IN THE FAMILY DIVISION OF THE MAGISTRATE’S COURT
AT NASINU

Family Court Case No. 277/2012

D K
[Applicant]

-v-

R S
[Respondent]

BEFORE: RESIDENT MAGISTRATE: MR. SUMUDU PREMACHANDRA

APPLICANT : in person
RESPONDENT: in person 

Trial Details

Date of Hearings: 24th January and 14th February 2013
Judgment : 30th April 2013 at Nasinu, Fiji

JUDGMENT ON DIVORCE

A. The Application

1. This is an application (form 1) for Divorce by the applicant lady. 

B. The Response

2. The Respondent has filed his response form 4. Parties were counseled but no outcome.

C. The Issues

3.	(i) Whether the parties have separated over one year ;

(ii) Whether their marriage has irretrievably broken down?

(iii) If so, will Form 1 for the Respondent succeed? 

D. The Evidence

4. The Applicant and the Respondent gave sworn evidence under oath. The Respondent gave sworn evidence and called another witness.

5. The applicant lady gave evidence first. In her testimonies she told the court briefly that she married to the respondent on 31st of March 2011. The Respondent is her legal husband. She said they have separated because of her work commitment. She was working in Lakeba Island as Nurse. Before they separate, their marriage was consummated. She said the date of separation is 21st April 2011. And that was the last date they had sexual contact. After that she moved to Labasa. She further said their parents did not agree to the marriage and she does not want to stay with the respondent as she wants to move on with someone else. 

6. There was no cross examination though right to cross examine was explained to the Respondent. 

7. Thereafter the Applicant closed his case.

8. Then the Respondent gave evidence. The Respondent said that before the marriage they lived in a de facto relationship for 4 years. And all holidays and weekends they lived together. After marriage, the applicant said her parents are not agreeing and she got transfer to outer island, Lekeba. The Respondent said now she in extra marital affairs. The Respondent says he want to reconcile with the applicant and continued with the marriage as they are young. He doesn’t want to be called as “Divorcee”. He said the relationship went till January 2012 and he objects the date of separation. 

9. There was no cross examination though right to cross examine was explained to the Applicant

10. The Respondent called Ashish Jani Rattan. This witness said he met and dropped the couple several times. He said on 02nd March 2012, he dropped them and they were normal. He said the date of separation in April 2011 is wrong, he drop them on 02nd March 2012. 

11. There was no cross examination though right to cross examine was explained to the Applicant. 

12. Thereafter the Respondent closed his case.

E. Law on Divorce:

13.	Grounds for dissolution of marriage have been given in section 30 of the Family Law Act 2003. I reproduce it for clarity.

“30.-(1) An application under this Act by a party to a marriage for an order for dissolution of the marriage must be based on the ground that the marriage has broken down irretrievably.

(2) Subject to subsection (3), in a proceeding instituted by an application, the ground will be held to have been established, and an order for dissolution of the marriage must be made, if, and only if, the court is satisfied that the parties have separated and have thereafter lived separately and apart for a continuous period of not less than 12 months immediately preceding the date of the filing of the application for dissolution of marriage.

(3) An order for dissolution of marriage will not be made if the court is satisfied that there is a reasonable likelihood of cohabitation being resumed.”

F. The Findings

14. I now consider the evidence. The date of separation is disputed by the Respondent. The Applicant in her evidence said they separated on 21st April 2011. They Respondent said they were living together till 02nd March 2012. To prove that he called one witness Mr. Rattan. He said he dropped the couple and they were as normal. In Form 1 the Applicant mention 21st April 2011 as the date of Separation. But, the Respondent said whenever they met they lived as husband and wife. 
 
15. In this case the main question is to decide by the court is what is the date of separation? Normally, it is quite clear when the separation occurs; there is an abrupt event that ends the marriage. For example, one spouse may leave the home, or one spouse may move to a different bedroom. Sometimes, a marriage gradually deteriorates over time, and it is not very clear when the marriage ended. The determination of the exact separate date is vital in two ways. That is date of separation is needed to count that the parties have separated over one year in their marriage to get divorce. On the other hand separation date may make a significant difference in how property is divided in a divorce. This is called as “the Valuation date” in a property issue. In this case it is vital to decide the exact separation date to see that they have separated over years and a day. 

16. How is the exact date of separation determined? In Hodge v. Canada (Minister of Human Resources Development), 2004 SCC 65 (CanLII), [2004] 3 S.C.R. 357 at para. 42, The Supreme Court of Canada has emphasized the intention of the spouses to end their relationship in determining when spouses separate is sine qua non. 

17. Justice Quinlan in Oswell v. Oswell 1990 CarswellOnt. 278 (SCJ), aff’d 1992 CarswellOnt. 306 (C.A.), (1990), 28 R.F.L. (3d) 10 (Ont. H.C.J.); aff’d (1992), 43 R.F.L. (3d) 180 (Ont. C.A.] discussed at length the factors are to be taken into consideration when deciding the actual date of separation. He stressed that the valuation/separation date is determined by looking at a divorcing spouse’s true intent, rather than the spouse’s stated intent. Factors that must be examined by the court are:

•	physical separation (for instance, living in separate bedrooms)
•	absence of sexual relations
•	discussion of family problems
•	communication between the spouses
•	joint social activities
•	meal pattern
•	performance of household tasks
•	method in which spouses filed income tax returns
•	when a spouse makes plans for his assets as a separated person
•	adultery
•	communications about separation
•	consultation with a lawyer
•	joint vacations
•	gifts between spouses
•	joint activities at home together (TV watching, tea in bed, etc.)
•	visiting each other’s relatives

18. In common law jurisdiction have added some other factors to examine in determining the date of separation as well. These factors are:

•	appearance to outside world
•	gifts and cards sent in joint names
•	change of beneficiaries on insurance plans, RRSPs, etc.
•	purchase of property without consulting the other spouse
•	changing will
•	communication of marriage breakdown to others
•	corroborating evidence of third parties
•	interest by spouse in trying to make the marriage work
•	collaboration on renovations to home
•	major arguments
•	unsigned previous separation agreements
•	religious beliefs about initiating separation or divorce
•	one divorcing spouse telling the other that she did not love him or want to have anything to do with him
•	celebration of holidays and important events (weddings, anniversaries, funerals) together

18. The Supreme Court of Canada in M. v. H. [1999] 2 S.C.R. 3 at para. 59 addressed the issue endorsing a case as follows:

"Molodowich v. Penttinen 1980] O.J. No. 1904, 17 R.F.L. (2d) 376 (Dist. Ct. .sets out the generally accepted characteristics of a conjugal relationship. They include shared shelter, sexual and personal behaviour, services, social activities, economic support and children, as well as the societal perception of the couple. However, it was recognized that these elements may be present in varying degrees and not all are necessary for the relationship to be found to be conjugal. ... In order to come within the definition, neither opposite-sex couples nor same-sex couples are required to fit precisely the traditional marital model to demonstrate that the relationship is "conjugal".

19. As the Ontario Supreme Court in Taylor v. Taylor 1999 CarswellOnt 4653 held the issue as follows;

"At what point between the marriage date and the divorce date, did this marital relationship die? This question, as phrased, suggests an almost mechanical approach to such a significant and cherished relationship. The reality is that most people, and the Taylors are no exception, make a significant emotional investment in a marriage relationship which becomes, with the passage of time, a part of their very being. Understandably when a relationship is ailing the emotional tapestry that each party had originally brought to the relationship impacts upon the partner's view as to the health and future of the relationship. Such relationships rarely end in a twinkling of an eye, but rather whither over time.

20. If I apply these factors to this case, the applicant said that they were separated on 21st April 2011. But the Respondent denied the date of the separation. It seems though they lived far away, they were communications and they met whenever possible. It proves the Respondent's witness's evidence. The marriage was broken when a third party has crept into their relationship. The Respondent still invites the applicant and only reason that the applicant refuses to go with him is that she has moved on with someone else. She mentioned that in her evidence in chief. They were refeered for counseling by this court but it failed. Our family law allows guilty party to take a divorce at their choice. But it is sine qua non to complete one year separation before date of filing. The date of filing of this case is 30th May 2012. There was evidence that they met on 02nd of March 2012 as normal husband and wife and this is three months before filing this case. In this case the Applicant has failed to prove that they were separated over one year before filing date. 

21. Therefore I answer triable issues in this case are as follows; 

(i) Whether the parties have separated over one year; NO

(ii) Whether their marriage has irretrievably broken down? Yes, Third Party has involved. 

(iii) If so, will Form 1 for the Respondent succeed? No

12. Considering all these facts, I make following orders;

i)	Application for divorce (Form 1) is dismissed.

ii)	No Cost.

Orders Accordingly

30 days to appeal

SUMUDU PREMACHANDRA [Mr.]
RESIDENT MAGISTRATE
30-04-2013