Salumata v Kelly [1999] SBHC 129; HC-CC 344 of 1999 (5 November 1999)

HIGH COURT OF SOLOMON ISLANDS

Civil Case No. 344 of 1999

STELLA SALUMATA

V

JOHN KELLY

High Court of Solomon Islands
(KABUI, J)

Hearing: 3^rd November 1999 at Gizo
Judgment: 5^th November 1999 at Gizo

S. Watt for the Petitioner
Respondent not present

JUDGMENT

(F.O. Kabui, J): By a Petition filed on 19^th October, 1999, Stella Salumata (the Petitioner) prays that this Court will be pleased to decree that the marriage celebrated between herself and John Kelly (the Respondent) be declared null and void. The ground upon which this Petition is based is that the said marriage between the Petitioner and the Respondent was not celebrated in due form as prescribed by law under sections 4, 5, 8 and 9 of the Islanders Marriage Act (Cap. 171) (the Act). On the date of trial, the Respondent was not present in Court. However, an affidavit sworn by Claudius Horiwapu filed on 28^th October, 1999 proved that the Respondent was served with a copy of the Petition at Mbua Valley in Honiara on 26^th October, 1999. This being the case and at the request of Mr. Watt, Counsel for the Petitioner, I allowed the trial in this matter to proceed in the absence of the Respondent.

The Facts

The Petitioner and the Respondent were married at Malakera Village near Gizo on 17^th October, 1980. The marriage was celebrated by SDA Pastor Isaac Moveni of Gizo at the house of the Petitioner’s parents at Malakera Village. A marriage certificate (Form D) was signed by both the Petitioner and the Respondent in the presence of Alick Ngaina and Ruth Qila. Pastor Isaac Moveni who celebrated the marriage signed as the Minister of Religion. The Petitioner and the Respondent had lived together until they separated in 1996. There are children of this marriage. There are 4 children. The Petitioner no longer desires cohabitation with the Respondent.

The Law

The law in Solomon Islands that governs the celebration of marriage is the Islanders’ Marriage Act . Section 4 of the Act makes it very clear that any marriage to be valid under the law must be celebrated before a Minister of religion or before a District Registrar except any marriage under the custom of Islanders or according to the provisions of the Pacific Islands Civil Marriages Order in Council 1907. Section 5 of the Act sets out the procedure or the steps to be followed before the celebration of the marriage takes place. In the case of a marriage to be celebrated by a minister of religion, there must be a written notice of the intended marriage and the date of the intended marriage in a language spoken by the parties. This written notice must be signed by the Minister of religion in charge of the church in which the marriage is to be celebrated. The notice must be posted clearly on a notice board set aside for that purpose in that church. It must also be posted at least three weeks before the date of the marriage. It must remain on the notice board until the marriage is celebrated or until the period of three months lapses without the marriage taking place. Section 6 of the Act also requires each of the parties to the marriage to sign a declaration in Form C declaring that each of them is free of the matters set out in Form C to marry each other. Section 7 of the Act requires that there must be at least two witnesses present at the celebration of the marriage before a Minister of religion. Section 8 of the Act stipulates that any marriage celebrated by a Minister of religion in the church in which the notice of the intended marriage was given must be celebrated between the hours of 6 O’clock in the forenoon and 6.30 O’clock in the afternoon.

The leading case in this area of the law is Siloko v Haka (Civil Case No. 53 of 1991) (unreported). The facts of that case are the same as in this case.

The relevant provisions of the Islanders’ Marriage Act and the relevant case law were discussed and applied by Ward, CJ. in that case. Ward, CJ. ruled that the marriage celebrated without due form under the relevant provisions of the Islanders’ Marriage Act was a nullity. At page 3 of His Lordship’s Judgment Ward, CJ. said –

“If the marriage was not celebrated in due form, the Court must pronounce a decree of nullity. A failure to comply with section 5 or 8 of the Act is a failure to follow the due form.”

This quote represents the ratio descedendi of that judgment.

The Evidence

The evidence in this case is undisputed. The Petitioner was a member of SDA Church on the day she married the Respondent at Malakera Village. Her parents were also members of the SDA Church at that time. Unfortunately, the Petitioner became pregnant outside of marriage. The father of her child was the Respondent. This being the case, she was not able to marry in the SDA Church as is the usual case. This was the advice given to her and her parents by the SDA Pastor Isaac Moveni of Gizo at that time. Pastor Isaace Moveni then suggested that the Petitioner and the Respondent marry at the house of the parents of the Petitioner at Malakera Village. This was obviously the way out of being in breach of SDA Church rules on the celebration of SDA marriages in SDA Churches. The Petitioner and the Respondent then agreed to marry in the house of the Petitioner’s parents in the presence of their family members. The Minister of religion who performed the marriage ceremony was none other than Pastor Isaac Moveni of Gizo. At the end of the ceremony, the Petitioner and the Respondent signed the Marriage Certificate (Form D) in the presence of two witnesses who signed as witnesses to that marriage.

The Validity of Marriage

The Courts are always loathe to dissolve valid marriages. The reason is obvious. Families are the basic social units in any society. They have very strong biblical backing and the law sanctions their existence and preservation in every society. So, there is a very strong presumption that a marriage is presumed always to be valid. However, this presumption may be negated by very strong evidence to the contrary. Such evidence however must be strong, distinct, satisfactory and conclusive. In other words, the evidence to the contrary must be decisive (See page 3 of Ward, C.J.’s Judgment in Siloko v Haka referred to above). In this case, the Certificate of marriage (Form D) signed by the Petitioner and the Respondent is evidence of a valid marriage. There must be decisive evidence to deny its validity. The burden of proof of its invalidity is upon the Petitioner who disputes the validity of her marriage to the Respondent. In addition to the Petitioner’s own evidence, her father, Samuel Nigi, her mother, Lina Tudu and her sister Grant Qila all denied notice being published of the marriage. They all said they could not recall any notice being published of the marriage. They all said they could not recall any notice being spoken of by Pastor Isaac Moveni or being put up by Pastor Isaac Moveni in any SDA Church at Gizo or even at the house where the marriage ceremony took place. Pastor Isaac Moveni was not able to give evidence because he was sick and was unable to come to Gizo to give evidence. However, he wrote a letter dated 31^st October, 1999 addressed to the Magistrate’s Court Clerk at Gizo explaining his absence.

He is now retired and lives on Vella La Vella. I believe that if he had given evidence in this Court he would have said the same things the other witnesses had told this Court. He is a man of God and would not have lied to this Court. Nevertheless, all the witnesses had said that Pastor Moveni was the authority behind the marriage being celebrated at the house of the Petitioner’s parents at Malakera and not in any SDA Church. The reason being that the Petitioner was already heavy with a child out of marriage prior to the intention of the parties to marry each other. To fulfill their wish to marry, Pastor Moveni decided to marry them at a ceremony at a private house at Malakera village. There was no other reason for doing so. I believe the witnesses when they said that no notice was put up at any SDA Church in Gizo or at any other place.

In this case therefore there is decisive evidence to satisfy me that the requirements of sections 5 (a) (b) and (c) and 8 of the Islanders Marriage Act were not complied with by Pastor Isaac Moveni and the parties to the marriage. I do not believe also that Form C under section 6 of the Act was complied with in this case. Three things were wrong with the validity of the marriage. No notice of the marriage was ever published in a Church under the requirements of section 5 (a) (b) and (c) of the Act, Form C under section 6 of the Act was never complied with and the marriage was not celebrated in a Church as required by section 8 of the Act. To use the words of Ward C. J. in Siloko v Haka above, this marriage was not “celebrated in due form”.

The Consequence

Section 12(e) of the Islanders’ Divorce Act (Cap. 170) (the Act) states –

“12. A marriage is void and the Court shall pronounce a decree of nullity in respect thereof if it is proved –

(a) .......................................

(b) .......................................
(c) .......................................
(d) ......................................

(e) that subject to the provisions of section 8 of the Births, Marriages and Deaths Registration Act, the marriage was not celebrated in due form”

This is the consequence of a marriage not being celebrated in due form. Section 8 of the Births, Marriages and Deaths Act (Cap. 169) is not an issue in this case and is therefore irrelevant here. This term “due form” is not defined in the Islanders’ Divorce Act nor in the Islanders Marriage Act. I think what this term means is that a marriage must be celebrated according to the procedure or steps prescribed by the relevant provisions of the Islanders’ Marriage Act. Any no-compliance with the prescribed procedure would inevitably result in a marriage being declared a nullity by the Court. In this case, I am satisfied that there is decisive evidence before me to negate the presumption of the validity of the marriage. Non-compliance with the mandatory procedure for the celebration of a valid marriage as prescribed by law is in itself a lack of due form under the law. This is unfortunately the case here. I must therefore pronounce a decree of nullity in respect of this marriage.

The effect of this decree of nullity is that there was and never was a marriage between the Petitioner and the Respondent on 17^th October 1980. I hope that the ceremony conducted by Pastor Isaac Moveni had been preceded by custom exchange of gifts to be recognised also as a custom marriage valid at law. Custom marriage like a Christian marriage can also be terminated by one of the parties to it. The children of a custom marriage cannot however be regarded as being illegitimate simply because it has not been converted into a Christian under provisions of the Marriage Act.

F. O. Kabui
Judge