Loni v Loni [2020] PGNC 57; N8250 (6 March 2020)

N8250

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

In the Matter of the Matrimonial Causes Act Ch. 282

MC NO. 04 OF 2018

BETWEEN
SHEENA LONI
Petitioner

AND
ALEXANDER LONI
First Respondent

AND
MIRIAM JACOB
Second Respondent

Alotau: Toliken J
2020: 13^th February, 06^th March

MATRIMONIAL CAUSE – Petition for dissolution of marriage – Petition contested – Several grounds including adultery – All abandoned at trial except ground for adultery - Adultery proved – No Condonation, connivance or collusion to defeat course of justice – Little to no chance of resumption of cohabitation - Order Nisi granted.

CO-ADULTERER– Claim for compensation under Matrimonial Causes Act – May no longer be available since passage of Adultery & Enticement Act 1989, s 21.

CUSTODY AND MAINTENANCE – Two Biological children and one adopted child over age of majority – One foster child – Not entitled to an order for maintenance – One minor biological child – Custody awarded to petitioner by consent with liberal access to First Respondent with order to contribute to educational expenses.

Cases Cited:

Wangunu v Wangunu; MC NO. 04 of 2015 (unreported and unnumbered judgment dated 24^th November 2016)

Overseas Case Cited:

Hyde v Hyde (1866) 1 P & D 130

Counsel:

P Palek, for the Petitioner
First Respondent, in person
Second Respondent, Nil Appearance

JUDGMENT

06^th March, 2020

1. TOLIKEN J: This is a defended suit by the Petitioner Sheena Loni (Sheena) for the dissolution of her marriage to the Respondent, Alexander Loni (Alexander). The Second Respondent Miriam Jacob (Miriam) is joined as co-adulterer. I heard the Petition on 13^th February 2020 and reserved. This is my short judgment.
   

Jurisdiction

2. Both Sheena and Alexander are automatic citizen from Milne Bay Province. Sheena comes from Daduwe village, Alotau District, Milne Bay province. She was born there on 13^th November 1969. Alexander comes from Gulewa village on Misima Island, Milne Bay Province. He was born 17^th April 1965. They are both domiciled in the country hence, this Court is sensed with jurisdiction to hear this petition for decree nisi for dissolution of the parties’ marriage. (Matrimonial Causes Act Ch. 282, s 14)
   

Ground s for Dissolution

3. Sheena originally pleaded four grounds to support her petition. These are
   
   • (a) Adultery
   • (b) Habitual cruelty
   • (c) Rape and sodomy
   • (d) Separation

4. At trial she, however, abandoned all other grounds except for the ground of adultery.

Facts

5. Sheena and Alexander got married before Mr. Wesley Malesa, Secretary to the Department of Milne Bay (now the Milne Provincial Administration), on 28^th April 1995. They lived together from 1995 to 2014 at different places and locations within Milne Bay Province. They in fact met and started living together in 1987 before legalizing their marriage in 1995. Alexander was an Agricultural Officer with the Milne Bay Administration. From 1988 to 1989 they lived in Bubuleta DPI Station and then moved to Alotau, where they resided at Redhill from 1989 to 2000. In 2000 he got transferred to Rabaraba. In 2005 he got promoted to the position of Rural District Development Officer a position he held until his resignation.

6. It appears that the marriage was not a happy one and was riddled with infidelity by both parties almost from the beginning. Before and after they legalized their marriage, Sheena had an affair with one Jonathan Paul, a police officer at the Alotau Police Station while employed as a KBO there. Alexander did not take any legal action then though. Then in 2011, Sheena started another extra-marital relationship with one Campbell Taumomoa while they were at Rabaraba. Of course, this led to disharmony and Alexander became abusive and violent toward Sheena. Things got so bad that Sheena left the matrimonial home on or about July 2014, had been living with Taumomoa ever since. Sheena had indeed filed a Discretionary Statement wherein she admits her relationship with Taumomoa.

7. Alexander on the other hand had not entirely been innocent himself. He too had had affairs with other women such as Clair Assena, Lily Abraham and Fen Abedagi. In March 2015, Alexander started a relationship with Miriam Jacob (Second Respondent), which according to him was prompted by Sheena’s continuous adultery and unfaithfulness and the humiliation he received from her when she chased him away from the home at Ahioma. She sued them for adultery in the District Court where they were ordered on 02^nd June 2015 to each pay her K500 compensation. Alexander is now living with Miriam and has a child from her.

8. The parties have not reconciled nor resumed cohabitation and there is very little to no chance of that ever happening since they have both moved on with their lives.

9. They have six children – four of whom are their biological children, while one was customarily adopted and the other lived with them on what I would consider a customary fosterage arrangement only. Alexander Loni Junior (adopted), John Loni, Maria Loni, and Olive Loni are all adults now, while Willy Loni (foster child) will turn 18 on 31^st March 2020 and Weizman Loni who was born on 03^rd April 2005, is the only minor among the children.

Issues

10. The broad issues fall for me to determine. These are –

1. Whether the petition should be granted?
2. Whether damages for adultery ought to be awarded?
3. Whether custody of the children (biological, adopted and foster) be awarded to Petition and Whether they are entitled to maintenance?
   

The Law

11. Section 17 of the Matrimonial Causes Act (the Act) provides exhaustively for the grounds for dissolution of marriage. These are sometimes called matrimonial offences. For the ground of adultery Subsection (a) of Section 17 relevantly provides:

17. GROUNDS FOR DISSOLUTION OF MARRIAGE.

Subject to this Division, a petition under this Act by a party to a marriage for a decree of dissolution of the marriage may be based on one or more of the following grounds:–

(a) that, since the marriage, the other party to the marriage has committed adultery;

...

12. For a petition to be granted, the petitioner must prove the facts alleged to constitute the ground for dissolution “to the reasonable satisfaction of the court” (Section 80 of the Act). A decree for dissolution shall not, however, be made on account of adultery and other grounds under Section 17 of the Act if the petitioner has condoned or connived at the adultery or if he has been guilty of collusion with intent to pervert the cause of justice. (Sections 27 and 28 of the Act) These are compulsory bars to a decree for dissolution.

13. Notwithstanding that, the court my still refuse a decree if one of the discretionary bars provided by Section 29 of the Act is made out. These are:

(a) the petitioner has committed adultery that has not been condoned by the respondent or that, having been so condoned, has been revived; or

(b) the petitioner has been guilty of cruelty to the respondent; or

(c) the petitioner has wilfully deserted the respondent before the happening of matters constituting the ground relied on by the petitioner or, where that ground involves matters occurring during, or extending over, a period, before the expiration of that period; or

(d) the habits of the petitioner have, or the conduct of the petitioner has, conduced or contributed to the existence of the ground relied on by the petitioner.

14. The bars to a decree for dissolution bespeaks of the law’s reluctance to countenance or permit easy divorce and because of its traditional view of the sacredness and permanency of the marriage union. This is borne out in the classical common law definition of marriage that it is “the voluntary union for life of one man and one woman to the exclusion of all others.” (per Lord Penzance in Hyde v Hyde (1866)1 P & D 130 at 133) Divorce is still very fault based in this jurisdiction and so a person seeking to dissolve his or her statutory marriage must prove to the reasonable satisfaction of the court one or more grounds under Section 17 of the Act, and further show that there are no mandatory or discretionary bars to prevent the grant of decree under Sections 27, 28 and 29 of the Act.

Deliberations

(i) Whether Petition should succeed

15. So, has Sheena proved to the reasonable satisfaction of the Court that Alexander has been guilty of adultery: Has she proved that the adultery she did not condone or connived at it or that she did not collude with Alexander to pervert the course of justice? And even if she did not, are there any discretionary bar upon which the Court may refuse a decree for dissolution, nonetheless?

16. There is no question that both her and Alexander had been guilty of adultery. There is also no question that Alexander’s latest adultery with Miriam had not been condoned or connived at by Sheena. This is evident from the fact that she had sued them in the District Court. There is no evidence that she and Alexander had colluded to pervert the course of justice. And yes, Sheena is herself guilty of adultery, but it appears that Alexander has condoned the adultery by not suing her in the appropriate court, nor did he say at trial that he had not condoned her adultery with Taumomoa. There is therefore no mandatory or discretionary bar to the grant of Sheena’s petition for a decree for dissolution of her marriage to Alexander.

(ii) Whether Custody of Children and Maintenance ought to awarded

17. Sheena also sought custody and maintenance for the children of their marriage. However, four of these children have already reached the age of majority hence are not entitled to maintenance nor to an order for custody. Of the remaining two, the parties agree that Willie may not be entitled to maintenance because he was only being fostered by them and in any case will be turning 18 at the end of this month. And so that leaves only the last child Weizman who is only 15 years of age. The parties agreed that Sheena shall have custody of Weizman with Alexander having liberal access.

18. The parties did not specifically address the issue of maintenance particularly with respect to Weizman. He is still a minor and still in school. His welfare and interest must therefore be given paramount consideration. While his physical and emotional needs may be adequately provided by Sheena, Alexander must continue to support him financially in regard to his education. It is therefore in his best interest that Alexander continues to contribute to his school fees and associated costs up to secondary and tertiary level.

(iii) Whether Petitioner is entitled to damages for adultery

19. Finally, Sheena did not pursue her claim against Alexander and Miriam Jacob the co-adulterer for damages for adultery. But even if she did, I do not think that she will have succeeded given the fact that she had already sued and secured orders against her and Alexander in the District Court. Furthermore, as I alluded to in passing in the case of Wangunu v Wangunu; MC NO. 04 of 2015 (unreported and unnumbered judgment dated 24^th November 2016), it may be implied that damages for adultery can no longer be claimed or awarded under the Matrimonial Causes Act, with the passage of the Adultery and Enticement Act 1988, Section 21 of which provides that, no claim or action for damages or compensation for adultery shall be brought or made except in accordance with that Act. No orders shall therefore be made against Miriam Jacob.

Orders

20. In conclusion, I shall therefore grant decree nisi for dissolution of the Petitioner’s marriage to the First Respondent. Custody of the child Weizman Loni shall be granted to the Petitioner with the First Respondent have reasonable access. The First Respondent shall continue to assist in equal portion with the Petitioner with the school fees and associated costs for the child Weizman Loni up to Secondary and Tertiary level, as the case may be. The parties are to meet their own costs.

Ordered accordingly.
_______________________________________________________________
The Public Solicitor: Lawyer for the Petitioner
The First Respondent In Person
Nil appearance for the Second Respondent