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Kiruhia v Kiruhia [1992] PNGLR 30 (22 November 1991)

Papua New Guinea Law Reports - 1992

[1992] PNGLR 30 - John Kiruhia v Barbara Kiruhia 

[1992] PNGLR 30

N1052

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

JOHN YAMBUTA KIRUHIA

V

BARBARA LUNGE KIRUHIA

Waigani

Los J

22 November 1991

MATRIMONIAL CAUSES - Dissolution of marriage - Ground of separation - Matrimonial Causes Act Ch 282, s 17.

MATRIMONIAL CAUSES - Dissolution of marriage - Maintenance of children - Whether formal orders should be made covering the period beyond 16th birthday.

Facts

The petitioner sought for a decree of dissolution of the marriage that the petitioner and the respondent went through in accordance with the rite of the Catholic Church at Wewak on 17 January 1976 on the ground of separation under s 17(m) of Matrimonial Causes Act Ch 282. The section reads:

"Subject to this Division, a petition under this Act by a party to a marriage for a decree of dissolution of the marriage may be based on one or more of the following grounds:

(m)     that the parties to the marriage have been separated and afterwards have lived separately and apart for a continuous period of not less than 5 years immediately preceding the date of the petition, and there is no reasonable likelihood of cohabitation being resumed."

The petitioner and the respondent had been separated since 18 February 1982, but since then the petitioner had on several occasions visited the children and the respondent and stayed over as necessary to see and be with the children when they resided at Kwikila, Boroko and Konedobu between 1982 and 1985. Hence, the respondent contended that such visits interrupted the period of separation and, therefore, the petition should be refused. Further, the respondent sought orders that the petitioner continue paying maintenance for the children, Melissa, born on 6 September 1976, and Jessica, born on 31 July 1978.

Issues

1.       Whether or not the decree of dissolution of marriage should be granted under the circumstances.

2.       Whether formal orders should be made for maintenance of the children covering the period beyond their 16th birthday.

Held

1.       The petitioner's actions from 1982 until the filing of the petition for dissolution of marriage show that he had no intention to resume the marriage relationship. The manifestation of the actions by the petitioner was that the marriage has ended. Under those circumstances, it would be most unfair to compel the marriage between the parties to continue when, in fact, they would continue to live apart. "It will only be an empty shell and it is no use forcing it."

2.       "I have found that the petitioner had stayed with the respondent and the children at different places for short periods. Does this mean [that] the separation has been interrupted? In law parties may live under the same roof yet the evidence may be clear that they are living separate lives in terms of marriage relationship. See Crabtree v Crabtree (1964) 5 FLR 307. The petitioner's reasons are clear, he wanted to be with the children. In my view spending one or two nights at the respondent's flat is too small a period to disturb the long period of separation since 1982."

3.       Accordingly, the decree of dissolution of marriage granted.

4.       Formal orders made for maintenance of the children covering a period of two years beyond their 16th birthdays to cover their studies either at a National High School or if not attending such school, then, the first two years of training towards employment.

Cases Cited

Crabtree v Crabtree (1964) 5 FLR 307.

Counsel

J Kemaken, for the petitioner.

M Kouro, for the respondent.

22 November 1991

LOS J: The petitioner and respondent went through a marriage ceremony in accordance with the rite of the Catholic Church at Wewak on 17 January 1976. They both come from the East Sepik Province though from different villages.

The petitioner seeks a decree of dissolution of marriage on the ground of separation. The respondent hotly contests the claim of separation. Section 17 of the Matrimonial Causes Act Ch 282 says:

"Subject to this Division, a petition under this Act by a party to a marriage for a decree of dissolution of the marriage may be based on one or more of the following grounds:

(m)     that the parties to the marriage have been separated and afterwards have lived separately and apart for a continuous period of not less than 5 years immediately preceding the date of the petition, and there is no reasonable likelihood of cohabitation being resumed."

The respondent acknowledges that there were occasional physical separation, but says these were for educational purposes. Other occasions were interrupted by the petitioner himself when he visited the respondent and the children at various places where the respondent and the children lived.

The separation began when the respondent and the children left the home at Goldie Barracks on the 18 February 1982. Since then they stayed at the following places:

1.       At Kwikila in 1982 as soon as they moved from Goldie Barracks and where the respondent took up a teaching position.

2.       At a Boroko flat in 1983 when the respondent was studying at UPNG.

3.       At Konedobu flat from 1984-85.

4.       At Gerehu Bible College in 1988 when the respondent took up Bible studies and she and the children resided at the college.

The petitioner was left at Goldie and later he lived at the following places:

1.       At Goroka Teachers College where he was a lecturer from 1983 to early 1984.

2.       In the UK for studies at the end of 1983 to end of 1984.

3.       At Goroka Teachers College again.

4.       At UPNG where he was lecturing.

Apart from the admission by the petitioner that he did visit the respondent and the children at Kwikila, he denies visiting and staying with the respondent and the children at the Boroko flat and the Konedobu flat. He says that when he returned from England he brought presents for the children, which he brought to the Konedobu flat and gave to the children before leaving to stay with his brother-in-law at a Doa Estate, Hiritano Highway. He admits that during a holiday in 1985 he went off with a female friend to Kimbe and that, when the respondent and the children heard about it, they went to Kimbe and took him to Port Moresby, but he denies staying with the respondent and the children as the respondent claims. He also says that when he came to teach at the university main campus at Waigani he did not stay with respondent and the children, but he visited to see the children. While at the UPNG campus he put a ban on visits by the respondent. This was put to the respondent and she admitted it by saying because "he was having de facto relationship with other women".

As to the commencement of the separation, both parties share the blame. The continued physical separation was caused both by necessity for education and by choice. Once the separation had started, there was no turning back. I am prepared to find that the petitioner had visited the children and the respondent at Kwikila, Boroko and Konedobu, and stayed over as necessary to see and be with the children. I observed the respondent in court during the lengthy hearing of this petition. She is a strong and forthright person. It is my view, therefore, that the petitioner could only see the children if he was to humble himself in a way he had done. But all his actions from 1982 to the filing of the petition for dissolution of marriage show that he has had no intention whatsoever to resume the marriage relationship. The fact that he is now in Canada with a different woman (the one he went with to Kimbe) and has two children from that relationship confirms that position.

As to the petitioner returning with the respondent and the children from Kimbe to Port Moresby, I do not put much weight on it. In the Papua New Guinea cultural setting, as the respondent and her line went to "recover" the husband, who in their view was "stolen" by another woman, the petitioner would not have any other choice but to follow the wishes of the respondent and her relatives. The respondent's evidence shows the petitioner's predicament. She said, "We confronted him and he got a shock. He surrendered to us."

The respondent relies on her strong religious convictions and argues that the marriage cannot be dissolved. It is not for me to pass judgment on this aspect. But the manifestation of the actions by the petitioner is that as far as he is concerned the marriage has ended. The respondent also has lived a life of a single parent since 1982. She speaks confidently with a clear direction as to what she wants and where she is going. While this a plus for her, by the same token it supports the evidence that the marriage has practically ended. It would be most unfair to compel the marriage between them when in fact they would only continue to live as they are now. It will only be an empty shell and it is no use forcing it.

I have found that the petitioner had stayed with the respondent and the children at different places for short period. Does this mean the separation has been interrupted? In law parties may live under the same roof yet the evidence may be clear that they are living separate lives in terms of marriage relationship. See Crabtree v Crabtree (1964) 5 FLR 307. The petitioner's reasons are clear, he wanted to be with the children. In my view spending one or two nights at the respondent's flat is too small a period to disturb the long period of separation since 1982. At the time of hearing and this decision the separation still continues.

As to who caused the beginning of the separation, it is irrelevant under the Act. Section 25(2) of the Act says:

"For the purposes of section 17(m) the parties to a marriage may be taken to have separated notwithstanding that the cohabitation was brought to an end by the action or conduct of one of the parties, whether constituting desertion or not."

I, therefore, grant the decree of dissolution of marriage as sought by the petitioner.

MAINTENANCE OF THE CHILDREN

Out of the marriage relationship, the petitioner and the respondent had two female children, Melissa, born on 6 September 1976, and Jessica, born on 31 July 1978. They both attend Tokarara High School. The respondent asks that the petitioner continue to pay for their maintenance while they are attending any educational institutions. The petitioner's counsel argues that there is no need for any formal order covering the period beyond the 16th birthday of each girl, because the petitioner knows his responsibility and has undertaken to look after them.

I think that the children will still need financial assistance whether they are attending a senior high school or any other institution after the school certificate examination. I would therefore make a formal order covering any two years of studies either at a senior high school or the first two years of a training towards employment.

The petitioner's salary is nearly K400 per fortnight. While in Canada he receives some allowance, but this is just for the period when he is there. His estimated fortnightly cost is around K300 per fortnight. He is willing to pay a total of K120 per fortnight for both children. The respondent says, taking into account of medical expenses and the costs of accommodation, the petitioner should be ordered to pay K246 per fortnight.

Out of the new relationship, the petitioner has to look after two more children and their mother. One could argue that is too bad, the petitioner is the master of his own misfortune. However, to be practical, he can only do so much within his financial abilities. If the circumstances change, the maintenance order can be varied. So taking into account the financial position of the petitioner and the needs of all the children, I determine a sum of K65 for each of the two children per fortnight to be appropriate.

I order that the petitioner pays K130 per fortnight for maintenance of Melisa Kiruhia and Jessica Kiruhia and the payment is to continue for a period past the 16th birthday of each child until the said children have completed two years of senior high school or the first two years of any other training institution.

There is no property to be settled.

Lawyers for the petitioner: J S Kemaken.

Lawyers for the respondent: Public Solicitor.