2. Desertion without legal cause for two years or more.
3. Cruelty or abusive treatment of one spouse by the other.
It is an absolute bar to a suit for judicial separation that the petitioner has committed adultery since the marriage.
Divorce.—Absolute divorces completely dissolving the marriage bond are granted by the courts of every State in Australia. As every State has its separate statutes on the subject, which set forth the legal causes for divorce, we shall consider such causes in our discussion of each State separately.
Defences.—In all the States condonation of a matrimonial offence, which is a legal cause for divorce, is a good defence to the petition.
It is also a sufficient defence for the respondent to show that the offence complained of was committed by the connivance or active consent of the petitioner.
Connivance in adultery as a bar to divorce is founded on the doctrine volenti non fit injuria, the consent consisting in acquiescence, active or passive, in the adulterous intercourse. Passive acquiescence is a sufficient bar, provided it was carried out with the intention that the husband or wife would be guilty; but it must be something more than mere inattention, indifference or dulness of apprehension. The presumption, where the facts are equivocal, is in favour of absence of intention.
One spouse must not invite the other to commit adultery; but he or she may permit the licentiousness of the other spouse to have its full scope without being guilty of connivance.
It is not connivance to watch for the purpose of discovering a suspected fact so as to make conviction certain.
Collusion.—An illegal agreement and co-operation between a petitioner and a respondent in a divorce action to enable the petitioner to obtain a judicial dissolution is a fraud upon the court. Upon such collusion appearing the court, at its own instance, will dismiss the petition.