Vicencio v East [1981] PGNC 8; N288(L) (9 April 1981)

N288(L)

PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

BETWEEN:

VIRGINIA E. VILLA VICENCIO
PETITIONER

AND:

SELWYN JOHN REGINALD EAST
RESPONDENT

Waigani: Pratt J
30 March 1981; 9 April 1981

RELIEF SOUGHT FROM CONSEQUENCES OF CRIMINAL ACT - nullity of marriage - previous existing marriage - prima facie bigamy by petitioner - circumstances permitting Court action to grant relief include public benefit, absence of improper motive, not contrary to public policy and not an abuse of process.

Order in favour of petitioner.

Cases Cited
Re an Infant G and the Adoption of Children Act 87 W.N. (Pt.1) (N.S.W.) 561
In re Adoption Application 52/1951 (1952) 1 Ch. 16
Sheppard v. Sheppard [1905] UKLawRpPro 16; (1905) P. 185
Sara v. Sara 36 D.L.R. (2d) 499
R. v. Pinkstone (1888) 9 N.S.W.L.R. 201
R. v. Cousins (1865) 4 S.C.R. (N.S.W.) 1
Mayer v. Blits [1939] VicLawRp 9; (1939) V.L.R. 136

9 April 1981

PRATT J: The petitioner applies for an order of the Court nullifying the marriage she entered into on the 14th day of March 1979, at the Civil Registry in Port Moresby to one Selwyn John Reginald East. The ground stated in the petition and supported by affidavit and on oath before me, is that at the time there existed a subsisting marriage which had been celebrated at the Local Civil Registry in the Rizal Province of the Republic of the Philippines between the petitioner and one Dante Villavicencio on the 29th December 1975. The petitioner swore that her first husband is still alive and had written to her as recently as February this year. I accept on the evidence and the exhibits tendered that such marriage was entered into and that it has continued till the present. A statement of part of the law on divorce in the Philippines certified by one Enrique P. Syquia, a Notary Public of Manila, confirms counsel’s statement that divorce in that country is not readily obtained. I also note that under Article 80(4) of the Civil Code of the Philippines, bigamous marriages are "void from the beginning".

An affidavit sworn by David William Lyons and filed herein discloses that a copy of this petition together with a notice of petition was served on the respondent at the offices of M. G. Lyons & Co., Solicitors, at Goondoon Street Gladstone in the State of Queensland on the 19th December 1980. No answer has been filed by the respondent and no application has been received to extend time. In a letter addressed to the Registrar of the National Court in Port Moresby, dated the 29th January 1981 and headed "Subject: M.C. No. 23 of 1980" and further disclosing a Post Office box address in Strathpine, Queensland, the writer says inter alia:

"I do not intend contesting the actual annulment as it is my desire to be free to marry again as soon as possible."

The petitioner has identified the signature on that letter as that of the present respondent.

Application was made to dispense with service of notice of trial under s.100(2) of the Matrimonial Causes Act, and in the circumstances of this case I ultimately decided to grant such order.

There have been no children born of the "union" between the petitioner and the respondent. The parties effectively separated in June or July of 1979. Following that date the petitioner commenced an association with a Mr Allen and apart from separations caused by frequent trips on the part of the petitioner back to Manila, that association has continued to the present. I must say I find the petitioner’s conduct puzzling, to say the least, but except for one area which I shall mention later it does not really affect the issues before me.

The petition is grounded on s.40 of the Matrimonial Causes Act in combination with s.20 of the Marriage Act which makes void a bigamous marriage. It may not be without some significance that under s.18 of the Matrimonial Causes Act, jurisdiction to support a decree in respect of a voidable marriage must be founded on domicile, whereas domicile OR residence is stipulated in relation to proceedings to decree a marriage void. The provisions of s.18(6) of the Act relating to Australian domicile do not have any application to this case. On the facts before me the petition has certainly not established domicile. If her petition had been one requesting a decree of nullity of a voidable marriage or a simple decree for dissolution on one of the many grounds set out in s.21 of the Act, she could not succeed. However the legislation has been less restrictive in the case of void marriages, and it remains to determine whether or not the petitioner has established "residence" within the meaning of the Act. The authorities are far from clear in this area of the law and much seems to depend on the facts of each case. The authorities quoted in Volume 4 of Stroud’s Judicial Dictionary (Fourth Edition, p.2358 f.f.) use such phrases as "the place where an individual eats, drinks and sleeps" or where a man "habitually sleeps", that he may have two different residences, but does not require "intelligent residence and so on. The phrase "domiciled or resident" occurs in s.8 of the New South Wales Adoption of Children Act and was considered at length by Myers J. in Re an Infant G and the Adoption of Children Act¹[1] His Honour adopted the general proposition of Harman J. in the reported decision In re Adoption Application 52/1²[2]where His Lordship cites with approval a definition of Lord Cave taken from the Oxford Dictionary, "to dwell permanently or for a considerable time, to have one’s settled or usual abode, to live in or at a particular place". To borrow the expression used by Myers J. at p.562 of the New South Wales Report, the term "denotes some degree of permanence". In the ultimate the decision of course is one of fact for determination by the individual tribunal.

On the evidence before me, there would be great difficulty in establishing that the plaintiff had been resident in Papua New Guinea within the meaning of the Act from the date of her first arrival here in February 1978 until September last year, and that despite the fact she underwent a ceremony of marriage in March 1979. Since September there has been a cessation of constant movement in and out of the country, and I feel a sufficient "degree of permanence" has been established albeit the petitioner’s present entry visa expires on the 19th April and it is her intention to return to Manila on the 1st April. I admit to some hesitation in making such a finding but I think on the balance of probabilities it is justified. Although the petition was instituted only in November 1980, I may take some cognisance of what has happened since that date in order to ascertain whether residence existed at the time of instituting the proceedings.

The Act clearly makes provision for a party to obtain redress from the courts where a marriage is void. No problems would exist where the petitioner was an innocent party. Although a degree of nullity is permitted, it does not however terminate anything. The "marriage" which resulted from the ceremony between the petitioner and the respondent on the 14th March 1979 is not a marriage at all and therefore strictly speaking there is nothing to be annulled. To adopt the words of Sir Gorell Barnes P. in Sheppard v. Sheppard^[3]:

"In cases of that kind," (a bigamous marriage) "where the woman is not the wife, no decree of this Court has any operative effect. It does not make her a wife or make her not a wife; it merely records that fact that she is not the wife; and, in strictness, there is in such cases no necessity for a suit for nullity, but it is a matter of great importance and convenience to place the fact on record. Such cases are on a different footing to suits for nullity on the ground of impotence. In the cases where there was no marriage the woman was not a wife, and therefore, as wife, she could not pledge the man’s credit ..."

Whilst this case is not one dealing with nullity, I nevertheless consider that Sir Corell Barnes has expressed most succinctly the legal position on the matter.

The situation which has presented itself before me is unique to say the least. The petitioner has sworn that she has entered into a bigamous union. Prima facie that would appear to be an admission of a criminal offence. She says that such marriage however was performed as a result of duress on the part of her would-be husband. A court may be justifiably hesitant to come to a finding of fact when it has before it only one side of the story, especially in the matrimonial jurisdiction. In this area however I must remind myself that I am dealing with a person whose social and cultural background is not only different from my own but is one of which I have no knowledge at all. I think therefore I must be slow to express doubts unless I am in possession of greater factual material than would be permissible within the fairly limited confines permitted by the present application.

I am conscious also of similar limitations when I come to consider the reason given by the petitioner for this application. Reference was made in the witness box to a large bundle of correspondence received by her and Mr Allen from the respondent over the past months and it is hoped by the petitioner that a court declaration "annulling" the marriage will bring this correspondence to an end. It is undoubtedly making the petitioner very unhappy and may be regarded as something like a war of attrition. I also cannot ignore the fact that by coming before this court, the petition has deliberately chosen to lay herself open to a criminal prosecution. The motivation therefore to apply for the present order is obviously a very strong one - perhaps stronger than that reflected in the reasons put forward by her in the witness box - but I am left with the distinct impression that the purpose is neither sinister nor ulterior. I cannot see what personal advantage can be obtained by the petitioner in pressing her application and there is decidedly one very distinct disadvantage.

Whether or not there is a discretion vested in the court to refuse an application under s.20 of the Matrimonial Causes Act on the grounds that the petitioner has failed to come to court with "clean hands" may be open to some debate. In the recent text by P. W. Young "Declaratory Orders", reference is made at para. 804 to a South African decision of Steyn J. in the following terms:

"I have grave doubt as to whether what counsel has called ‘equity’ (a term which is so often used as a meaningless catch-call) should play a part in this connection. I am prepared, however, without so deciding to accept that ‘equitable’ considerations can be taken into account when a court decides whether to grant a declaratory order."

In the same paragraph the learned author refers to the Canadian decision of Sara v. Sara^[4]. In that case the petitioner was not able to proceed for a decree of nullity under the Divorce and Matrimonial Causes Act because the marriage which he had undergone was polygamous. He therefore proceeded to apply in equity for a declaration that the marriage was void and consequently his conduct in the whole affair became very relevant when considering the equitable doctrine of "clean hands". At p.506 of the report the British Columbia Court of Appeal had this to say:

"... he used the relationship of husband to obtain entry into Canada as a landed immigrant and her support of him as husband until he became established here. From the time of their marriage until the plaintiff ceased to live with the defendant the defendant provided the housekeeping monies. The plaintiff made no regular contribution though he says he did make gifts to the daughter. Having pretended a marriage and having obtained the benefits he desired therefrom, he now says that he was never married and asks the court to assist him so to declare, and thereby assist him to cast off the defendant and to undertake a marital relationship with another woman. That is conduct to which the Court of Equity should not become a party."

What is clear and beyond doubt however, and irrespective of whether this court in exercising its matrimonial causes jurisdiction may or must follow equitable principles, is that any court has power to prevent abuse of its own process and would certainly not countenance conduct which would be regarded as contrary to public policy. It is not unknown for one who has done wrong to approach the courts for relief. For example, various cases involve proceedings for Quo Warranto arising out of political elections in which there have emerged some questionable litigants In R. v. Pinkstone^[5] Windeyer J. said:

"Looking at the cases cited, it seems to us that the Court has laid down the rule that it will not grant the writ where the relator does not come to the Court with clean hands. Where the relator comes, not in the interest either of the municipal council or ratepayers, or of the public generally, but, as we think he has come in this case, to suit his own ends, the Court is bound to carefully scan his conduct ..." (my underlining)

In R. v. Cousins^[6] Stephen C.J. states:

"The writ of quo warranto issues in order to obtain substantial justice; and the Court, therefore, does not allow the information to be filed, if thereby irreparable injury is likely to arise. The law also requires that a person claiming the assistance of the Court, should come into Court with clean hands, and that it should appear that such person has not been an assenting party to the irregularity complained of, or been himself guilty of any such irregularity on any former occasion."

Finally, if I go to the Victorian case of Mayer v. Blits^[7], Mann C.J. states:

"It was contended that in the past the applicant had been a member of the council while under disqualification for interest, including an interest similar to that which he now alleges against the respondent, and that he had acquiesced over a long period in the respondent retaining his seat, refraining from such proceedings as the present for his own purposes; that ... he is actuated solely by motives of private enmity."

As His Honour ultimately found that the motive for applying to the court was "to satisfy feelings of personal enmity", the application was rejected.

In the particular circumstances of the present case I cannot see that public policy would be harmed or any advantage achieved or private enmity satisfied by the petitioner if I am to grant the decree sought. Indeed it can be truly said that in granting the petition, I am not really affecting anyone at all (unlike Sara v. Sara (supra (4)) for I cannot unmake something which never came into existence. Provided there is satisfactory proof that one of the parties was already married to someone else and that that marriage still existed at the time of the second ceremony, that is an end to the matter. There is no person affected in these proceedings who is not a party or who had the opportunity of becoming a party to the proceedings and I have no evidence before me which would justify an inference that some dishonest or improper motive lay behind the application. It seems to be a case where to have the situation rectified publicly would be a matter of public importance and benefit. I therefore grant the order sought

Obviously it is incumbent on me to refer the papers to the Public Prosecutor for his consideration, although I understand from counsel for the petitioner that the Public Prosecutor has already been apprised of the present application, and I shall so do.

I therefore order that the marriage of the petitioner Virginia Espino Villa Vicencio to the respondent Selwyn John Reginald East performed under the provisions of the Marriage Act 1963 at the General Registry Office, Port Moresby on the 14th day of March 1979, is hereby declared null and void.

Solicitor for the Petitioner: Francis & Francis
Counsel: D. Francis

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^[1] 87 W.N. (Pt. 1) (N.S.W.) 561
^[2] (1952) 1 Ch. 16 at 22
^[3] [1905] UKLawRpPro 16; (1905) P. 185 at 191
^[4] 36 D.L.R. (2d) 499
^[5] (1888) 9 N.S.W.L.R. 201 at 206
^[6] (1865) 4 S.C.R. (N.S.W.) 1 at 9
^[7] [1939] VicLawRp 9; (1939) V.L.R. 136 at 144