3. Suher orders as this
Court may deem just and equitable able in the circumstances of this case.
4. Costs to be paid by the
Plaintiff.
Counsel for the 1st
Defendant abandoned the order sought in paragraph 1 i Notice of Motion.
I I omit it.
The Facts
The Plaintiff and the 1st
Defendant had lived tog as husband and wife from orom or about 1972 and
again from 1975 to 1996. The Plaintiff is from
the island of Makira, an
indigenous person of Solomon Islands descent and citizen of Solomon Islands.
The 1st Defendant is a Chinese by descent whose parents came to
Solomon Islands many years ago. The marriage was not celebrated either
under
the provisions of the Islanders Marriage Act (Cap. 171) or under the
provisions of the Pacific Islands Civil Marriages Order in Council, 1907.
The Plaintiff claims
that she and the 1St Defendant were married according
to her custom in Arosi where she comes from. The parties had lived together
until 1996 when they separated. There are 5 children of the union. Three of
them are now married and have their own separate
families. The parties had
lived together for a period of 24 years or so in Solomon Islands. Now the 1st
Defendant denies that there was a valid custom marriage between him and the
Plaintiff.
Is custom marriage valid in the
eyes of the law?
Section 4 of the Islanders
MarrAct cited above does recognise marriage celebrated in accoraccordance
with the custom of
Islanders as a valid marriage. This provision of the
Islanders' Marriage Act is consistent with paragraph 3 of Schedule 3 to the
Constitution, which says that customary law shall have effect as part of
the
law of Solomon Islands unless the customary law in issue is not consistent
with the Constitution itself or with an
Act of Parliament in which case the
Constitution will prevail. However, Counsel for the 1st
Defendant, Mr. Nori, argued that the Islanders’ Marriage Act applied only if
both parties to the custom marriage were Islander themselves. In this case,
he argued that the 1st Defendant was not and could not be an
Islander according to the definition of the word “Islander” as defined in
section
17 of the Interpretation and General Provisions Act (Cap. 85) which
restricted an “Islander” to persons of Melanesian, Micronesian and
Polynesian descent living in Solomon
Islands in the customary mode of life
of any such race, group, tribe or line. He therefore concluded that this
being
the case and the fact the relationship was not governed by any known
written law in Solomon Islands must lead to the conclusion
that the marriage
in custom was invalid and did not exist in law in any form. This argument
does not dispute the validity
of a custom marriage but only if the other
party to the marriage is not an Islander does it affect the validity of the
custom marriage. I will not give an answer yet to this argument but I will
return to it later in this judgment. I wish to
look first at the philosophy
of marriage in Christendom and compare it with that in custom in Melanesia.
Marriage in Christendom
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In the middle ages in Europe,
marriage wasrded as a personal and purely a secular matter a position
ion
derived from
the Roman law. There was no state law governing it. After the
Norman Conquest in England, the Clergy became the focal point
in the
celebration of marriages. The incidents of informal marriages were also on
the increase most of which were done
clandestinely. In his book
Informal Marriage, Cohabitation and the Law, 1750 -1989 by
Stephen Parker at pages 20-21 the author says this
…“Thn reason why
f formal marriage offended many couples’ desire for privacy was the
requirement that banns announcing
the forthcoming marriage had to be read in
the local church. Canon law had stipulated since at least 1604 that a church
wedding must take place between the hours of
8:00 a.m. and noon in the
church at the place of residence of one of the pair after the banns had been
read for three
consecutive weeks. Allied to this requirement was the
provision that marriages of persons under twenty -one were forbidden
without the consent of parents or guardians. The necessity of banns was
formally to enable anyone to object, for example
because of lack of parental
consent, a previous marriage or consanguinity (closeness of blood). It
operated to mobilize
general opposition to the marriage which must be hard
to resist. Parents could make real the threat of withholding portion
for the
daughter. Peers and elders could mount psychological and material pressure
to dissuade the couple. Even if one
of the couple was under twenty - one and
there was no parental consent, the banns were still necessary because,
although
the marriage was forbidden and the clergyman liable to penalties,
it was still binding for life: a paradox, says Stone, which
the laity found
hard to understand (1979, p. 31). One way round marriage by banns was to
obtain a licence. During the
sixteenth and seventeenth centuries the sale of
licences increased but their availability was patchy, depending on the
attitude of the bishop and their cost”...
Then the Lord Hardwicke’s Ac 1753 came into force. The Act was the foundation upon which modern
legislations onns on marriage
in England is based. There had also been
improvements on the Act during the course of the Industrial Revolution and
since
then. The most important change was brought about by the Civil
Marriage Act 1823. At page 48, the author cited above again
says,
<
…“The thrust of the
Act was to make the validity or marriages ages in breach of statutory
requirements depend on the
parties’ knowledge and intention so that mistakes
in the formalities did not render the marriage void”...
The Civil Marriage Act 1836
brought about further changes. At page 72, the author comments ...“The
1836 Act was more innovatory and provided a diversity of choice almost
unique in nineteenth &nbcentury Europe,
althoughhough similar measures were
introduced in some other common law jurisdiction”... At pages 93 & -94,
the authorpiturpitulates the theme in the marriage law up to 1945. The
e
author says,
...“The central theme mhat marriage is continually being redefined by legal egal and social practice.
The Marriage Act, 1949 e
United Kingdom was an Act to consolidate the law relating to the
solemnizatiozation and registration
of marriages in England etc. In Solomon
Islands, the Pacific Islands Civil Marriages Order in Council 1907 and the
Islanders’ Marriage Act cited above do bear the essence of the Civil
Marriage Act 1836 with slight modifications.
The Attitude by turts on
the question of validity of Marriage
The thrust of the Marriage Act
1823 as pointed out in the qubove was to promote the vale validity of
marriage despite
breaches of statutory requirements. The deciding factor in
any one given situation is the “knowledge and intention” of the
parties.
This principle has translated itself over the years into the present
principle that all marriages are presumed
to be valid until proved otherwise
(see Siloko v Haka) (Civil Case No. 53 of 1999) and
Stella Salumata v John Kelly (Civil Case No. 344 of 1999). At
page 3 of the judgment in Stella Salumata v John Kelly cited,
I said,
;..."The Courts are always
loath to dissolve valid marriages. The reason is o is obvious. Families are the
basic social
units in any society. They have very strong biblical backing
and the law sanctions their existence and preservation in every
society. So,
there is a very strong presumption that a marriage is presumed always to be
valid. However, this presumption
may be negated by very strong evidence to
the contrary. Such evidence however must be strong, distinct, satisfactory
and conclusive. In other words, the evidence to the contrary must be
decisive (See page 3 of Ward, C.J.’s Judgment in Siloko v Haka
referred to above)”...
English Cases
In Piers v Piers [1843 - 1860] A.E.R. (Reprint) 159, the House of Lords affirmed the principle that
the law law takes for granted the validity
of a marriage unless rebutted by
strong, distinct, satisfactory and conclusive evidence to the contrary. In
that case,
the facts were that Sir Piers went to the Ilse of Man and resided
with a female partner. In 1815, the parties went through
a marriage ceremony
performed by a Chaplin being a member of the Church of England. It was
alleged that the marriage
was illegal because it was celebrated in Sir
Pier's private residence and without a licence. The House of Lords held that
the marriage was good. The reasons for so holding were not revealed other
than saying that the evidence available was
not sufficient to dispute the
presumption of a valid marriage. In Captain De Thoren v The Attorney -
General (1875 - 76) 1 App. Cas. 686, the parties went through a ceremony
of marriage in Scotland believing the marriage was a valid
one. At the time
the marriage ceremony took place, the husband was still awaiting the decree
absolute to take effect
following a decree nisi obtained in his divorce
case. Both parties were not aware of that legal impediment and continued to
live as husband and wife. They had children who were treated as legitimate
children of the marriage. They lived together
as husband and wife for many
years. The House of Lords held that the marriage was valid. In the case of
In re Shephard, George v Thyer [1904] UKLawRpCh 27; [1904] 1 Ch. 456, the parties were
married in France by some form of ceremony and lived together for 30 years
having had several children
by that union. The parties had married in a
French town after arrival in France from England. They had eloped and wanted
to keep the marriage secret. The purported marriage ceremony was performed
in the French language which none of them understood.
There was also the
putting on of a ring and something like a certificate was given pointing to
the fact that marriage
had taken place between the parties. The Court held
the marriage was valid. In Hill v Hill [1959] 1 A.E.R. 261, the
parties were married after living together as husband and wife for 30 years
having had children of the marriage.
The problem was that their marriage was
celebrated when the husband was critically ill and was over 80 years of age.
The argument was that the husband was not and could not have understood the
contract of marriage due to his condition. The
Court held that the marriage
was valid. In Quick v Quick otherwise O’Donnell [1952] VicLawRp 89; [1953] V.L.R
224, the parties informed a Minister of the Church of England that they
wanted to marry. They attended the Minister’s house that
same day they
expressed the desire to marry. Having fulfilled the necessary requirements,
the marriage ceremony was conducted
in accordance with the rites of the
Church of England. The Minister having invited the groom to produce the
ring, he
did so, and when in the act of putting it on the bride's finger,
she pulled it off and threw it on the ground and said she
would not marry
the groom and ran from the premises. As a result, the parties did not join
hands and the Minister did
not pronounce them man and wife. The bride was a
willing party until that moment she removed the ring from her finger. The
Court held that the marriage was complete as a matter of law and was valid.
The common thread that runs
through these cases is that a marriage is a contratered into knowingly
and by consent
of the parties intended to bind the parties to it. The law
presumes it is a valid contract until negatived by strong, distinctive,
satisfactory and conclusive evidence to the contrary. This is the bottom -
line as to what constitutes a valid marriage
at common law.
What is a valid marriage in
custom in Soloslands?
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What constitutes a valid custom
marriage in Solomon Islands cannot be said to be uniform for all communities
and Provinces
in the country. The rules of practice do vary from one
community to another. Even the marriage ceremony witnessing the celebration
of marriage does vary in form and intensity from community to community.
What constitutes a valid custom marriage in
one community may not be
adequate for the same purpose in another community. One thing is however
common. A custom marriage
is not and cannot be a secret affair in custom.
Everyone in the village of the parties, the members of the immediate and
extended families and even neighbours are informed. Exchange of food, bride
- price and other items are common features
of custom marriage. In the past
and even now, the marriage contract is always negotiated by the father or
male relative
of the boy if his father is dead or for some reason is unable
to fulfil that duty. Acceptance or refusal on behalf of the girl's
family is
the duty of the girl’s father or male relative of the girl, again if her
father is not available. In practice,
the girl’s consent is sought by her
father except where the girl may have to be persuaded if she refuses to
accept. Often
the girl accepts out of respect for her father and her close
relatives. Nowadays the situation in most cases is that the boy
and the girl
agree in private and later ratified by the boy’s parents and the girl’s
parents. In some extreme cases,
the boy and the girl may have lived together
for sometime before their parents are informed. The payment of bride price,
exchange of gifts and general acceptance of that status quo is often the
ratification of the parties' agreement to live
together as husband and wife.
In some church communities, the girl can marry without the payment of bride
- price although
exchange of food may take place. In some cases, the
exchange of food may even be scaled down to the point where both sides
come
together and eat prepared meals to signify the marriage. The only difference
is that the parties often end up marrying
in the church under the Islanders
Marriage Act. In these cases the motive for celebrating the marriage in
Church is the wish to be blessed by the priest or pastor who conducts
the
marriage ceremony on behalf of the Church. This is what matters most in
their minds than the legal consequences of
marrying under the provisions of
the Islanders Marriage Act. There have been cases where token bride - price
has been paid by the boy's parents without exchange of food etc. The most
important thing is that the parties have agreed to live together as husband
and wife and is accepted by their families
and relatives. All the ceremony
and the pomp can be foregone if the circumstances of the case so dictate but
without
affecting the validity of the marriage.
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Does custom discriminate
against persons of foreign descent?
The 1st Defendant in
his defence filed on 10th August 1998 denies thas that his
relationship with the Plaintiff amounts to a valid custom marriage. The
reason advanced
for his position is that he is of Chinese descent and so he
could not have contracted a custom marriage with the Plaintiff.
This
position is based upon section 4 of the Islanders Marriage Act for it
assumes that custom marriages can be entered into only by indigenous Solomon
Islanders formerly known as natives.
This assumption was probably correct in
1945 when the native marriage legislation was first enacted by then British
Colonial
Government. The number of persons of Chinese descent and Europeans
were probably very small indeed. Custom though embedded
from time immemorial
has been evolving over the years though its substance has remained intact as
a separate system of
law in Solomon Islands. I know of no custom, which
prohibits an indigenous person from marrying any persons from another
Province in Solomon Islands or a person of another race who lives in Solomon
Islands. I do however know of cases where
the parents of the girl were
worried about their daughter marrying a foreigner due to lack of ability to
communicate
with their son - in - law and the lack of sophistication on
their part resulting in the feeling of uneasiness and inferiority
at times.
The validity of the marriage was never questioned on the ground that the son
-in -law was a foreigner. In fact,
no custom discriminates against
foreigners in this regard. In some communities in Solomon Islands,
bastardity is frowned
upon and is always avoided. Land inheritance is so
important that every child born must have a proper mother and father so
that
marriage reinforces this social norm in society. There is no concept of
valid as against invalid marriage in custom
for all marriages are regarded
as valid. I find no authority in custom that prohibits an indigenous person
from marrying
another person of foreign descent. (sees Ross Hepworth v
Mary Palmer Sikela &nnbsp; - Civil Case No. 32o. 326/93).
Marriage in Arosi Society
>
lass="MsoNoMsoNormal" style="margin-top: 1; margin-bottom: 1">
In this dispute, the Plaintiff
gave evidey way of affidavit filed in this Court. In her affidavit
it
filed on 30th August 2000, she said this in the following
paragraphs -
1.
....................................
lass="Mss="MsoNormal" style="margin-left: 36.0pt; margin-top: 1; margin-bottom: 1">
2.
....................................
3. The First Dent was
born in Honiaroniara from a Chinese couple. He grew up in Honiara and attended
St. John's Primary
School completing his primary education at Standard Six.
He did not further his education. In Honiara he was and still is known
as a
local boy. Immediately after leaving primary school he worked for his father
on an inter island trading boat.
4. I first met the First
Defendant in 1971 whilst studying at the then Honiara Technical Institute [HTI].
He moved in
with me and we lived together in my house at Vura, Honiara. No
marriage was contracted immediately because his racist family
advised
against it. In 1974 his parents arranged a bride for him in Hong Kong and he
left to marry her. In the same year
he returned to the Solomons with his
wife, left her at his parents house and continued living with me in my house
at
Vura. He was not keen on their marriage and according to him the wife he
brought back from Hong Kong was his “daddy’s missus”
because he arranged the
marriage...
5. The First Defendant was
ostracized by his parentarents for rejecting his wife and when I left for Makira
to work for
PATOSA Corporation a company owned by the Solomon Sunaone
Mamaloni he joined me and we lived on Makira for a year only to return
to
Honiara with me after having learnt that his Chinese wife had returned to
Hong Kong. Our second son Eric was born
in Makira and I gave up my job at
PATOSA Corporation for the First Defendant for the reason that he was the
man of the
family and he needed the job.
6. Custom marriage in Makira
is described in the late Solomon Mamaloni’s note annexed hereto and marked
“CR1”. My parents
did not ask the First Defendant for bride price because he
did not have the means to purchase the dowrie. Although no bride
price was
paid and no custom ceremony was performed we were according to ourselves,
our families and the community in
Makira and throughout the Solomons married
in custom. The First Defendant lived with me and my extended family in
Makira
and we were accepted by my tribe as married. The First Defendant
always said that he did not believe in a legal marriage. He
always told me
that it was how you feel that counts and that a legal marriage is only a
piece of paper.
7. … … … …
8. … … … …
9. … … … …
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10. … … … …
11. … … … …
12. … … … …
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14 … … … … <
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“Custom marriage in Arosi
where Francis and Clarachildren have spent parts orts of their lives during
the past 24 years
is normally signified by certain rituals or ceremonies -
(a) the making of a proposal
by the ps of the prospective bridegridegroom to the prospective bride,
either through her
parents or another senior member of the girl’s family,
but never her brother;
<
(b) in the case where the
proposal has been proven poen positive or successful a deposit of money
(traditional or modern cash)
is made with the parents of the girl. The
objective of the deposit is to silence the brothers of the prospective bride
as each of the boys will receive portions of the money; and
(c) the actual purchasing of the bride during which the clan of the bridegroom deliverliver the dowry and the
prospective bride’s
clan offer food and other gifts as a token of accepting
the other clan as an in-law
By tran these three
ceremonies wrap up or complete the wedlock in which the young couples ales are
betrothed to each other
and begin their lives together as husband and wife.
The changing life
cultural patterns in this modern era have, to some exme extent, affected the
consistency, if not, the
real fulfilments of these inherent traditional
customs. However, tolerance of such situation has also been accommodated by
the parents of girls who have opted or drawn into forms of custom marriage
as in the case of Francis and Clara.
lass="Mss="MsoNormal" style="margin-left: 36.0pt; margin-top: 1; margin-bottom: 1">
From memory Clara’s parents
were not persistent on a bride price or dowry payment from Francis although
they accepted
him as Clara’s husband. Their obligation was then to inform
members of their immediate family and relatives who eventually
accepted and
recognized Francis and Clara as wife and husband respectively. The early
part of their marriage was consumed
when Francis eloped with Clara from
Honiara (to escape and hid away from his Chinese wife) and lived in Arosi. I
was
their employer. At that particular period all Clara’s relatives resolved
not to charge Francis any bride price because he had
with him only 2 or 3
pairs of shorts. This was during 1975.
Clara and Francis have lived
together during the past 24 years as h as husband and wife and have brought into
the world
five beautiful children including 2 grandchildren. During those
years all Clara’s relatives in Arosi and elsewhere have accepted
Francis as
an in - law of one form or another in accordance with normal Arosi wedlock
customs and practices. Francis
highly respected Clara’s parents and other
relatives and has given much personal assistance to them including such
renowned
personalities as Stephen Rex Horoi the Ambassador to UN who is a
cousin of Clara.
The children spent
considerable time with their Arosi relatives especially during holidays and
have identified themselves
with the Arosi community. By the same token
Clara’s relatives regard those children as part of their line blood and
afford
them great fondness and customary rights to properties.
There is no doubt,
therefore, in terms of Arosi customs practices and recognition that Francis
and Clara have been married
during the past 24 years, irrespective of the
fact that the three ceremonies referred to earlier have, for understandable
reasons, been omitted.
will be exactly the
same view or understanding of Arosi people excluding Clara’s rela relatives
“... I may say that the word
“excluding” in the last line in the final paragraph above should read,
“including” to be
consistent with the rest of the paragraphs. It must have
been a typing error.
The avit evidence of Mr.
Palmer filed on 20th August 2001, Mr. Ngaraidiri file filed on 16th
October 2001 and Mr. Ramo filed on 20th October 2001 does
not contradict the evidence given by the Plaintiff herself and Exhibit “CR1”
attached to her affidavit.
Mr. Usuha’asua gave evidence by
affidavit filed on 25th Ma1 on behalf of the 1stup>st
Defendant. He is also from Arosi the same area to which the Plaintiff
belongs. I quote his evidence in the following
paragraphs of this affidavit
-
1.
............................
2. I am making this further
affidavit about custom marriages in Makira, in particular, Arosi.
3. I was aware of the relationship between the Pthe Plaintiff and the First Defendant. They were living
together and have children.
4. According to Arosi custom
a age consists of the followillowing stages: -
(a) the asking of the brid and the consent for her her to get married to the groom;
(b) the giving of the
engagement or commitment ment payment, which would normally be custom shell money
and, now a days,
may be with some cash payments;
(c) aftis engagement or
commitment stage, the girl may go ango and live with the groom and that may
children; and
<
(d) the holding of the
marriage feast called ‘ha’ahe’iwai which is the final stage at which the
bride’s party bring pigs
and food to be exchanged for money with the people
from the groom’s family.
/p>
5. In the case of the Plaintiff and the First Drst Defendant there was no ‘ha’ahe’iwai and therefore
their marriage relationship
was not complete in custom. This type of
relationship may terminate at any time without anyone raising an issue.
6. At the final
‘ha’ahe’iwai, moneys paid during the engagement stage would be regarded as
forming part of the monetary
exchange between the two parties to the
marriage ceremony.
This then is the state of
evidence for both sides.
Is the Plaintiffs marriage to
e 1st Defendant valid in the Arosi custom?
The only piece of evidence that
says anything contrary toacceptance of the Plaintiffs marriage to the 1st/sup>
Defendant is the affidavit evidence of Mr. Usaha’asua. The absence of a
feast (the ha’ahe’iwai) was the missing
component in the marriage ceremony
in this case. He however did not say that such omission would render the
marriage
invalid. What he did say however was that such marriage could
terminate for the reason of the omission of the feast (the ha’ake’iwa).
In
other words, the wife could choose to withdraw from the union at some stage
in her married life. This evidence does
not really answer the question of
validity or otherwise of the marriage in custom in this case. What is clear
and remains
uncontradicted is the conclusion upon the evidence that the
parties had agreed to be married and was accepted by the Plaintiff’s
family,
relatives and the community in Arosi at large. There is no doubt that both
the Plaintiff and the 1st Defendant had agreed to live together
as husband and wife as long as the marriage would last. It lasted for 24
years.
There were children of the marriage and grand - children have now
come to join the family. These children and the grandchildren
must now
necessarily have become members of the Plaintiffs tribe and obviously are
entitled to land rights under custom.
Bastardity is avoided. The 1st
Defendant’s previous marriage to Chen Man Lan was dissolved by the High
Court on 2nd December 1975 by a decree nisi and decree absolute
must have followed three months later. This fact does not invalidate the
marriage in custom between the Plaintiff and the 1st Defendant.
For example, in Captain De Thoren v The Attorne -- General cited
above, a case similar to this case but arose in Scotland, Lord Chelmsford at
page 695 said,
class="Mss="MsoNormal" style="margin-left: 36.0pt; margin-top: 1; margin-bottom: 1">
…“The habit and repute
arising from the parties having lived together as husband and wife for many
years was amply sufficient
to prove their consent to contract this relation.
Can the invalid ceremony of marriage, which strengthens the proof of
consent, have the effect not merely of weakening, but of entirely
destroying, that proof? No valid consent could, of course,
be given during
the time allowed for appealing against the decree of divorce. But as soon as
that time had passed there
was nothing to prevent the marriage of the
parties, or to invalidate any consent to become husband and wife; and their
living together so many years as married persons raised a presumption of
their consent to contract that relation, which could
only be rebutted by
proof of some fact which raised an impediment to their marriage”...
Again, at page 697, Lord
O’Hagan said,
<
…“Cohabitation epute do
not constitute the marriage, but are the evie evidence from which the consent
essential to it
is conclusively presumed, in the absence of countervailing
proof to the contrary. No formal solemnization, no agreement by
writing or
in words, is needful to its validity. If the parties live together for many
years as husband and wife, believe
themselves to be so, mean themselves to
be so, and are reputed to be so, as in this case, by all the world, until
the
death of one of them the presumption unrebutted supplies the want of
formal ceremony or express contract, and validates their
marriage, with all
its legal incidents”...
The Lord Chancellor and Lord
Selbourne also agreed with the views esed by Lords Chelmsford andd and
O’Hagan cited above.
This case is consistent with the English authorities
cited above in that a marriage is a valid contract so long as there is
evidence to show that the parties had knowingly and by consent intended to
live together as husband and wife for as long
the marriage would last.
Custom marriage is at par with these English authorities regarding common
law marriage. The
only difference is that in custom marriage, the parents,
relatives and the community are also involved in the acceptance and
recognition of the marriage. In custom, marriage is not meant to be
invalidated for any reason because acceptance by
both the parties, their
families and relatives had sealed its validity. There can be broken
marriages but I have not
heard of any marriage that is invalid. A marriage
once accepted is a valid marriage. I find that the marriage between the
Plaintiff and the 1st Defendant was a valid custom marriage. Cost
be in the cause.
F.O. Kabui
Judge
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