SEPARATION AGREEMENTS AND GROUNDS FOR DIVORCE
| Date | 01 November 1956 |
| DOI | http://doi.org/10.1111/j.1468-2230.1956.tb00382.x |
| Author | L. J. Blom‐Cooper |
| Published date | 01 November 1956 |
SEPARATION AGREEMENTS AND
GROUNDS
FOR
DIVORCE
I-DESERTION
AND
TIE
SEPARATION AGREEMENT
THE
result produced by the existence of a separation agreement
made between spouses, which has the effect of defeating a petition
for divorce-even undefended-brought on the grounds
of
deser-
tion,’ is neatly illustrated by a decision of Gavan Duffy
J.
in
Eva
v.
EvaZ
in the Supreme Court of Victoria.
In
that case it was found as a fact that the husband had
left the wife without her consent and with the intention of putting
an end to the matrimonial relationship. The day before he left,
however, the husband had executed an agreement with the wife
whereby the husband had made financial provisions for the wife,
Clause
2
of the deed including the following stipulation
:
-
“The husband and the wife shall not molest
or
annoy
or
in
any way interfere with each other in respect of anything
whatever nor shall either of them at any time during the con-
tinuance of the agreement require
or
by any means endeavour
to compel the other to cohabit with him
or
her.”
The presence of this clause prevailed upon Gavan Duffy
J.
to
reserve judgment in which he reluctantly rejected the petition.
It
is
a
well-established principle
of
English law that a separation
deed executed by a husband and wife containing the usual clause
that the spouses agree thereafter
to
live separate and apart
is
consensual in nature and prevents desertion runningJ
so
long as
the deed remains effective.‘ The rule will not apply if the deed
1
Halebury’s
Laws
of
England,
3rd ed. (1966) Vol. 12, pp. 261-263; Rayden
on
Dioorce,
6th ed.,
.
144; Latey on
Dioorce,
14th ed., pp. 119
et de
.;
Phillips’
Practice
of
tRe Dioorce Division,
4th ed., pp. 23
el seq.;
Eversfey
on
Domestic Relations,
6th ed., pp. 279-280; Tolstoy on
Divorce,
3rd ed.,
pp. 47-60; Warmingtol;l:s
Divorce Law,
2nd ed., p.
48;
Hnmnwi,
Family
Law,
p. 254; Joske, Desertion Despite Defp of Separation,” (1948)
22
Australian Law Journal
38;
Ithel Davies, Separation Agreements and
Divorce,” (19%) 106 Law Journal 247,
Royal
Commission
on
Marriage and
prce, Report 1951-196!, Cmd. 9678. Para. 167. p.
60;
see Kahn-Freund,
The obtaining of
a
ghet
(a
Jewish
Bill
of
Divorcement) which is not recognised
as
validly dissolving the marriage.
operates
as
an agreement by one spouse that the other should live separate
and apart and hence bars desertion running,
Joseph
v.
Joseph
[1953]
1
W.L.R. 1182.
2
[1954] A.L.R. 100; [1954] V.L.R. 105; noted briefly in (1054) 28 Australian
Law Journal 382.
3
Scottish
law
gives rise to no such diliicultiea. An agreement
to
separate (which
is unenforceable and revocable at pleasure)
is
no
defence
to
a
petition
for
divorce
by
reason of desertion:
A.B.
v.
C.D.
(1863)
1G
D.
111;
Mitchell
v.
Mitchell
(O.H.)
1931 S.L.T. 484.
4
If
the deed
has
been repudiated
or
put an end to
by
both parties and
onc
of
them
haa
manifested an intention
to
abandon the other desertion
revives.
Divorce Law Reform?
p.
673,
ante.
688
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