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Tonga v Tonga [2025] TOSC 9; FD 274 of 2024 (28 February 2025)

IN THE SUPREME COURT OF TONGA

DIVORCE JURISDICTION

NUKU’ALOFA REGISTRY

FD 274 of 2024

BETWEEN:

UINI TONGA

- Petitioner

AND:

LATU TONGA

- Respondent

RULING

BEFORE: HON. JUSTICE P TUPOU KC
TO: Mrs. G. Pole’o for the Petitioner
Latu Tonga, the Respondent
DATE: 28 February, 2025

1. The Petitioner’s petition for divorce was filed on 26 November, 2024 on the ground of the parties having been separated for a continuous period of 2 years or more immediately preceding the presentation of the petition without either of them intending to maintain or renew normal marital relations or co-habitation with each other pursuant to s.3(f) of the Divorce Act.
2. In her petition the Petitioner provided that she was domiciled in Tonga but she was not resident in the Kingdom nor had she been ordinarily resident in the Kingdom for a period of at least 2 years immediately preceding the commencement of this proceeding^[1].
3. The Petitioner departed from Tonga on 13 November, 2022 under the Government’s Seasonal Worker Programme.
4. Incongruously, the visa she disclosed was granted on 31 July, 2023 and was valid up to 31 July, 2024. She has overstayed that visa and relies on advice that her visa for an extension is in process.
5. In an affidavit sworn on 4 February, 2025 the petitioner declared that:

a) she was in Australia temporarily for work;

b) she had a plan to fulfil for her daughter and widowed mother;

c) she wished to build a house for them;

d) she cannot do that if she were in Tonga;

e) she considered herself domiciled in Tonga;

f) she is unable to file for divorce in Australia; and

g) she feels discriminated and disadvantaged if this court does not grant her divorce because she is abroad on the seasonal worker programme.

6. In the case of Kelepi v Kelepi [2024] TOSC 22 (unreported), Cooper J held that the tongan translation of domicile under the Tongan version of the Act as “nofo fonua” was closely aligned to the concept of residence, after examining the use of the words in other legislations.
7. His Honour opined that “nofo fonua” refers to “where one lives and so resides” and that pursuant to s.21 of the Interpretation Act, the Tongan version of the Divorce Act in this respect gives true meaning to the Act. I agree.
8. Further, in the case of Tulanga v Tulanga (FD 196 of 2023)(unreported), the definition of the word “nofo fonua” under s.8 of the Nationality Identity Act was adopted. In Tongan, it reads:

“8. ‘Uhinga ‘o e nofo fonua

Ki he ngaahi taumu‘a ‘o e Lao ni, ko e taha ‘oku nofo fonua ‘i Tonga kapau ‘oku ne ta‘u 14 pe lahi hake, pea —

(a) kuo nofo ‘i Tonga ‘i he ngaahi mahina ‘e 6 kuo hili;

(b) kuo hu mai ki Tonga ‘o fakataumu‘a ke nofo ai ‘o ‘ikai si‘i hifo ‘i he mahina ‘e 6; pe

(c) kuo ‘i Tonga ‘i ha vaha‘a taimi fakakatoa ko e mahina ‘e 6 ‘i loto ‘i he vaha‘a taimi ko e mahina ‘e 12 kuo hili”.

The English version of the Act reads:

“8 Definition of resident

For the purposes of this Act, a person is resident in Tonga if he is 14 years of age or more, and —

(a) has been present in Tonga for the preceding 6 months;

(b) has entered Tonga intending to remain there for not less than 6 months; or (c) has been present in Tonga for a cumulative period of 6 months within the preceding period of 12 months.”

9. It is my view the words “domicile” and “resident” in the Divorce Act mean the same thing, that is, “nofo fonua” as in the Tongan version of the said Act. Unless the legislation is amended to explain or define those words to be different, they are the same. I also adopt the definition of “nofo fonua” given under the National Identity Act as in Tulanga.
10. Returning to the Petitioner’s affidavit, it is clear that by all intentions, she will remain in Australia to fulfil the purposes of earning enough money to build a house for her, her daughter and mother. That is laudable.
11. However, that does not impact the requirement in s. 3 of the Divorce Act that a petitioner is domiciled in Tonga at the time his/her petition for divorce is instituted.
12. As to her claim that she is unable to file for divorce in Australia and that she is discriminated and disadvantaged as a result. She is respectfully misled. The Australian Family Law Act 1975, s. 39 (3) provides as below:

“Proceedings for a divorce order may be instituted under this Act if at the date on which the application for the order is filed in a court, either party to the marriage;

a) is an Australian citizen;

b) is domiciled in Australia; or

c) is ordinarily resident in Australia and has been so resident for 1 year preceding that date.”

13. The Petitioner has been resident in Australia for over 2 years and qualifies under s.39(3)(c) to file for divorce there. The real reason behind her inability to file for divorce in Australia may be due to her current legal status in that country as opposed to any alleged discrimination.
14. I sympathise with the petitioner’s situation, however, it is the court’s primary role to apply the law as legislated. The current position of the law does not allow for an interpretation to include petitioners who are not domiciled (nofo fonua) in the Kingdom at the time they file a petition for divorce. This includes the petitioner in this instant.
15. Further, she has indicated she would return in March 2026. If and when that happens, she may bring her petition for divorce then.
16. This petition for divorce is dismissed with no orders as to costs.
    

P. Tupou KC

JUDGE
Nuku’alofa: 28 February, 2025

^[1] See section B (6)(e ) and (f) of Petition