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B v B [1981] SBHC 3; [1982] SILR 5 (8 December 1981)

1982 SILR 5

IN THE HIGH COURT OF SOLOMON ISLANDS

Civil Case No. 87 of 1981

B

v

B

High Court of Solomon Islands
(Daly C.J.)
Civil Case No. 87 of 1981

8th December 1981

Divorce - adultery by Petitioner - discretion sought - principles for exercise - Proviso to section 8(2) of the Islanders Divorce Act (Cap. 48)

Facts:

A wife Petitioner sought a decree nisi on grounds of adultery and asked the court to exercise its discretion to grant the decree notwithstanding her admitted adultery. The Respondent admitted the adultery but asked the court to dismiss the Petition in accordance with the proviso to section 8(2) of the Islanders Divorce Act (Cap. 48) that is, not to exercise its discretion in favour of the Petitioner.

Held:

The chief considerations in weighing the exercise of the discretion given by the proviso to section 8(2) are-

(a) the position and interests of the children;

(b) the interest of the party with whom the Petitioner has been guilty of misconduct, with special regard to their prospect of future marriage;

(c) the question whether, if the marriage is not dissolved, there is prospect of reconciliation between husband and wife;

(d) the interest of the Petitioner and in particular the interest that the Petitioner should be able to remarry and live respectably; and

(e) the interest of the community at large, to be judged by maintaining a true balance between respect for the binding sanctity of marriage and the social considerations which make it contrary to public policy to insist on the maintenance of a union which has utterly broken down.

(Blunt v. Blunt (1943) 2 All ER 76 applied)

As the evidence showed that the best interests of the child were for the parties to remain together and there was not sufficient evidence that the marriage had utterly broken down the discretion would not be exercised. Petition dismissed. "It is the court’s duty to maintain a respect for the binding sanctity of marriage and not simply to provide machinery by which parties can be freed from the bonds of a marriage which is having difficulties".

For Petitioner: G. Strang
For Respondent: F. Waleilia

Daly C.J.: This is a wife’s Petition for a decree nisi presented on grounds of the adultery of the respondent with the named Correspondent.

The Petitioner and Respondent were married in Honiara on 7th December 1974. There are no children born to the parties but they have legally adopted one child who is now aged 2 years and 7 months.

In the middle part of this year there came a time when what is called a trial separation of the Petitioner and Respondent took place. It was at the suggestion of the Respondent and he gave three reasons for proposing the separation:-

(a) because the Petitioner did not treat the Respondent’s people well;

(b) because the Petitioner had not given birth to a child; and

(c) because the Petitioner swore at the Respondent.

When the Respondent told the Petitioner of his proposal for a trial separation the Petitioner was very upset. At first she stayed in the house. Then she took pills with the result that she slept for 3 days.

When she woke up she was taken by her family to stay with her sister at White River. At that stage the Petitioner formed the intention of not going back to the Respondent. After one week the Petitioner went to live in the Nurses Home at Central Hospital where she is a nurse.

The Respondent at some time before 8th September 1981 visited the Petitioner at the Nurses Home. He told her that he had committed adultery. The Respondent did not tell the Petitioner the name of the girl concerned but as a result of enquiries the Petitioner subsequently went to see the Correspondent. The Correspondent admitted to the Petitioner that she was the person with whom the Respondent had committed adultery.

There was an exchange of letters. I have seen the one written by the Respondent to the Petitioner (Exh. B) which is dated 8th September, 1981. It is quite clear at that stage that the Respondent was expressing regret for what he had done and trying to persuade the Petitioner to give him another chance.

The genuineness of this letter is supported by the undisputed facts that the Respondent has both on his behalf and through the agency of church leaders attempted to effect reconciliation. The Petitioner has on occasion since the separation returned to the matrimonial home for the night and slept with the Respondent. This was done, indeed after the Petition was filed. On one occasion the Petitioner told the Respondent she intended to withdraw the Petition. In this court the Petitioner stated in evidence that she did not really care if she got a divorce or not. However after an adjournment for the Petitioner to have a further opportunity to consider the matter the Petitioner has instructed her lawyer to proceed with the Petition. The Petitioner says that as far as she is concerned the marriage is finished and she sees no chance of the marriage going ahead. The Respondent opposes the Petition as he wishes to make further attempts to recover the marriage.

One further matter is that the Petitioner asks for the Court to exercise its discretion and grant her a decree notwithstanding her adultery with a named man in October, 1981.

Those being the facts upon which this case is based, I now turn to the law.

Section 5(1) (a) of the Islanders Divorce Act (Cap. 48) ("the Act") permits the presentation of a petition for divorce "on the ground that the respondent has, since the celebration of the marriage, committed adultery." Section 8(2) provides (so far as is relevant):-

"If the Court is satisfied on the evidence that (i) the case for the Petitioner has been proved; and (ii) where the ground of the petition is adultery, the petitioner has not in any manner.......... condoned the adultery.....The court shall pronounce a decree of divorce."

So the first question is, is the case for the Petitioner proved in relation to the adultery with the correspondent? The answer to that question is undoubtedly yes as both the Respondent and the Correspondent have admitted the adultery and there are circumstances in this case which make those admissions cogent and believable. Indeed the Respondent did not seek to challenge the fact that he had committed such adultery.

The second question is, is the court satisfied that the Petitioner has not condoned the adultery? Counsel for the Respondent submits that there is evidence of condonation in this case. He relies upon the evidence of the return of the Petitioner to the matrimonial home and the resumption of marital relations upon such occasion. Condonation in law consists of the reinstatement of the spouse (in this case the husband) in his former marital position with the intention by the wife of forgiving and remitting the matrimonial wrong of which she has full knowledge. There are thus two elements: the fact of reinstatement and the intention to forgive. Evidence of resumption of sexual intercourse is evidence of reinstatement of the Respondent on the one hand. On the other is the fact that the Petitioner has declined to return to the matrimonial home so full reinstatement has not taken place. In addition the Petitioner remains adamant that she has not, and cannot, forgive the Petitioner for his matrimonial wrong and, as a clear indication of this attitude, has continued to press the Petition despite one occasion upon which she discussed its withdrawal with the Respondent. In all the circumstances the court is satisfied that there has not been reinstatement of the Respondent with intention to forgive and remit the matrimonial offence sufficient to constitute condonation. This then, is not a bar to granting the suit.

However there is a further question to be answered. This arises from the proviso to section 8(2) of the Act which reads:-

"Provided that the Court shall not be bound to pronounce a decree of divorce and may dismiss the petition if it finds that the petitioner has during the marriage been guilty of adultery ......"

The Petitioner asks the Court to exercise the discretion embodied in this proviso in her favour and to grant her Petition notwithstanding her admitted adultery.

The exercise of such discretion is unfettered by the Act. However Courts in considering an identical discretion in legislation in other countries have indicated that the chief considerations to be weighed before reaching a decision are as follows:

(a) the position and interests of the children;

(b) the interest of the party with whom the petitioner has been guilty of misconduct, with special regard to their prospect of future marriage;

(c) the question whether, if the marriage is not dissolved, there is prospect of reconciliation between husband and wife;

(d) the interest of the Petitioner and in particular the interest that the Petitioner should be able to remarry and live respectably; and

(e) the interest of the community at large, to be judged by maintaining a true balance between respect for the binding sanctity of marriage and the social considerations which make it contrary to public policy to insist on the maintenance of a union which has utterly broken down.

(See per Viscount Simon LC in Blunt v. Blunt (1943) 2 All ER 76 at page 78).

In this case (b) is not relevant. As far as (a) (the position and interest of the child) is concerned it is clear from the evidence that it would be in the best interests of the child if the parties were to remain married and be reconciled. (c) involves a difficult estimation of the chances of reconciliation and I have chosen to look at it in conjunction with (e) because it seems to me that the decision as to whether the union has utterly broken down must involve a consideration of the chances of reconciliation.

As matrimonial breakdowns go in cases which come before this Court this is not one caused, as far as this court has been made aware in evidence, by deep rooted and irreconcilable differences. There is the understandable unhappiness caused by the failure to produce a natural child which has put a strain on the marriage. Then there was the Respondent’s proposal of a separation to which no doubt he had given long and careful thought before placing it before his wife. However the Respondent has clearly had second thoughts about the differences between himself and the Petitioner to which he referred and the fact that the Petitioner was so upset at the proposal would argue that up to that moment she had strong belief in the marriage. The adultery of the Respondent appears to be a matter of giving into temptation from loneliness in the absence of his wife rather than a deliberate affair over any period of time. The affair was brief and is now finished and the Respondent has asked forgiveness both for this and for what he must now realize was a foolish act in proposing the separation.

Further the adultery of the Petitioner seems to have been more a case of getting her own back at the Respondent rather than seeking sexual pleasure outside the marriage.

Can it be said on this basis that the marriage has utterly broken down? The Petitioner does say so. However her own acts in returning to the matrimonial home and having sexual relations with the Respondent belie that. I find it difficult to accept that a young woman of obvious good sense would allow a marriage of seven years to wash away on the basis of the events of which I have spoken in this judgment.

Finally I observe that this Petition is being heard within six months of the first matrimonial offence alleged and I do not consider that such a period is enough for such mature reflection and consideration as to enable the parties to weigh in the balance the effect upon the lives of all concerned of a final decree of divorce being made.

Having considered all these matters carefully and bearing in mind the paramount consideration that it is the court’s duty to maintain a respect for the binding sanctity of marriage and not simply to provide machinery by which parties can be freed from the bonds of a marriage which is having difficulties, this court has come to the conclusion that this is not a case in which it will exercise its discretion in favour of the Petitioner.

The Petition is dismissed.