Practitioners in family law should note that a spouse's conditional refusal to cohabit, where the condition imposed is one the other spouse is not legally obliged to accept, may constitute desertion from the date the condition is rejected.
Later decisions that cite Hall v Hall
Arthur Thomas Hall Petitioner, Appellant; and Jessie Hall Respondent, Respondent.
H C of A
On appeal from the Supreme Court of Victoria.
14 March 1917
Griffith C.J., Barton, Isaacs and Rich JJ.
Woolf, for the appellant.
Griffith C.J.
Unfortunately, in this case we cannot derive any assistance from the opinion of the Judges of the Full Court, which proceeded upon a misapprehension as to the date of the events relied upon to establish desertion. The petitioner married a wife who at the time was pregnant, but not by him. He believed that she was pregnant by him, and married her, thinking it was his duty to do so. He had not then any home to which to take a wife, and the respondent returned to her own people. Some time afterwards, and before the child was born, she wrote to him confessing her fault, telling him that he was not the father of the child and asking him to forgive her. He replied that he was willing to forgive her and take her to the home which he had then made, but that he would not receive or maintain the expected child. Later, and still before the birth of the child, she again wrote to him, pointing out that under the circumstances they could never live happily together, that the matter would never be forgotten, suggesting that it would be as well for them to stay as they were and not live together at all, and stating that, as he knew, she must stick to those who had promised to stick to her, and that that was what she intended to do, namely, stick to her own people. The petitioner wrote in reply, giving her the alternative, "You must either live with the child and be divorced from me, or live with me and be parted from the child. So make up your mind which it is to be. I don't like parting with you, but I could never father another man's child." To that letter the respondent made no reply.
Under those circumstances what inference ought to be drawn? It seems to me that the wife's refusal to go to his home was in the first instance an absolute refusal, unless he complied with the condition that the child should live with her. He replied that he could not comply with that condition. Her refusal then stood as an absolute refusal, and, if that is the right view, desertion commenced at the date of the refusal, unless it was justified by some wrongful act of the petitioner.
The point is made that it is the duty of a husband under such circumstances to receive the child into his home. Is that so? Suppose that a man marries a woman believing her to be of untainted character, and after marriage discovers that she has an illegitimate child, is he bound to receive that child into his home? I think not. And I think, further, that if at the time when the husband discovers that fact the wife is away from him, and on being asked to come to his home refuses to do so unless he consents to her bringing the child with her and he refuses his consent, she is guilty of desertion. Does it make any difference that the child is unborn at the time when he makes the discovery that he is not the father of it and when the wife refuses to return without it? On principle I cannot see any reason for the distinction. But, of course, the instincts and duties of humanity are not to be disregarded. When the child is born, the husband could not insist that the mother should desert it, but would be bound to allow some reasonable time for making arrangements for its welfare and possibly to take part in those arrangements. The attitude of the wife may, however, be such as to justify the husband in acting on her refusal as absolute. Under the circumstances of this case I think that the proper inference to be drawn from the respondent's letter, which was written about two months before the child was born, and her subsequent silence, is that she absolutely refused to go back to the petitioner unless he agreed to take the child into his home and bring it up. In refusing to accept that condition I think that the petitioner was not guilty of any wrongful act which can be regarded as reasonable cause or excuse for her refusal to go to him. It seems to me, therefore, that a case of desertion without reasonable cause or excuse was established, and that the petitioner is entitled to the relief he asks.
The appeal must be allowed.
Barton J.
With great reluctance I come to the same conclusion for the same reasons. The case is a very painful one.
Isaacs J.
I agree.
Rich J.
I agree.
Appeal allowed. Decree nisi for dissolution of marriage.
Solicitors for the appellant, Connelly & Crocker, for Connelly, Tatchell & Dunlop, Kerang.