REID
v.
REID
Before: John Freeman, Commissioner
Hearing: 13 June at Honiara.
Judgment: 13 June 1984
Nullity of marriage - want of due ceremony - formal requirements of Pacific Order
1893 or Pacific Islands (Civil Marriages)
Order 1907 - whether satisfied by ceremony
"under" Islanders' Marriage Act c. 47 - meaning of "islander".
Facts:
The petitioners and the respondents went through ceremonies of marriage which purported
to be celebrated under the Islanders' Marriage Act c. 47 in Solomon Islands. Neither
respondent had domicile of origin or choice in Solomon Islands. The petitioners claimed
annulment of their marriages on the ground of want of due ceremony.
Held:
1. "Islander" now means "anyone domiciled in Solomon Islands": see LUASEUTA
-v- LUASEUTA GC 34/78 (unrep).
2. The marriages of others are to be celebrated under the Pacific Order 1893 (by a
minister of religion) or the Pacific Islands
(Civil Marriages) Order 1907 and any
proceedings for divorce or annulment taken under the Matrimonial Causes Act 1950 of
the
U.K. Parliament.
3. However a marriage complying with the formal requirements of the Islanders' Marriage
Act c. 47 will also satisfy those of the Pacific Order 1893 or the Pacific Islands (Civil
Marriages) Order 1907.
Decrees of nullity refused.
No other cases considered
Andrew Radclyffe for the petitioners.
The respondents did not appear and were not represented
John Freeman: On 13 June 1984 1 heard two petitions for a decree of nullity of
marriage which both raised the same point. In each case the
petitioner argued that the
marriage took place "under" the Islanders' Marriage Act c. 47; the
respondent was not an Islander within the meaning of that Act; therefore the marriage was
void.
There is little difficulty about the petitioner's first two propositions. In each case
the celebrating minister filled up and
had signed a paper headed "Solomon Island -
Native Marriage Ordinance - Certificate of Marriage". I am willing to
assume that he
followed the provisions of that Ordinance (now known as the Islanders' Marriage Act) in
every other respect. At the time of the REIDS' marriage in 1972, there was a statutory
definition of "native"
contained in the Interpretation and General Clauses Act
c. 1. which at its widest (in s.4(1) (b) extended to "any other
person at least one
of whose parents or ancestors was a member of a race, group, tribe or line indigenous to
any island
in the Pacific Ocean, and who is living in the British Solomon Islands
Protectorate in the customary mode of life of any such
race, group, tribe or line".
Mr REID an a white New Zealander clearly came outside it. By the time the MAHLONS were
married in 1980, "native" had given way to "islander" under the
Statute Law Revision Act 1974. That term
had been redefined by amendment of s.4 under the
Interpretation and General Clauses (Amendment) Act 1974, but s. 4 and its definition
of
"islander" were repealed in the constitution (Adoption and Modification of
Existing Laws) Order 1978 and never
replaced.
This gap was filled by DAVIS CJ in LUASEUTA -v- LUASEUTA and RAIMAN CC 34/78
(unrep.) by holding that " an islander for the purposes of the Islanders
Divorce Act must mean any one who is domiciled in Solomon Islands". I gratefully
accept this definition for present purposes, and suggest
it should be held to apply to all
statutes where the word appears. Mr MAHLON however, was not an islander, as he seems never
to have abandoned his domicile of origin in the New Hebrides (as they were at the time of
his marriage).
So in each case the parties went through the form of marriage laid down by the Islander
& Marriage Act; but in each case
one party was not an Islander. Curiously the
petitions are brought under the Islanders' Divorce Act c.48 which by s.3 ". . .shall
apply only to marriages between two Islanders who have been married by a minister of
religion . . . ". It is suggested by the petitioners that as the certificates are
presumed in order till the contrary
in proved, I can consider these cases under that Act.
But, as the petitioners' whole case depends on the certificates being
wrongly entitled,
and as (if they are right) the presumption of regularity has already been displaced by
their affidavits,
I do not think I can hear these cases under the Islanders' Divorce Act.
However I am quite prepared to do so under the Matrimonial Causes Act 1950 of the United
Kingdom Parliament, since that
in the statute which applies here to the marriages of those
who are not Islanders.
By s.8 of the Matrimonial Causes Act 1950 previously existing grounds for nullity are
preserved. One of these (in England) would
have been want of due form under the Marriage
Act 1949. But that Act lays down a complicated statutory framework which only
applies to
England (not even Wales, for the most part). In my judgment this is enough to prevent the
Marriage Act 1949
from being an "Act of the Parliament of the United Kingdom of
general application" within schedule 3 paragraph 1 of
the Solomon Islands
Constitution. Accordingly it has no effect here.
Another way of saying that is to state the general rule that, where procedural
questions are concerned, it is the law of the
place of celebration that governs the
validity of a marriage. Failure to do as Solomon Islands law requires is of course
preserved as a ground for a decree of nullity by s.8 of the Matrimonial Causes Act 1950.
In the eyes of the law the giving
of a certificate by a celebrating minister or registrar
does not bring a marriage into being; its importance is as evidence
that a marriage has
just been celebrated. So unless the certificate shows there have been important departures
from the
proper procedure at or before celebration, any defects in it are neither here nor
there.
What was the proper procedure? The petitioners say their marriages "should have
been celebrated in accordance with the provisions
of the Pacific Islands (Civil Marriages)
Order in Council 1907". Before trial they realized this did not apply to marriages
like these (by a minister of religion) and I gave leave to amend by adding to the end of
that passage "or the Pacific
Order 1893". That order (by article 118(c)) applied
only to marriages celebrated by a minister who is a British subject
(and by art . 121)
between parties of whom one at least is a British subject. I need not consider whether
this was the
case here since by s.2 of the Births, Marriages and Deaths Registration Act
c. 43 ("the Registration Act"), first enacted in 1896, a scheme of registration
of ministers was introduced.
By ss. 5-9 of that Act, the procedure under the Order of 1893
was made available to all "persons who would if in England
be legally competent to
contract marriages". Neither of them, nor the minister had to be a British subject,
providing
he was "ordinarily officiating an such" and registered under s. 2.
In these cases, the only issue raised is whether the mode of celebration complied with
the formal requirements of the law. (The
Islanders Marriage Act s.2 defines minister of
religion" for its own purposes as one who in registered under the Registration Act.,
so nothing
turns on that). The Registration Act requires (by s.6) a declaration from each
party before the marriage that there in no impediment
or lawful objection to it. There is
an identical requirement under s.6(1) of the Islanders' Marriage Act, no I can assume that
such declarations were made in each of these cases. Then (though the Registration Act does
not, say
no) :the marriage must be celebrated a substantially accordance with the rites of
the Church in question or at least so as to comply with the common law's
requirement of consent; there is no suggestion that either of these marriages took place
otherwise. Finally by s.9 of the Registration Act "The presence of two witnesses at
least is requisite"; the certificates
show there were two for the REIDS and no less
than four for the MAHLONS.
So I hold that despite the certificates, both marriages ware lawfully celebrated, and I
dismiss both petitions for annulment.
In Mrs REID'S case there is an alternative petition
for divorce on the ground of the respondent's adultery with a woman named
Anika. I find
the adultery alleged in the petition proved; it has not been connived at or condoned by
the petitioner nor
has there been any collusion. So I pronounce a decree nisi of divorce
under s. 4 of the Matrimonial Causes Act 1950 and grant
custody of the three children of
the marriage Jessina, Michele and Lee-Anne to the respondent (as prayed) with reasonable
access to the petitioner. I have heard about the sensible and friendly arrangements the
parties have made for the children.
In the terms of s.2 of the Matrimonial Proceedings
(Children) Act 1958 of the United Kingdom Parliament (which must apply to
all cases under
the Matrimonial Causes Act 1950), I am satisfied as respects each child that those
arrangements are satisfactory.
Under s.12(1) of the 1950 Act, I make a general order that
any decree of divorce granted under that Act may be made absolute
(as in the case of one
under the Islanders' Divorce Act) after the expiration of three months from the day it is
pronounced.
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