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Halapua v Tonga [2004] TongaLawRp 33; [2004] Tonga LR 211 (30 July 2004)

IN THE COURT OF APPEAL OF TONGA

Halapua

v

Tonga

Court of Appeal, Nuku'alofa
Burchett, Tompkins, and Salmon JJ
A 7/04

26 July 2004; 30 July 2004

Dissolution of marriage – appellant opposed decree nisi – separation not mutual – appeal dismissed

The parties married on 24 May 1969. There were three children of the marriage, all of whom are now over 25 years of age. The respondent left the appellant in October 2000. He went to live with another woman with whom he still lives and by whom he has had a child. The respondent sought a divorce because he started a new home and family. The Chief Justice found that the appellant maintained contact with the respondent by visits and telephone calls. She had hoped by such contacts to restore their relationship. She said she would like to have him back home and that the children share that wish. The Chief Justice also found that the respondent had not maintained and had no intention of maintaining or renewing normal marital relations with the appellant and held that position since he left. By a petition for divorce undated but filed in the Court on or about 19 November 2002, the respondent sought an order that the marriage between him and the appellant be dissolved. The petition was on the ground that the parties had been separated for over two years and that ". . . there will be no further reconcile in their marriage. . ." By an answer dated 24 July 2003, the appellant sought an order that the respondent's petition be dismissed and further consequential orders. In her answer, the appellant admitted that ". . .they were separated for more than 2 years . . ." The appellant denied that there would be no reconciliation. After a defended hearing, the Chief Justice granted the respondent a decree nisi to be made absolute after 6 months. He adjourned to a later date the question of financial provisions for the appellant and noted that there could be no decree absolute until those matters were resolved. On 14 June 2004, the appellant applied for leave to appeal out of time. The respondent did not oppose and the application was granted.

Held:

1. The Court concluded that the phrase "have been separated" in paragraph (f) should be interpreted as equivalent to "have been living apart" after taking into account the meaning of the phrase in the context of paragraph (f), the provisions of s 3(1) as a whole and the authorities. If the parties were separated in the sense of living apart for the requisite time, the paragraph provided a ground for divorce if the other requirements were satisfied. There was no basis for importing into the provision a requirement that the separation must be with the consent, expressed or implied, of both parties.