Family Law

Decree nisi would be pronounced on the wife's petition for divorce on the basis of the husband's admitted adultery, rather than on the husband's petition based on the wife's behaviour which he said was unreasonable for him to be expected to live with. 

The Family Court found overwhelming evidence that the husband had been committing adultery for over twenty years, unknown to the wife until 8 May 2017, but the wife had not behaved in the way alleged by the husband.

The parties married in March 1982 and separated in March 2017. In August 2017, the divorce unit issued a petition filed by the wife in which she petitioned for divorce on the ground of the husband's adultery, in particular, with her closest friend, Y. In September, the divorce unit issued a petition for a divorce filed by the husband. His statement of case set out four particular allegations: (i) aggressive and unprovoked behaviour by the wife; (ii) financial deceit by transferring money due to him into her own account without his permission or knowledge; (iii) the wife had shown no regard to his feelings and well-being; and (iv) the wife showed little or no regard to the hygiene around the family home in relation to the dogs in the home. The husband sought the dismissal of the wife's petition for the matter to proceed on his own petition.

Issues and decisions 
Whether decree nisi should be pronounced on the wife's or the husband's petition. There was overwhelming evidence to establish that the husband had been committing adultery with Y for over twenty years, but that the wife had not known that had been taking place until the husband had told her on 8 May 2017. There had been occasions when the wife had had suspicions, but they had always been allayed by the husband or by others who had not believed that Y would behave in such a way (see [118] of the judgment).

There had been times when the wife had been suspicious, but she had not gone beyond suspicion until 8 May 2017. Most importantly, the wife was a witness of truth and there was no evidence of any dishonesty on her part in relation to her marriage or business affairs, or in her relationships with any of the people involved in the case. In contrast, the husband had lied throughout his marriage to his wife and had been deceitful to his children, to Y's family and to other members of their families. He had lied throughout the proceedings. The conversation on 8 May had clearly happened and it had been on that occasion that, for the first time, the wife had learned of the adultery (see [121], [122] of the judgment).

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Cleary v Cleary and Hutton [1974] 1 WLR 73 applied; Owens v Owens [2018] 1 FLR 1002 considered.

Karina Weller - Solicitor (NSW) (non-practising).