Diamond v Diamond [1915] ZATPD 38 (25 May 1915)

Husband and wife.-Judicial separation.-Setting aside.-Restitution of conjugal rights -Separate actions.

A wife, who was the innocent party, obtained a decree of judicial separation some seventeen years ago. No order had been made as to maintenance, and the parties had ever since lived apart. He now applied for an order setting aside the judicial separation with the object of suing her husband for divorce on the ground of malicious desertion. Held, that the application should be granted. A plaintiff cannot in an action for setting aside an order of judicial separation at the same time claim restoration of conjugal rights on the ground of malicious desertion. Two separate actions should be brought.