Ne'e v Ne'e [1993] SBHC 19; HC-CC 165 of 1993 (24 June 1993)

HIGH COURT OF SOLOMON ISLANDS

Civil Case No. 165 of 1993

NE'E

-v-

NE'E AND ANOTHER

High Court of Solomon Islands
(Muria CJ.)

Hearing: 24 June 1993
Judgment: 24 June 1993

F. Waleilia for Petitioner
The Respondent in person, (not present)

MURIA CJ: On 24 June 1993 I granted a decree NISI to the petitioner dissolving her marriage to the Respondent. I said I would publish my reasons and I do so now.

The Petitioner brought this action against the Respondent seeking to dissolve their marriage on the ground of the Respondent's adultery with the named co-Respondent. The Respondent and Co-Respondent had been served with the petition but neither of them attended the hearing.

At the commencement of the hearing, I intimated to counsel for the Petitioner that the Respondent may very well wish to deny the allegation of adultery and may wish to defend the petition. In response counsel submitted that the Respondent and Co-Respondent had both been served with copies of the petition which contained the Notices that if they failed to attend, judgment would be given in their absence. Counsel further submitted that although the date of hearing was fixed for the 18 June 1993 at 9.00 a.m at which time the case was not able to be heard, the new hearing date of 24 June 1993 was known to the Respondent and Co-Respondent. Yet they chose not to attend.

Thus Counsel submitted that unless there was good reason shown for their non-attendance, the Court must proceed with the petition.

Having taken a few minutes to carry out a last check for the Respondent and CO-Respondent outside the court and around the Court's vicinity, the Assistant Registrar of High Court confirmed that both the Respondent and Co-Respondent were not present to attend the hearing.

After considering the submission by Counsel, I decided that the Petitioner should proceed with her petition in the absence of the Respondent and Co-Respondent.

It must be pointed out that when parties to an action are served with a hearing notice, they run the risk of the Court proceeding in their absence if they do not attend or notify the Court of their good reasons for not being able to attend the hearing. Where proof of service of the petition is given to the Court and the Respondent or Co-Respondent fails to attend, the Court is entitled to proceed in their absence.

The evidence for the Petitioner is that she and Respondent were married on 17 May 1986. After strains in their relationship the parties separated in latter part of 1990. The separation came about as a result of the Respondent's drinking habits and having sexual affairs with other women.

In early 1991, the Petitioner went to New Zealand for eight months. It was then that the Respondent started having an extra-marital relationship with the Co-Respondent. The respondent and Co-Respondent frequently used the matrimonial home to meet and sleep together.

The two witnesses called by the Petitioner testified that they had witnessed the Respondent and Co-Respondent going around together in the Respondent's car and to the dances at Hotels. One of the two witnesses gave evidence of seeing the Respondent and Co-Respondent frequently using the matrimonial home at nights. The witness's house is just next to the matrimonial home of the Petitioner and Respondent. Those evidence clearly corroborated the Petitioner's evidence.

I need not go through the details of their evidence. But on the evidence, the Court has been completely satisfied that the Respondent had committed the alleged adultery.

The other question for the Court to consider is the exercise of the Court's discretion regarding the Petitioner's adultery. The discretionary power of the Court in this regard is contained in the proviso to section 8(2) of the Islanders Divorce Act (Cap. 48) which states:

"Provided that the Court shall not be bound to pronounce a decree of divorce and may dismiss the petition if it finds that the petitioner has during the marriage been guilty of adultery..."

It will be observed that the discretion of the court is unfettered. However, there are factors which the court may consider before making its decision in such a case. Such factors were set out by Daly CJ in B -v- B (1982) S.I.L.R 5 at page 9. These are:

"(a) the position and interests of the children;

(b) the interest of the party with whom the petitioner has been guilty of misconduct, with special regard to their prospect of future marriage;

(c) the question whether, if the marriage is not dissolved, there is prospect of reconciliation between husband and wife;

(d) the interest of the Petitioner and in particular the interest that the Petitioner should be able to remarry and live respectably; and

(e) the interest of the community at large, to be judged by maintaining a true balance between respect for the binding sanctity of marriage and the public policy to insist on the maintenance of a union which has utterly broken down."

In that case, having considered those factors, Daly CJ refused to exercise the court's discretion in favour of the Petitioner. However, the facts of that case are different from the present case and as such they can be distinguished.

Considerations (a) and (b) are not relevant here. As far as (c) is concerned, the Petitioner did not show any inclination of forgiving with a view to reconciling with the Respondent. The court should in the exercise of its discretion ensure that the interest of the Petitioner in being able to remarry and live respectably is accorded with due consideration.

The marriage of the Petitioner and Respondent in this case has broken down. With no prospect of reconciliation, it would be contrary to public policy to insist on maintaining the union between the Petitioner and the Respondent when that union has utterly broken down.

In the light of the circumstances of this case, this court has come to the conclusion that this is a case in which it will exercise its discretion in favour of the Petitioner.

There will be a decree nisi.

(G.J.B. Muria)
CHIEF JUSTICE