The respondent instructed soor, who advised the petitiotitioner's solicitor,
in a letter, that the respondent would not
defend the petition. The
respondent has returned to Australia, his country of nationality. The
petitioner now lives with
a boyfriend in Australia, but on a year's
residence permit, as parent of a child attending school in Australia. It is
not proper that solicitor for the respondent does not even file notice
acknowledging receipt of the petition and leaves it
to appear as if he
simply ignores the proceeding.
I
considered the qon as to whether the petitioner should not be regarded
as domiciled in Australia, having acquired
the husband's domicile upon
marriage. If that was the case then this court would not entertain the
petition because the
court would lack jurisdiction. I decided that although
in the law of Solomon Islands the petitioner was to be regarded as having
adopted the domicile of the husband, which was Australia, that should only
be acted upon when her future country has
accomplished the necessary
immigration requirement and granted Mrs. Gee resident permit, entitling her
to reside in Australia.
It is only then that the adopted domicile becomes a
reality. Domicile cannot exist without the right to reside in the country,
in my view, however much one may stretch legalism. At the time of filing
petition, Olivia had not obtained resident permit
based on her marriage
although she has obtained an annual one depending on her daughter remaining
a student in Australia.
In my view, Olivia retained her domicile in Solomon
Islands up until the time she filed the petition for divorce, this court
has
jurisdiction.
Accg to the testimonies of the two witnesses called, it is surs surprising
that Olivia and Arthur married. Before the
marriage, when they lived
together in the same house as boyfriend and girlfriend, Arthur regularly
telephoned the business
of Olivia and arranged to collect the girl employees
there, one at a time, for sexual intercourse. He did that with the full
knowledge of the second witness, Olian Eddie Minu, the sister of Olivia. He
discussed his escapades with Olian freely
and sometimes asked her to arrange
for taxi to transport the girls. It was a vexed topic though between Arthur
and Olivia,
they used to fight about it. Despite all that, the two married,
but Arthur continued with his sexual escapades, and the fights
continued. He
may have enjoyed sex with diverse girls, but the marriage was on the wane.
Finally Arthur left for Australia,
but before that, Olivia decided to get a
boyfriend. There is no evidence that Arthur left because of that, the
evidence
tends to show that he left because of the bad state of the marriage
which was the result of his adulteries.
From the account I have given of the nce, it is apparent that I at I
accepted the evidence of the one adultery of Arthur
which occurred during
the marriage, the adultery which is material in this case. The regular
fights, in my view, was
evidence that Olivia did not condone the adulteries
including the material one.
As me out in evidence that Olivia also committed adultery, I i, I informed
her counsel that a discretionary statement
about her own adultery was
required. That was offered during the trial. It should have been filed
before the hearing
of the case, but as the petitioner freely admitted it in
evidence when the respondent was not there to obtain it from her by
cross-examination, I decided to accept that she may file the statement. In
the end the whole case is a proper one for
me to exercise discretion in and
grant decree nisi for divorce, on the petition of Olivia, notwithstanding
her own adultery.
Decree nisi for divorce is to issue, to be made absolute
after 3 months, if no cause is shown why it should not be made absolute.
No child was born out of the marriag no question of property orty or costs
arose. No order is made about them.
Dated this 13th day of March 1998
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Sam Lungole-Awich
J JUDGE