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James v James [2001] VUSC 72; Matrimonial Case 001 of 2001 (11 July 2001)

IN THE SUPREME COURT OF

THE REPUBLIC OF VANUATU

(Matrimonial Jurisdiction)

Matrimonial Case No.01 of 2001

BETWEEN:

CHRISTIAN JAMES

Petitioner

AND:

POLLETTE JAMES

Respondent

Coram: R. Marum MBE J.

Mr. Christian James – in person

Mrs. Pollette James – in person

JUDGMENT

Nature

Matrimonial.

Action

Petition for divorce.

Mode of Proceeding

Petitioner gave evidence and called one witness and Respondent did not give evidence and call no witness.

Grounds for petition

That the Respondent has since the celebration of the said marriage committed adultery with Gerald Alick at Port Vila in 1999.

Issue

Did the Respondent commit adultery with Gerald Alick at Port Vila in 1999?

Evidence

On the whole of the evidence of the Petitioner and, Josli, there was no evidence that Gerald had sexual intercourse with Pollette.

There was evidence from the Petitioner that Gerald and Pollette were going around together like, going fishing or gardening and so on and to him and others shows that there was a relationship between Gerald and Pollette. Josli gave evidence that Gerald told him that there was a relationship going on between Gerald and Pollette. Gerald was not called to verify to this Court the truth of that statement and at the close of the Petitioner’s case there was no evidence at all to prove that Gerald had sexual intercourse with the Respondent.

It is not easy to prove act of sexual intercourse. Furthermore, act of sexual intercourse are not always openly talked about and could see the difficulties of the Petitioner proving the act of sexual intercourse. Nevertheless, the Petitioner is still required to prove the act of sexual intercourse on the balance of probability.

At the close of the case and upon the evidence adduced, there was no evidence at all to prove that the Respondent committed adultery with Gerald. For these reasons, I find that the Petitioner failed to prove his case on the balance of probability and I dismiss the petition.

Dated at Port Vila, this 11th day of July 2001.

R. MARUM MBE

JUDGE.

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