Balou v Kokosi [1982] SBHC 6; [1982] SILR 94 (19 July 1982)

[1982] SILR 94

HIGH COURT OF SOLOMON ISLANDS

Civil Appeal Case No. 4 of 1982

BALOU

-v-

KOKOSI

19^th July 1982

For Appellant: F Mwanesalua
For Respondent: G. Strang

Marriage - Part III Affiliation, Separation and Maintenance Act 1971 - "married woman" meaning of-custom marriage –whether valid in law-S. 4 Islanders Marriage Act-Islanders Divorce Act-Constitution Schedule 3(3).

Facts:

The Respondent and Appellant were validly married in custom. The Respondent applied for and was granted orders under Part III of the Affiliation, Separation and Maintenance Act 1971 by a Magistrates' Court. The Appellant appealed on the basis that the Respondent was not a “married woman” within section 10 of that Act.

Held:

Reading Section 10 against the background of earlier legislation dealing with matrimonial matters and in particular section 4 of the Islanders Marriage Act, the words "married woman" included a woman validly married in custom. In any event Schedule 3(3) of the Constitution required the court to apply customary law and therefore where an Act refers to “marriage” it must also refer to a marriage valid in customary law. Appeal dismissed.

Case considered:

Kuang -v- Tovivil (1969 - 70) PNGLR 22

Daly C.J.: The parties to this appeal were married in custom on or about 1st June 1962 at Foueda Village, North Malaita. There is no dispute that the marriage was valid in customary law and continues in custom to subsist.

On 27th May 1982 a writ was issued by the Plaintiff wife claiming orders under Part III of the Affiliation, Separation and Maintenance Act 1971 (No. 8 of 1971: "the Affiliation Act"). On the 2nd July, 1982 the learned Principal Magistrate at Central Magistrates' Court after hearing evidence and submissions made a number of orders under that Part. The husband defendant now appeals to this court.

The point taken on appeal is a short one but of considerable public interest as it involves the right o f a number of wives in Solomon Islands to apply for orders in the magistrates' courts. The appellant submits that magistrates' court had no jurisdiction to entertain the respondent's application as the Affiliation Act does not enable relief to be granted to a woman who is married in custom and whose marriage has not been registered.

Jurisdiction to grant the relief sought is a statutory creation and therefore the starting point is the statute itself. Part III of the Act in section 10 provides:

"Any married woman .... may apply to the court for an order or orders under provisions of this Part"

Thus the question upon which this appeal turns concerns the meaning of the words "married woman" in Section 10. The question is, is the Respondent a "married woman" within that section? The Affiliation Act itself is silent on the meaning to be given to those words and no assistance can be gained from the Interpretation and General Provisions Act 1978 (No. 20 of 1978) other than in the general sections such as section 9(3) which states:

"Each Act shall be deemed to be remedial and shall receive such fair and liberal construction and interpretation as will best ensure the attainment of the object of the Act according to its true intent, meaning and spirit."

Thus the words must be given their natural meaning in the context of the Affiliation Act and against the background of the law in existence in 1971. As this court said in R. v. Kauwai (1980/81) S.I.L.R. 108 at p. 113 the Legislature "must be taken to have known the law at that time and to be using the words in the sense they have at the time (the Act) was enacted."

It is for this reason that it is permissible to look at earlier enactments dealing with marriage in order to see what was regarded as the law as to marriage when the Affiliation Act was passed.

In 1971 the enactments dealing with marriage were the Islanders Marriage Ordinance (as it the was) (Cap. 47) which came into force in 1945 and the Islands Divorce Ordinance. (Cap. 48) which came into force in 1960. There was also a reference to marriage in the Births, Marriages and Deaths Registration Ordinance (Cap. 43) which came into force in 1896.

Clearly the starting point is Cap. 7. This provides in Section 4:

"4. No marriage between Islanders celebrated after the coming into operation of this Ordinance, save and except a marriage celebrated in accordance with the custom of Islanders or in accordance with the provisions of the Pacific Islands Civil Marriages Order in Council 1907, shall be valid unless celebrated-

(a) before a minister of religion; or

(b) before a District Registrar."

Now this section expressly saves a marriage "in accordance with the custom of Islanders" from the exclusionary effect of the section and therefore it seems to me that such a marriage remained a valid marriage. Mr Mwanesalua argues that as that Act however goes on to provide for registration of custom marriages (see Section 18) and to exclude from the bigamy provision a person contracting a first custom marriage which is not registered who subsequently marries again (see Section 13), it put customary marriages in a different category which has the effect of denying to them legal validity. However I take the contrary view that Section 13 strengthens the conclusion that this Act contemplates the legal validity if a custom marriage as the legislature considered it to exclude persons contracting certain custom marriages from the bigamy provisions. If a custom marriage had no effect in law then it would not have been necessary to do so. All that the registration provisions do is to provide machinery whereby those contracting a marriage in custom can give to that marriage the statutory incidents attaching to a marriage celebrated by a minister of religion or District Registrar. The fact that a custom marriage which is not registered does not have those incidents does not make the marriage any the less valid or any the less recognised in law.

One of the statutory incidents to which I refer in the previous paragraph is the right to seek dissolution, annulment or an order fro separation in the High Court under the Islanders Divorce Act (Cap.48) (as it now is). Section 4 of that Act makes it clear that a custom marriage which is not registered is not within the scope of the Act and that remedies in relation to such a "marriage...may only be....ordered in accordance with the custom of Islanders". The Act is in fact silent about the tribunal or body which can grant such orders.

Again counsel for the Appellant seeks to argue on the basis of this Act that without registration a custom marriage is to be regarded as of no legal validity. It does not, in my judgment, follow that because one type of marriage is given certain characteristics in law, such as a capability of dissolution before a particular tribunal, another type of marriage without the characteristic is any the less legally valid. That a custom marriage remains nevertheless a ‘marriage’ is made clear from the terms of Section 4 of that Act. Perhaps I should add, in deference to the learned magistrate, something about the question of separation which is referred to in section 4 of that Act and a non-cohabitation order to be made under section 12(a) of the Affiliation Act. What caused the learned magistrate concern was the apparent conflict between the two provisions. However I do not, for my part, see any conflict. In the first place section 12(a) expressly refers to the effect of the order as being the same as a decree of judicial separation on the grounds of cruelty thus confirming that the legislature had considered the question of conflict and resolved it by making clear that a non-cohabitation order under the Affiliation Act, whilst having the same effect, was not the same as a separation order under the Islanders Divorce Act. Second, all the latter Act does is specify what is the proper law to be applied to separation issues in relation to custom marriages if no other provisions are specified. However the Affiliation Act does contain specific provisions and they would take precedence over custom law when that Act is applied (see Schedule 3 Para 3(2) of the Constitution).

In addition to these two Acts, in 1971, the Births, Marriages and Deaths Ordinance made specific savings in relation to non-registration of marriages "when both parties of any marriages are Islanders". (Section 17).

The conclusion I have reached from looking at this legislation is that in 1971 when the Legislature enacted the Affiliation Act, the statute law of Solomon Islands contemplated a valid from of marriage which was a marriage celebrated in accordance with custom.

Counsel for the Appellant has in his full researches discovered a law report from our neighbouring jurisdiction of Papua New Guinea which he suggested will assist me. This is the case of Darusil Kuang v. Eliah Tovivil (1969-70) PNGLR 22. In that case a complaint was made under the Deserted Wives' and Childrens' Ordinance of Papua New Guinea which, like our Affiliation Act spoke merely of "wife" without defining the term. The magistrate rejected the complaint on the basis "that the marriage between the parties, which was a native customary marriage and therefore potentially polygamous could not confer....any rights under the Ordinance". On appeal Frost J. held that this was a correct approach on the authorities applied in England and the New South Wales but that the terms of Section 55 of the Marriage Ordinance 1963 made a customary marriage valid "for the purposes of any law in force" and hence for the Deserted Wives' and Childrens' Ordinance. Counsel submits that in the absence of any clear section such as Section 55 of the Papua New Guinea Marriage Ordinance, this court must follow the early part of that decision and hold that the Affiliation Act confers no right upon the appellant in this case.

Well put as the argument has been, I cannot accede to it. Although our legislation is not as clear as Section 55 of the Papua New Guinea Marriage Ordinance, it seems to me to lead to the same result; that is, that a customary marriage is recognised as valid and, unless expressly excluded from legal provision relating to marriage, it must be governed by them and take benefits from them.

Even were this not so, I would not be disposed to accept the authorities referred to in the early part of Darusil Kuang v. Eliah Tovivil as of great assistance to me. My reasoning is based on Schedule 3(3) of the Constitution. This reads as follows:-

"3. (1) Subject to this paragraph, customary law shall have effect as part of the law of Solomon Islands.

(2) The preceding subparagraph shall not apply in respect of any customary law that is, and to the extent that it is, inconsistent with this Constitution or an Act of Parliament.

(3) An Act of Parliament may:-

(a) provide for the proof and pleading of customary law for any purpose;

(b) regulate the manner in which or the purposes for which customary law may be recognised; and

(c) provide for the resolution of conflicts of customary law."

As the marriage in this case is valid in customary law it follows that in accordance with para 3(1) that it is valid in accordance with the law of Solomon Islands. Thus when an Act of the legislature talks simply of a 'marriage' it must, in my judgment, be construed as referring to all marriages valid in Solomon Islands law. It must then also refer to a customary marriage. This construction would be necessary in order to bring the Affiliation Act into conformity with the Constitution in accordance with section 5(1) of the Solomon Islands Independence Order 1978 were it not a construction which, in my judgment, follows from the terms of the Act itself and the earlier legislation relating to marriages.

Counsel argued that because Parliament had not taken advantage of subparagraph (3) of Paragraph 3 of Schedule 3 to the Constitution and passed an Act to deal with the matters set out in that subparagraph, then customary law had not as yet become part of the law of Solomon Islands. With all respect, that is a bad point and if it has any currency the sooner it is discarded the better. Subparagraph (3) is permissive; hence the use of the word 'may'. The fact that Parliament has exercised a power available to it cannot affect in the slightest the clear words of paragraph 3(1). As from 7th July 1978 customary law has been part of the law of Solomon Islands and must be enforced as such.

I therefore find, as did the learned magistrate, that as the customary marriage of the parties is one valid and recognised in law, then where the Affiliation Act refers to a married woman it refers to the Respondent and she is entitled to take action under Part III of that Act.

The proceedings below were within the jurisdiction of the court. The appeal is dismissed and the case remitted to the Principal Magistrate sitting at the Central Court to continue with the hearing.

Order accordingly.

Appeal dismissed with costs.

Daly C.J.