Domestic Case Law

In the Marriage of Pavey Family Court (1976)

Divorce and dissolution of marriage

Mr. and Mrs. Pavey were married in 1945 and lived in the same matrimonial house for more than thirty years. Mr. Pavey had provided Mrs. Pavey with housekeeping money for the matrimonial home, but ceased this practice after an incident in April 1974. As a result, Mrs. Pavey successfully applied to the Magistrates’ Court for a maintenance order against her husband. The marriage continued to deteriorate, and Mrs. Pavey applied to the Family Court of Australia for dissolution of the marriage in 1976, which the Court denied. Mrs. Pavey then appealed to the Full Court of the Family Court of Australia, which allowed the appeal. The Court found that the lower court had erred in finding that the marital relationship had not broken down such that dissolution was appropriate. Extending the reasoning in In the Marriage of Todd (No. 2), the Court held that there are several signs indicating a close marital relationship, such as “living under the same roof, sexual relations, mutual protection, nurturing and supporting a child of the marriage, and recognition both in public, and private of the relationship.” However, the Court also found that all the constituent elements need not be shown in establishing the existence of a matrimonial relationship due to the natural ebbs and flows of a marriage, and not every relationship is the same. Therefore, when determining whether separation has in fact occurred, it is more useful to compare and contrast the nature of the relationship before and after the separation. Thus, the Court found that the fact that Mr. Pavey had been ordered to make maintenance payments demonstrated that marriage had broken down, even though both spouses continued to live in the matrimonial home and perform certain chores for each other.