Hepworth v Sikela [1994] SBHC 2; HC-CC 326 of 1993 (16 February 1994)

HIGH COURT OF SOLOMON ISLANDS

Civil Case No. 326 of 1993

ROSS HEPWORTH

-v-

MARY PALMER SIKELA

High Court of Solomon Islands
(Muria CJ.)

Hearing: 11 February 1994
Judgment: 16 February 1994

T. Kama for Applicant
A. Radclyffe for the Respondent

MURIA CJ: This is a reference to this court pursuant to section 40 of the Magistrates Courts Act to determine the question of the validity of a marriage which was said to have been contracted by the Applicant and the Respondent. This reference arose out of an application by the Respondent Mary Palmer Sikela in the Magistrates Court, Central for the custody of one Christine (11 years).

The matter first came before the Magistrate Court which ordered the custody of Christine to be granted to the Applicant on 3 April 1992. However on application by the Respondent, the Order of 3 April 1992 was set aside on 6 September 1993. The Respondent now seeks an order granting her custody over Christine.

Pending the determination by this court of the issue of validity of the marriage, the Respondent also seeks an interim custody order over Christine. That interim application had been refused by the Magistrate.

The brief circumstances of the parties herein are that in or about 1980, the Applicant and Respondent began living together. A bride price of $500.00 was requested, although the complainant stated that it was not the Respondent's parents who requested it but that it was the husband of the Respondent's elder sister, of which $60.00 was paid. There were two children to their association. The third child was adopted.

The parties separated in 1989 and have now formed their own associations with their new respective partners. The complainant had entered into a legal marriage with Catherine in June 1991 while the Respondent had lived with one John Bodkin since late 1990.

The argument for the Respondent is that she and the complainant had not been validly married in custom and therefore the Complainant has no right to the children. Thus the question of the validity of the marriage (if there was a marriage) is central in this case.

Mr. Radclyffe who appears for the Respondent poses two questions and seeks the court to answer them. The questions are: Can a custom marriage be entered into between an indigenous and a non-indigenous Solomon Islanders? Secondly, was there such a custom marriage between the parties here?

The first question, obviously, is meant to cover people like the Complainant who is a Solomon Islander, although not indigenous. It begs the question as to whether there is any difference between a custom marriage contracted between two Solomon Islanders one of whom is indigenous and the other, a non-indigenous and a custom marriage entered into between two Solomon Islanders both of whom are indigenous. Implied also in the question is the suggestion that only indigenous Solomon Islanders can contract a custom marriage. I should observe that the reality of Solomon Islands changing circumstances today would make such a suggestion difficult to maintain and in some cases impracticable.

It should be noted that there are two situations in which differentiation are made between an "indigenous Solomon Islander" and a person who becomes a Solomon Islander through the acquisition of Solomon Islands citizenship. These two situations are very clear and they are in relation to automatic citizenship and the right to acquire perpetual interest in land. See ss. 20(1), 26, 110 & 113(2) of the Constitution and s.2 of LTA. But when it comes to the question of choice of marriage, whether in church, civil or custom, such a distinction becomes meaningless. In my view the law quite rightly does not deem it necessary to intrude into one's choice of a voluntary union in marriage. The bottom line argument must be that marriage is essentially a voluntary union for life of one man and one woman to the exclusion of all others. That union can be entered into between an indigenous and a non-indigenous Solomon Islanders or between two indigenous Solomon Islanders.

Mr Kama's argument on the question of "Islanders" under the Islanders Marriage Act bears very little relevance to the issues before the court at the present since the case for the Respondent turns on the question of whether a custom marriage can be entered into between "non-indigenous" and "indigenous" Solomon Islanders.

The answer to the first question posed by Mr. Radclyffe must be: Yes, a custom marriage can be entered into between an indigenous and a non-indigenous Solomon Islanders.

The second question really must turn on the facts of custom as disclosed in the evidence before the court, establishing that there was in fact a marriage in accordance with the custom of the Reef Islands.

It is clear from the evidence of Moffat Bonuga and Nick Vaea who are both respected leaders from Reef Islands that bride price forms part of the process of entering into a custom marriage. Both witnesses stated that part payment of the bride price is accepted in custom. In this case I accept there was bride price payable and that $60.00 had been paid and accepted by the Respondent's people as part payment of the pride price.

There was also consent from the Respondent's parents and acceptance by the community that the Complainant and Respondent were properly married in accordance with the existing customary practice of the people of Reef Islands.

Moffat Bonuga gave evidence also that he himself was married in custom in 1963. In relation to the parties in this case, he said:

"As a Reef Islander, Mary and Ross were married in custom. $60.00 can be regarded as bride price and can confirm custom marriage"

Although the Respondent complained that her marriage to the Complainant was not in accordance with custom, I have to say that the evidence satisfies me that there was in fact a marriage between herself and the Complainant. That marriage had been entered into between them in accordance with the accepted custom of the people of Reef Islands.

I agree with Mr Radclyffe when he said that nowadays it is common for boys and girls to live together and people may say they are married. But the evidence in this case is more than sufficient to show that the Complainant and Respondent were united together in a marriage entered into in accordance with the accepted custom of Reef Islands. It was not a "marriage in the bush" as suggested by Mr Radclyffe.

Custom is part of the law of Solomon Islands and must be applied where it is applicable. However as Daly CJ said in Sukutaona -v- Houanihou (1982) SILR 12 at p.13:

"......it must be done on a proper basis of evidence adduced to show the custom and its applicability to the circumstances. This evidence should be given by unbiased persons knowledgeable in custom law...."

In this case Moffat Bonuga and Nick Vae gave evidence of custom of Reef Islands and its application in relation to custom marriage. There was no evidence that they or any of them was biased toward any of the parties.

Moffat Bonuga is a leader, not only in Reef Islands but a leader both at Provincial and national level. He is well respected. Nick Vaea is also a leader from reef Islands. In addition he is presently a member of the Honiara Town Council. He, too, is well respected.

I have no reason to doubt their evidence of the custom of Reef Islands where the parties in this case were married. I accept their evidence that the marriage between the Complainant and the Respondent was in accordance with the custom of Reef Islands.

The court will therefore answer the second question posed as: yes, there was a custom marriage entered into between the Complainant and Respondent in this case.

Having now determined that the parties herein were validly married in accordance with custom, I agree with Mr Kama that the question of custody must be sent back to the Magistrate Court to be be dealt with. The matter therefore is sent back to the Magistrate Court to deal with the question of custody.

No order for costs.

(G.J.B. Muria)
CHIEF JUSTICE