. Herod and Earnshaw v. Earnshaw, the High Court departed from its earlier contrary decision in Crown Solicitor (S.A.) v. Gilbert to align with English authority and for uniformity.

Parties
Appellant / Petitioner: Reginald Alfred Waghorn; Respondent: Miriam Dorothy Waghorn
Jurisdiction
Australia
Procedural Posture
Divorce Petition / Matrimonial Cause / Appeal From Supreme Court of New South Wales
Outcome
appeal allowed
Legal Topics
Divorce, Desertion, Adultery, Matrimonial Causes Act 1899 1929 (n.s.w.)
Family Law Divorce Desertion Adultery Matrimonial Causes Act 1899 1929 (n.s.w.)

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Parties

Reginald Alfred Waghorn

Appellant / Petitioner

Miriam Dorothy Waghorn

Respondent

Procedural Posture

Divorce Petition / Matrimonial Cause / Appeal From Supreme Court of New South Wales

Legal Issues

  1. 1 Whether desertion is terminated as a matter of law by subsequent adultery of the deserted spouse when the deserting spouse was unaware of or uninfluenced by the adultery
  2. 2 Whether the High Court should follow its decision in Crown Solicitor (S.A.) v. Gilbert or the English decisions in Herod v. Herod and Earnshaw v. Earnshaw

Ratio Decidendi

Desertion by a spouse is not terminated as a matter of law by the subsequent adultery of the deserted spouse if the deserting spouse is unaware of or uninfluenced by the adultery. Each case must be determined on its facts. Following the reasoning in Herod v. Herod and Earnshaw v. Earnshaw, the High Court departed from its earlier contrary decision in Crown Solicitor (S.A.) v. Gilbert to align with English authority and for uniformity.

Court Disposition

appeal allowed

Orders

  • Order of the Supreme Court of New South Wales discharged
  • Case remitted to the Supreme Court to be dealt with according to law