Adkins v Adkins [1948] HCA 34

Adkins v Adkins [1948] HCA 34

Where a husband consents by agreement to refrain from requiring marital intercourse for a defined period, the wife's refusal during that period is justified and not 'non-justifiable' desertion under the Matrimonial Causes Act 1860-1940 (Tas.). Such an agreement is not void as against public policy, and the period covered thereby cannot count toward the statutory period of desertion required for divorce.

Parties
Appellant: Thomas Sinclair Adkins; Respondent: Thelma Leila Adkins
Jurisdiction
Australia
Procedural Posture
Divorce Petition (dissolution of Marriage) / Appeal From the Full Court of the Supreme Court of Tasmania to the High Court of Australia
Outcome
appeal dismissed
Legal Topics
Desertion, Refusal of Marital Intercourse, Matrimonial Agreements, Public Policy in Matrimonial Law
Family Law Desertion Refusal of Marital Intercourse Matrimonial Agreements Public Policy in Matrimonial Law

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Parties

Thomas Sinclair Adkins

Appellant

Thelma Leila Adkins

Respondent

Procedural Posture

Divorce Petition (dissolution of Marriage) / Appeal From the Full Court of the Supreme Court of Tasmania to the High Court of Australia

Legal Issues

  1. 1 Does a wife's refusal to permit marital intercourse amount to desertion under The Matrimonial Causes Act 1860-1940 (Tas.) when the husband has consented to such refusal for a period under an agreement?
  2. 2 Is an agreement that relieves a spouse from the obligation of sexual intercourse void as contrary to public policy?

Ratio Decidendi

Where a husband consents by agreement to refrain from requiring marital intercourse for a defined period, the wife's refusal during that period is justified and not 'non-justifiable' desertion under the Matrimonial Causes Act 1860-1940 (Tas.). Such an agreement is not void as against public policy, and the period covered thereby cannot count toward the statutory period of desertion required for divorce.

Court Disposition

appeal dismissed

Orders

  • The appeal is dismissed.