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Magga v Magga [1997] SBHC 91; HCSI-CC 258 of 1996 (7 February 1997)

IN THE HIGH COURT OF SOLOMON ISLANDS

Civil Case No. 258 of 1996

MARILYN MAGGA

-v-

MARTIN MAGGA

High Court of Solomon Islands
(Palmer. .J)
Civil Case No. 258 of 1996

Hearing: 7 February, 1997
Judgment: 7 February, 1997

A. Nori. for the Petitioner
L. Kwaiga .for he Respondent

PALMER J.: On the 7th of February, 1997 a verbal ruling was made granting the divorce petition of the Petitioner. This is the judgment of the Court with reasons. The parties were married at the Central Magistrates Court sometime in 1988, after having lived together in a de facto relationship since 1985. There are two issues of the marriage now living; Christina (11years) and Althea (9 years).

The parties separated sometime in September of 1994 and have not cohabited since. According to the Petitioner, the cause of their separation was due to domestic problems encountered as a result of the pressure caused by “wantoks” living with them in their house. The Petitioner stated in her evidence that a lot of financial strains in their family budget had been caused by the presence of wantoks in the house. This in turn had affected their marital relationship. As a result of these strains and pressures, she was eventually asked by the Respondent to leave the house; which she did. The Respondent does not deny that he had asked the Petitioner to leave the house. But this was only after he had noticed that the Petitioner had been acting strangely for sometime.

The Respondent stated that from August of 1994, he noticed that the Petitioner would come home late at night after playing netball, arriving sometimes at 800 pm or 900 pm. He also observed that they had little time spent together in the evenings as the Petitioner often retired early to bed He noticed too that the Petitioner was getting upset easily on any little thing in the house The issue concerning the wantoks in the house had never been raised by the Petitioner until September of 1994, despite the fact that the boys had been living with them since January of 1994 and that they were his nephew's. He told the Petitioner to be patient whilst arrangements would be made to have the boys moved out but the Petitioner was adamant that they be moved out immediately. The Respondent pointed out that at the time he told the Petitioner to move out of the house, he did not know of the relationship between the Petitioner and the expatriate, John Cave.

It was only one week later, that he was informed by letter from the Petitioner, telling him that she had had an affair with someone and that thereby she would not be returning to him. The Respondent states he received the letter from the post office at about 8.00 pm at night. The next morning he rang up the Petitioner to find out who the man she had had an affair with. He states he was shocked to hear that it was John Cave. In spite of this, he told her to return to him and threatened to assault John Cave. The Respondent made it clear to him however that she did not wish to return to him, having made up her mind it seems. It is clear on the evidence that several attempts were made to get the Petitioner back, not only by the Respondent but also the parents, relations and church pastors, but that these had been unsuccessful.

The Respondent states that he waited long and patiently for the Petitioner, even to the extent of physically abusing and assaulting the expatriate, John Cave at one stage and getting him deported from the country; but the Petitioner remained firm and would not relent. Her decision had been made.

I note that the Petitioner had actually asked the Respondent to file a divorce petition on her admission of adultery but that this had not been done by the Respondent.

She now comes to this court asking it to exercise its discretion in her favour and grant her petition for dissolution of marriage on the ground of adultery of the Respondent with one Susan Taveke, in spite of her adultery with John Cave.

The Respondent does not deny that adultery had been committed with Susan Taveke. It is clear on evidence that Susan is now living with the Respondent in a de facto relationship.

The cross-petition of the Respondent in essence was based on his view that since the collapse of the marriage had been caused by the conduct of the Petitioner in committing adultery with John Cave, that the court should exercise its discretion in his favour and not grant the petition of the Petitioner. He pointed out that it was only after waiting for sometime, but with no positive response from the Petitioner that he decided to enter into a relationship with Susan. This however had been done at the instigation of his family members, who felt sorry for him. The failure of this marriage accordingly he argues should not be placed at his foot.

This court appreciates the reasoning put forward by the Respondent in support of his cross petition. On the other side of the coin, it is to be balanced with the clear intention and willingness of the Respondent to not only forgive the Petitioner but to reinstate her in their marriage and to maintain that position right up to the time when customary arrangements were made by his people for Susan Taveke to stay with him. The only hurdle before him was the refusal of the Petitioner to return to him. Despite this, the Respondent did not file any petition for dissolution of the marriage, even when he had entered into cohabitation with Susan Taveke. The cross-petition had only been pursued when this petition was filed by the Respondent. Whilst there is discretion on the part of this court to grant divorce in favour of the Respondent in respect of the adultery of the Petitioner, it is my view that it would be more appropriate in the circumstances of this case to grant the divorce in favour of the petition of the Petitioner. In so doing, I bear in mind the possible interpretation that may be made of the actions of the Petitioner in refusing to be reconciled to the Respondent or be forgiven, and that thereby, this had resulted in the adultery committed by the Respondent. It may be argued that the Petitioner thereby had come to this court with unclean hands or had connived at the adultery of the Respondent. Whilst this may be true to some extent, this is to be balanced with the actions of the Respondent in relation to the adultery committed by the Petitioner.

One thing is crystal clear in the court's mind. Since the separation of the parties in September of 1994, there have been opportunities and attempts made for the parties to be reconciled to each other but to not avail. I t is clear that the Petitioner does not wish to return to the Respondent, and the Respondent no longer wishes to wait for the Petitioner. He has entered into a new relationship which he wishes to build upon and develop. The marriage has broken down irretrievably and there is no point in allowing it to subsist on paper. Both parties clearly want the marriage to be dissolved to enable them to have a clean break and to start afresh in the new relationships that they have entered into.

It is only proper in the circumstances that the marriage of the parties be dissolved. Unfortunately, the fact that I am satisfied that the marriage had broken down irretrievably is not a ground for divorce. It is a material factor which the court has to take into account, but the test ultimately is whether adultery had been committed and whether it had been condoned or connived at.

Balancing all the evidence before this court, it is my respectful view that the petition of the Petitioner should be granted on the adultery of the Respondent, rather than the cross-petition of the Respondent, bearing in mind the peculiar circumstances of this case.

ORDERS OF THE COURT:

l. Order that a decree nisi be issued forthwith for the dissolution of the marriage between Marilyn Magga and Martin Magga celebrated at the Magistrates' Court sometime in 1988 on the ground of the adultery of the Respondent and to be made absolute three months thereafter, unless sufficient cause is shown.

2. Dismiss the cross-petition of the Respondent.

3. Outstanding issues on the custody of the children of the marriage and matrimonial property are to be adjourned to chambers.

4. Interim orders on the custody of the children to continue until further orders of the court.

5. Direct that social welfare reports on the issue of custody to be prepared on the parties and the children.

6. Each party to bear their own costs.

ALBERT R. PALMER
The Court.