Lang v Lang
| Jurisdiction | UK Non-devolved |
| Judgment Date | 1953 |
| Date | 1953 |
| Court | Privy Council |
Australia (Victoria) - Husband and wife - Divorce - Desertion - Constructive desertion - Inference from conduct - Proof of intention - Rebuttable - Intention from conduct not rebutted by co-existing desire that spouse should remain - Conflicting “intention” and “desire” -
Where a husband's conduct towards his wife was such that a reasonable man would know — that the husband must have known — that in all probability it would result in the departure of the wife from the matrimonial home, that, in the absence of rebutting evidence, was sufficient proof of an intention on his part to disrupt the home, and the fact that he nevertheless desired or requested her to stay did not rebut the intention to be inferred from his acts — that he intended to drive her out — and he was guilty of constructive desertion. A man may have an intention which conflicts with a desire, and here his intention was to act as he did, whatever the consequences, though he might have hoped and desired that they would not produce their probable effect.
View in Bain v. Bain (
The two conflicting views on constructive desertion to be extracted from the English authorities as expressed by Denning L.J. in Hosegood v. Hosegood (
APPEAL (No. 26 of 1953), by special leave granted on May 28, 1953, from a judgment of the High Court of Australia (Dixon C.J., Fullagar and Kitto JJ.) (February 23, 1953) dismissing the appeal of the present appellant from a judgment of the Supreme Court of Victoria (Lowe J.) (September 22, 1952) whereby it was adjudged that the present respondent should be granted a decree nisi of dissolution of marriage with costs on the ground of the present appellant's constructive desertion.
The parties were married in South Australia on November 8, 1924. On October 29, 1951, the wife presented a petition to the Supreme Court of Victoria praying for a divorce on the ground that her husband had without just cause or excuse wilfully deserted her and had continued in desertion for three years and upwards.
The appellant denied that he had been guilty of constructive desertion.
The facts appear from the judgment of the Judicial Committee.
1954. July 19, 20, 21, 22, 26, 27, 28, 29 and 30. James Stirling, B. Buller-Murphy (Australia) and B. J. Wakley for the appellant.
J. E. S. Simon Q.C. and John Latey for the respondent.
November 10. The judgment of their Lordships was delivered by LORD PORTER. The matrimonial law of the State of Victoria differs notably from that of England. The main differences are: (1) that cruelty without more has in Australia never been a ground for divorce a vinculo as it has been in England since 1937, but only for a judicial separation; (2) that desertion which, without more, became a ground of divorce in England in 1937, has been such a ground a vinculo in Victoria as long ago as 1890 by provisions which, so far as relevant to this case, were re-enacted without alteration by statutes of 1915 and 1928.
The following are the provisions of the
“(75) Any married person who at the time of the institution of the suit has been domiciled in Victoria for two years and upwards, may present a petition to the court praying on one or more of the grounds in this section mentioned that his or her marriage with the respondent may be dissolved — (a) on the ground that the respondent has without just cause or excuse wilfully deserted the petitioner and without any such cause or excuse left him or her continuously so deserted during three years and upwards; (b) on the ground that the respondent has during three years and upwards been an habitual drunkard, and either habitually left his wife without means of support, or habitually been guilty of cruelty towards her … (d) on the ground that within one year previously the respondent … has repeatedly … assaulted and cruelly beaten the petitioner; … If in the opinion of the court the petitioner's own habits or conduct induced or contributed to the wrong complained of … such petition may be dismissed.”
By section 77 of the same Act, a wife may present a petition for dissolution of marriage, inter alia, on the grounds of adultery coupled with cruelty, and under sections 63 and 64, a decree of judicial separation may be granted, inter alia, on the ground of cruelty. Unless, however, the cruelty can be brought within the terms of sections 75 (b) or (d) or 77 (set out above); it is not a ground for dissolution of marriage under Victorian law.
If cruelty had been a sufficient ground for divorce in the State of Victoria, then assuming, as seems to their Lordships very probable, that the wife's health suffered from the treatment she received, the case would have presented no complications. As it is, the wife, who had been brutally ill-used and insulted over a long period, since she was the first to leave the matrimonial home had to found her petition on desertion; and in order to succeed had to establish what is described as “constructive desertion.”
At this point, and before proceeding with any summary of the facts, their Lordships think it desirable to make certain general observations about the law (a) of desertion; (b) of so called “constructive desertion.” Both in England and in Australia, to establish desertion two things must be proved: first, certain outward and visible conduct — the “factum” of desertion; secondly, the “animus deserendi” — the intention underlying this conduct to bring the matrimonial union to an end.
In ordinary desertion the factum is simple: it is the act of the absconding party in leaving the matrimonial home. The contest in such a case will be almost entirely as to the “animus.” Was the intention of the party leaving the home to break it up for good, or something short of, or different from that?
Since 1860 in England, and for a long time in Australia, it has been recognized that the party truly guilty of disrupting the home is not necessarily or in all cases the party who first leaves it. The party who stays behind (their Lordships will assume this to be the husband) may be by reason of conduct on his part making it unbearable for a wife with reasonable self-respect, or powers of endurance, to stay with him, so that he is the party really responsible for the breakdown of the marriage. He has deserted her by expelling her: by driving her out. In such a case the factum is the course of conduct pursued by the husband — something which may be far more complicated than the mere act of leaving the matrimonial home. It is not every course of conduct by the husband causing the wife to leave which is a sufficient factum. A husband's irritating habits may so get on the wife's nerves that she leaves as a direct consequence of them, but she would not be justified in doing so. Such irritating idiosyncrasies are part of the lottery in which every spouse engages on marrying, and taking the partner of the marriage “for better, for worse.” The course of conduct — the “factum” — must be grave and convincing.
In the present case there is not the slightest question that the “factum” is sufficient. The facts are not in dispute. There are in effect concurrent findings that the husband grossly ill-used and insulted his wife over a period of five years and gave her ample justification for leaving him.
The whole and sole question is whether the wife has proved the necessary animus or intent on the part of the husband. How should that animus be ascertained? In particular, (1) is it enough for her to show a course of conduct on the part of the husband which in the eyes of a reasonable man would, by making her life insufferable, be calculated to drive the wife out, the husband's actual intention being immaterial on the footing that every man is presumed to intend the natural and probable consequences of his acts? Or (2) should the objective criterion of the reasonable man's reactions be rejected on the footing that the real question is, did this particular husband (who may not have been reasonable) know that his conduct, if persisted in, would in all human probability result in the wife's departure — it being remembered that it is possible (human nature being what it is) for such knowledge on the husband's part to co-exist with a desire that she should stay, since people often desire a thing but deliberately act in a way which makes that desire unrealizable. Or again (3), should inferences which would naturally be drawn be wholly disregarded and an intention which would naturally be drawn from the husband's conduct negatived provided there is proved to exist, de facto, on his part a genuine desire (however illogical or impossible it may be to square such a desire with his conduct) that the matrimonial union should continue? On this view the husband's...
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