Tong v Tong [1990] SBHC 66; HC-CC 123 of 1990 (19 November 1990)

HIGH COURT OF SOLOMON ISLANDS

Civil Case No. 123 of 1990

MADALINE MAE FUN TONG

-v-

SAN TONG & HAN XIAO

High Court of Solomon Islands
(Ward C.J.)

Hearing: 9 and 14 November 1990
Judgment: 19 November 1990

A. Nori for the Petitioner
T. Kama for the Respondent

WARD CJ: This is a wife's petition for divorce on the grounds of adultery with one Han Xiao Hong. The respondent does not admit the adultery or claims the petitioner connived in it. He cross petitions on the grounds of her adultery with one Alan Draeger, a man in Australia called Paul and one Darryl Shelley. The parties are not Solomon Islanders in the terms of the Interpretation Act and so the case has been brought under the English Matrimonial Causes Act 1950.

The parties were married in 1977 and have 6 children ranging in age from 13 to 5 years old. It is clear that, from about 1986, the relationship started to deteriorate with arguments becoming more frequent until, in 1985, they separated and signed a separation agreement in August.

The respondent alleges one of the causes was that the petitioner had been committing adultery with Alan Draeger. The petitioner denies such a relationship. She admits she went out sometimes with Draeger but only as a good friend. She stayed in his house after she left the respondent but her sister was there and she never had any sexual relationship with him.

Following the separation agreement, the petitioner went to Australia and stayed there with the children. In her house for some of that time was a man called Paul who had previously worked in Honiara. The petitioner denies any sexual relationship with him.

In late 1988 the respondent met Han Xiao in China and started a relationship with her. In 1989, she came and lived with him in Honiara. Despite the denial in the pleadings, the adultery is admitted. However, the respondent's case is that, once the separation agreement was signed, the marriage was effectively over and both he and the petitioner agreed each could find another sexual partner. He told the court that the petitioner met Han Xiao and even gave her small gifts. This was supported by Han Xiao but emphatically denied by the petitioner.

Although she denies any such connivance in the respondent's adultery, the petitioner also admits adultery with Darryl Shelley with whom she now lives and has done since some time earlier this year.

I do not repeat all the evidence here. I found the petitioner's evidence was inconsistent in important details such as her lack of acceptance of Han Xiao, her general relationship with Draeger and her recent conduct. She was emotional and clearly deeply hurt by many of the events between her and her husband.

The respondent gave the impression of a man who reacted to the situation with considerable with considerable anger and vehemence.

As far as the allegation of adultery with Draeger is concerned, I am satisfied it did occur. The circumstances of the petitioner's relationship with him sufficiently satisfy the burden of proof. The petitioner's own admission whilst short of any sort of sexual relationship are sufficient to corroborate the circumstances on which I base my finding of adultery.

I am not satisfied to the required standard that the petitioner committed adultery with Paul.

The adultery by the respondent with Han Xiao and by the petitioner with Shelley are both admitted and proved clearly on the evidence. However, I found the evidence by the Respondent of an agreement, after the separation agreement was signed, to take another girl friend was credible and I accept it occurred.

The burden is on the petitioner to disprove the connivance alleged by the respondent and she has failed so to do.

The burden is on the respondent to disprove connivance by him in the later adultery by his wife with Shelley. His evidence of the agreement referred to above, prevents him claiming it at that stage and there has been no evidence from which it could be concluded the connivance was spent.

I therefore dismiss the petitioner's case against the respondent but I find the respondent's cross petition proved in relation to the adultery in 1988 but dismiss it in relation to the adultery with Paul and Shelley.

I therefore order a decree nisi to the respondent.

As far as costs are concerned, I feel the nature of the pleadings means I should make no order for costs.

(F.G.R. Ward)
CHIEF JUSTICE