N2425

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

MC. NO. 04 OF 2002

IOELA JACK
(Petitioner)

-vs-

MIRIAM JACK
(Respondent)

LAE: KIRRIWOM, J
2003: 03rd & 09th JULY

Counsel:
Mr Ousi for the Petitioner 
No appearance for the Respondent 

9th July 2003

KIRRIWOM, J:

1.	This is an uncontested suit for divorce between the Petitioner and the Respondent. Both parties are domiciled in Papua New Guinea as they are both automatic citizens from Milne Bay Province.

2.	The parties were legally married on 13th November 1982 under the Marriage Act Ch. 280 and have two children, both males who were born on 9th December 1987 and 21 August 1990 respectively. 

3.	The facts that the Petitioner relies upon as constituting grounds for dissolution of the marriage are that the Respondent left the matrimonial home in April 1994 promising never to return and the parties have lived separately and apart ever since. At the time the Respondent left the Petitioner she took with her the younger child Richard who has since been with her. The first child Benjamin was left with the Petitioner and he has since been with him.

4.	The parties have not communicated with each other since the Respondent left and the possibilities of reconciliation and reunion are nil. In his evidence the Petitioner stated that he made no contact with the Respondent and decided to keep it that way as he did not wish to create disharmony for her who has moved on with her life and he respected her privacy. Likewise he too confessed that he was living in a de facto relationship since the break-up of their marriage and from this union he has two other children and he did not wish to create complication with his own relationship.

5.	The Petitioner prefers that the arrangement as to children must remain as they are presently with the boys being at liberty to move freely between them. Benjamin Jack presently lives in Alotau with the Petitioner’s sister where he is regularly supported by the Petitioner who deposits K50 into his sister’s account through automatic pay deduction by his employer every pay day. I have no reason to doubt the Petitioner’s evidence in this regard. As the Branch Manager for Elcom or PNG Power in Lae I have no doubt that this is all within his authority to effect such an arrangement. He also said that sometimes Benjamin shares the money with Richard his young brother.

6.	Richard Jack is also resident in Alotau with the mother. The Respondent Miriam Jack nee Bernard is employed as the Clerk of Court at Alotau. According to the Petitioner she has not placed any demand upon him for the support and maintenance of Richard and he believed she was fairly comfortable and capable of looking after Richard well on her own as she has demonstrated to date. However if his assistance was required, he would no doubt extend his support to Richard.

7.	Both the Petitioner and the Respondent are from adjoining villages outside Alotau town and the children were born into both their extended families. He wishes that this relationship between the children and their grandparents and relatives on both sides must be or remain fairly liberal and open so that the children can move between their relatives as freely as they please. This is necessary for the two boys whose future as far succession to land is concerned, so that their right to inheritance from the mother is not jeopardised as their society is a matrilineal one.

8.	The current placement of Benjamin in Alotau was a recent arrangement by the Petitioner as the result of the son getting mixed up with the wrong crowd in Lae as student attending St. Paul’s Lutheran School. The Petitioner considered it in the best interest of his son to attend school while in Alotau his birth-place where he would not be too exposed to such bad influences from peer groups often found in cosmopolitan centres like Port Moresby and Lae which are made up of children of all tribal and ethnic origins where problem of discipline is endemic and rampant. Perhaps the other more humane and untold reason is the fact that big brother and small brother close proximity and growing together would be an added bonus for Benjamin who also needed the love of his mother apart from the companionship of his young brother who also lived in Alotau to give him a new inspiration to meet the challenges of life in this time of trials and experiments in his growing years as he moves on to his maturity.

9.	I am satisfied that there is no collusion between the parties to bring this marriage to end for ulterior motives or other benefits other than the fact that the marriage has irretrievably broken, not consummated since the separation and there is no likelihood of cohabitation as husband and wife ever resuming in any imaginable future as there is no possibility of reconciliation. This union that God has created could not stay intact as the divine and man made law dictate and is therefore futile to not acknowledge this fact. As Los, J said in Kiruhia v Kiruhia [1991] PNGLR 401 at 403 ‘this marriage is just an empty shell’ and to allow it to remain against the parties wishes would be in contravention of the moral dictates of modern society and will not be upholding the interest of justice to the parties whose lives have moved on quite substantially since then despite the legal bond. This Court must now do its earthly duty to ‘pick up and discard the abandoned empty shell’ and let the divine mercy deal with the rest hereafter.

10.	I have not heard the Respondent in this hearing as she was not present in person or by counsel. She has not entered an appearance. Counsel for the Petitioner relies on rule 82 of Matrimonial Causes Rules Ch. 282 and submits that she is to be deemed for the purpose of the law to consent to the divorce as service was duly effected on her of the Petition as record show. Rule 82 provides:

‘Where a person who is entitled to deny a fact alleged in a pleading filed in proceedings does not, in a pleading filed by him – 

(a)	deny the fact, expressed or by necessary implication; or 
(b)	state that he does not know and cannot admit the truth of the fact; or 
(c)	admit the truth of the fact;

he shall be deemed to have admitted the truth of the fact for the purpose of the proceedings.’

11.	The Petitioner said in his evidence that it was equally the Respondent’s desire to end this marriage and she undertook initially to file for divorce and his initiative in filing was to further that wish when she probably through over-commitment in her work failed to activate. The Respondent is by no means a person unfamiliar with the process of the Law. She is the Clerk of Court in Alotau where she has been so employed for quite a considerable period of time and she must be presumed to have conceded to divorce or would have acted otherwise if she had wished to be heard. She has not and I take this as acquiescence which means consent.

12.	I am further satisfied on the evidence before me that the parties have since the separation and desertion of one by the other, have lived separately and apart for over eight years going to nine. During the period of separation there has been no reconciliation or attempts to reconcile instigated by either of them so the minimum period of five years for qualification for divorce proceedings to lie under section 17(m) of the Matrimonial Causes Act Ch. 282 have been satisfied.

13.	I am satisfied that this marriage had ended long ago and it is now my humble or perhaps earthly duty to sever this invisible string that holds this empty shell protestingly together and undo what the law has joined as I am endowed with this duty to so do. Therefore notwithstanding the discretion statement filed by the Plaintiff as required by law I grant a decree nisi in accordance with section 58 of the Act for the dissolution of this marriage which is to be made absolute in according with section 60 as counsel can be heard.

14.	I further order that until the child Benjamin Jack finishes school and becomes an independent person or is self-sustaining as an adult which age is at 21, the Petitioner shall have custody of Benjamin and provide for his support and well-being wheresoever he is conveniently placed for legitimate reasons with liberty to move freely between the parties and their extended families. 

15.	I award custody of Richard to the Respondent who shall be primarily responsible for his welfare and up-bringing with reasonable access rights to the Petitioner.

16.	I further order that the Petitioner shall contribute to the costs of supporting the child Richard in his schooling and medical needs on a mutually agreed terms should such be requested of him by the Respondent. 

17.	These orders are made to facilitate the wish and aspiration of the parties. While the marriage is now at end, the parties are at liberty to seek further orders of the Court as regards custody and maintenance of both Benjamin and Richard until both children have reached the age of maturity or have completed school, whichever occurs first. 

18.	There are no properties to be settled between the parties. 

Decree nisi is granted. 

Lawyer for the Petitioner			: Warner Shand Lawyers
No appearance for the Respondent: