Chan v Chan [2001] SBHC 51; HC-CC 094 of 2001 (30 July 2001)

p class="MsoNormal"rmal" align="center" style="text-align: center; margin-top: 1; margin-bottom: 1"> HIGH COURT OF SOLOMON ISLANDS

Civil Case No. 094 of 2001

SILAS CHAN

(Alias Chan Chee Yan)

v

PEGGY

(Alia Koo Yee Ing)

Hourt of Solomon Islands

Before: F. O. Kabui, J

Civil Case No: 094 of 2001

Hearing 27^th July 2001

Judgment: 30^th July 2001

C. Ashley for the Petitioner

A. Nori for the Respondent

JUDGMENT

: This is a Petitionition for dissolution of marriage filed by the Petitioner on 22^nd May 2001. The Petitioner and the Respondent were married in Gizo on 16^th June 1980. The marriage was celebrated in the District Office in Gizo under the Pacific Islands Marriage Order in Council 1907. It was a civil marriage in the sense that it was not celebrated by a Minister of religion. It is a valid marriage. The parties lived in Gizo until sometime in 1992, when they moved to Honiara to do business. There are three children of the marriage. They are Kamus Chan born on 13^th March 1981, Sandra Chan born on 27^th October 1984 and Terrence Chan born on 27^th October 1986. The Co-respondent in 1992 was the accountant for the family business. As such, he became well-known in the family. In fact, the petitioner treated the Co-respondent as his brother. He did not realize that the Co-respondent was interested in his wife, the Respondent. The Petitioner found out the worst in 1993. He caught his wife and the Co-respondent in the Petitioner’s shop in China town. He confronted the Respondent and she admitted to him having committed adultery with the Co-respondent. In fact, the Respondent and Co-respondent had been having affairs for about a year already before they were discovered by the Petitioner. The Petitioner told the Respondent to go to Australia. The Petitioner kept silence over his wife’s unfaithfulness for two years and than told the members of his family about it. In about 1994 or there about, he began living with another woman and has not since lived with the respondent. He has two children of that union. A formal separation agreement was executed by the parties on 3^rd August 1999.

Adultery by the Respondent

lass=lass="MsoNormal" style="margin-top: 1; margin-bottom: 1"> There is no ece of condonation nor connivance or collusion on the part of the Petitioner. In fact, the Respondent admitted adultery by consenting to the Petitioner to proceed without opposition on her part. I find that the Respondent did commit adultery with the Co-respondent as alleged in the Petition.

Adultery by the Petitioner

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Ady committed by the Petitioner should be admitted by way of a discretionary statement.ment. A discretionary statement is always in a written form supported by oral evidence in Court. In this case however, paragraph 4 of the Petition bears out admission of his adultery supported by his sworn evidence. Whilst this paragraph is not a discretionary statement in the strict sense, I would take it as one on the basis that this Petition is unopposed. This however must not be taken as sanctioning deviation from the proper practice of filing discretionary statements in divorce cases. In exercising the discretion of whether to grant a decree nisi or not, the judgment by Sir Jocelyn Simon, P. in Bull v Bull (Queen’s Proctor showing cause) [1965] 1 A.E.R. 1057 is the relevant authority in this regard. At pages 1062 - 1064 of his judgment, Sir Jocelyn Simon said-

class="Mso="MsoNormal" style="margin-left: 28.8pt; margin-top: 1; margin-bottom: 1"> “...I have had a helpful review by counsel for both parties of the factors which are to borne in mind by the court in exercising the discretion vested in it by the legislature. I think that these factors fall into three categories. First, factors relating to the interests of the persons directly or indirectly affected by the suit. Secondly, all other relevant factors relating to the married life of the parties. In both of those categories the interests of the community may be affected. The interests of the community are also affected in the administration of justice: this gives rise to a number of other factors which fall for consideration and weighing; and these constitute the third category.

I consider initially the factors relato the interests of the pers persons directly or indirectly affected by the suit:

(i) ;&nbsether, if t if the e marriage is not dist dissolved, there is a reasonable prospect of reconciliation between the petitioner and the respondent.

(iii) The inteof th part part party with whom the petitioner has been guilty of adultery, with special regard to their re-marriage.

(iv) The interesthe petitpetitionitioner, and in particular the interest that the petitioner should be able to remarry and live respectably.

Those four considerations are authoritatively established by the speech of VISCOUNT SUNT SIMONS, L.C., in Blunt v. Blunt,[1] with which the other learned law lords agreed.

(v) &bsp; ;&nbpp; The interest of f any children born of the adulterous connexion between the petitioner and the person with whom he or she committed adultery.

class=lass="MsoNormal" style="text-indent: -36.0pt; margin-left: 72.0pt; margin-top: 1; margin-bottom: 1"> (vi) &nbsp interest of any any children born of any adulterous connexion formed by the respondent.

1"> <These two further siderations appear from m Rudman v. Rudman and Lee (Queen's Proctor sowing cause)[2]. Those then are the factors relating to the interests of the persons directly or indirectly affected by the suit.

Goldsmith v. Goldsmith[3] if not other authority, establishes that all other relevant factors relating to the married life of the parties are also for consideration in determining how the discretion should be exercised. So-

(vii) Was the petitioner or the respo the more responsible

 p;&nssp; &nbspfor the break-up of their marriage?

(viii) What was nature of the misconduct which necessitates the prayer for discretionary relief? Was it, for example, with more than one man or woman? Was it promiscuous? Were there mitigating or aggravating circumstances?

(ix) Was the pa seeking disg disc discretionary relief partly, and if so to what extent, responsible for the break-up of any other marriage?

span lang="EN-GB" style="font-size: 12.0pt">(x) Whs theraene l l conduct otherwise of the party, seeking discretionary relief, for example, his or her conduct towards the children?

(xi) On the successful intervention of the Queen of the Queen’s Proctor, would the court have been likely to have exercised discretion in favour of the party seeking the etionelief if the facts now known had been before it o it on then the original hearing?

I think that all the foregoing factors are summed up in what LORD SIMON stated[4] as a primary or over-riding consideration-namely, the interest of the community at large judged by maintaining a true balance between respect for the binding sanctity of marriage on the one hand and the social considerations which make it contrary to public policy to insist on the maintenance of a union which has utterly broken down on the other. That balance is, of course, not held by giving exclusive weight to the second limb. It is virtue of the first limb that the court is bound to weigh, among other factors, whether a party seeking discretionary relief was in any way responsible for the break-up of any other marriage.

I turn to the third category of factors, which may perhaps be summed up in the statement that it is in the public interest that matrimonial relief should be granted on the basis of complete candour ad truthfulness on the part of the party seeking relief: see the cases cited in Rudman v. Rudman and Lee (Queen’s Proctor showing cause;[5] Blunt v. Blunt;[6] White v.White (Queen’s Proctor showing cause);[7] Goldsmith v. Goldsmith;[8] Rowley v. Rowley and Austin and French (Cooper intervention);[9] Some of these factors relating to the administration of justice are particularly relevant on a successful intervention of the Queen’s Proctor. Then –

(xii) were the r reasoneasons for the original, or indeed any subsequent, non-disclosure of adultery by the party seeking discretionary relief? (see Cronin v. Cronin and Jon> [10].

class=lass="MsoNormal" style="text-indent: -36.0pt; margin-left: 72.0pt; margin-top: 1; margin-bottom: 1"> [11]

(xv) Is the court finalli satisfied that it has been told the whole truth by the party seeking discretionary relief, especially with regard to the course of adulte m it nary ty for discretionary relief?span><

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Or, on the other hand:

(xv) ;&nbssp; Is the the court ourt satisfied that adultery, or further adultery, has been committed as to which a denial on oath has been maintained ...?

p class="Mso="MsoNormal" style="margin-top: 1; margin-bottom: 1"> In this case, the petitioner was not at fault for the break-down of his marriage. Perhaps, the Respondent was not totally at fault also. I say this because, the Petitioner said in evidence, that he had regarded the Co-respondent as his brother obviously a relationship brought about by business convenience of all the parties. Human frailty had obviously set in and the wife committed adultery with the Co-respondent a number of times. This illicit relationship was subsequently discovered by chance and the wife admitted it then and in Court through her Counsel, Mr. Nori.

The Petitioner kept it a secret until 2 years later when he had to reveal it to the members of his family. The Petitioner said there had been attempts to reconcile but on his part he could not accept it because the Co-respondent is also a resident of Honiara. I can understand his feeling. He then decided to find another woman and did so about 1994 or there about. He now lives with that woman as man and wife. There are now 2 children of that union. The separation Agreement executed on 3^rd August 1999 seals the relationship between the parties in terms of settlement of property, custody and access etc, until divorce proceedings are instituted. There is clearly no chance of the parties going back to each other. The link that held them together had snapped and is clearly beyond repair. The case for the burial of the old marriage is clearly in favour of the Petitioner. There is no longer any point in keeping a marriage that is already dead for the sake of appeasing the community or the relatives. Let it be buried and be forgotten. I bury it accordingly and in so doing hereby pronounce that the marriage between the Petitioner and the Respondent be dissolved. Matters of ancillary relief have been settled out of Court by the Separation Agreement dated 3^rd August 1999. I do not wish to make any formal orders in respect of them.

F.Oui

Judge

Footnotes:

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[1] [1943] 2 A. E.R 76 at 78

[2] [1964] 2 A.E.R.102

[3] [1964] 3 A.E.R.321

[4] [1943] 2 E.R at 78; [1943] A.C. at 525

[5] [1964] 2 A.E.R at 106

[6] [1943] 2 A.E.R at 80

[7] [1952] P.395 at 339

[8] [1964] 3 A.E.R. 321

[9] [1964] 3 A.E.R 314

[10] [1964] 3 A.E.R. 766

[11] [1952] P. at 398