Kevisi v Mergozzi [2008] SBHC 13; HCSI-CC 391 of 2007 (18 March 2008)

HIGH COURT OF SOLOMON ISLANDS
Matrimonial Jurisdiction

Civil Case No. 391 of 2007

IN THE MATTER OF
the petition of Rita Linda Vindo Kevisi for
dissolution of marriage

IN THE MATTER OF
an application for declaration of nullity

BETWEEN:

RITA KEVISI
Petitioner

AND:

HANS MERGOZZI
Respondent

Date of Hearing: 29 February 2008
Date of Judgment: 18 March 2008

Mr. Averre for the Petitioner
Mr. Lavery for the Respondent

DECISION ON APPLICATION TO HAVE MARRIAGE DECLARED A NULLITY

1 In response to a petition for divorce on the grounds of his alleged adultery, Mr. Mergozzi applies to have the marriage declared a nullity and the petition struck out.

2 One of the grounds he advances is that both he and the petitioner Ms. Kevisi are ‘islanders’ within the meaning of the Islanders’ Marriage Act, that the formalities required of marriages under that Act were not complied with in a number of key respects, and that therefore it was not a valid marriage.

3 It is common ground that the parties went through a form of marriage on 22 January 2005 on the jetty of the Sanbis Resort on Mbabanga Island in the Western Province. The presiding minister of religion was Jonnie L. Kuper of the Church of Melanesia. There is no Church of Melanesia building on that island, and the whole ceremony was conducted on the jetty.

4 There were two witnesses to the marriage, the ceremony was conducted according to the rites of the Church of Melanesia, and included an exchange of vows along with declarations that there were no impediments to the marriage and no objections to the marriage.

5 It would appear, and I so find, that no notice of the intended marriage was put up anywhere on Mbabanga Island, though a marriage notice may have been posted at the Gizo Magistrate’s Court. I proceed on the basis that it was.

6 I accept that both parties did not knowingly or wilfully disregard any legal requirements as to the marriage, and that the ceremony was undertaken seriously and with honest intent by the parties. Many guests attended from both Solomon Islands and overseas.

7 After the marriage ceremony the parties lived for all intents and purposes as husband and wife, separating in September 2006.

8 It is accepted that Ms. Kevisi is and always has been a Solomon Islander. The crucial issue in this case is whether Mr. Mergozzi, who was born in Switzerland and is a naturalised Australian citizen, is an ‘islander’ for the purposes of the Islanders’ Marriage Act.

9 The term ‘islander’ is not defined in that Act, or in the Islanders’ Divorce Act. Counsel have been unable to refer me to any current legislation where that term is defined.

10. Assistance can be obtained from the Solomon Islands High Court case of Luaseuta v. Luaseuta CC 34/78 (unreported). In that case the female petitioner sought a dissolution of her marriage on the grounds that her husband had committed adultery and treated her cruelly. She brought the petition under the Islanders’ Divorce Act. As to the meaning of the term ‘islander’, Chief Justice D. R. Davis expressed this view:

"The term ‘Islander’ was until recently defined in the Interpretation & General Clauses Act, Cap. 1 in the revised edition of the Laws 1969. Were this definition still in existence the parties in the present proceedings would fall within it. The definition of ‘Islander’, however, was deleted by the Constitution (Adaptation & Modification of Existing Laws) Order 1978 (LN 46(a)/78) and no new definition has been introduced to replace it. In the absence of any definition it appears to me that an Islander, for the purposes of the Islanders Divorce Act, must mean anyone who is domiciled in Solomon Islands."

11 Under the Interpretation and General Clauses Ordinance, which commenced in 1967, the term ‘native’ was defined. Broadly, if both parents of a person were members of a group, tribe or line indigenous to Solomon Islands, they were a ‘native’. If only one parent was a member of a race, group, tribe or line indigenous to any island in the Pacific Ocean, and the person lived in Solomon Islands in the customary mode of the race, group, tribe or line to which that parent belonged, then that person was also considered a ‘native’.

12 In 1974 there was an amendment deleting the term ‘native’ and replacing it with ‘islander’. The definition, though, stayed essentially the same, though the reference to the Pacific Ocean was narrowed to
‘Melanesia, Micronesia or Polynesia’.

13 Then in 1978, the definition of ‘islander’ was deleted altogether.

14 Accordingly there was a very specific definition of the terms ‘native’ and then ‘islander’ prior to 1978, directly linked to the lineage of the person. Then, by legislation in 1978, the definition was deleted altogether.

15 I do not consider it open to this Court simply to import the previous definition of ‘islander’ and find that the criteria which used to apply continue to do so. The deletion of the term ‘islander’ by legislation suggests to the contrary, namely that the old definition based on lineage is no longer intended to have any application.

16 In light of this, for the term to have any sensible meaning it must be linked to the domicil of the person.

17 The term ‘domicil’ is defined in Rayden on Divorce, 9th Edition, Butterworths 1964, p.33, para. 8 as follows:

"Domicil is the legal and normally also the factual relationship between a person and a territorial area subject to one system of law which arises either from his residence there with the intention of making it his permanent home or from its being, or having been, the domicil of some person on whom he is for this purpose legally dependent. Every person has a domicil at all times, and no one has more than one domicil at once."

18 And in para. 11 Rayden on Divorce states:

"Any person ..... may, at any time, acquire a new domicil by residing in another country with the intention of continuing to reside there for an indefinite time coupled with the absence of genuine intention of returning to reside permanently in the country in which he was hitherto domiciled: for this purpose residence only means personal presence in a locality, and, if accompanied by the required state of mind, neither its character nor its duration is material ... a settled purpose is necessary of making the principal or sole permanent home in the country of residence."

19 I consider it logical that a person who resides and intends to continue to reside in Solomon Islands on an indefinite basis, and who has no intention of returning to reside permanently in the country where he was previously domiciled, be considered an ‘islander’ for the purposes of the Islanders’ Divorce Act. This is, of course, the view which was expressed by Chief Justice Davis in Luaseuta’s case, and I agree with it. Support for the view is also to be found in Form A of the First Schedule to the Islanders’ Divorce Act. This requires a statement in the petition for divorce that "The petitioner and the respondent are both domiciled in Solomon Islands".

20 I consider this reasoning to be equally applicable to the Islanders’ Marriage Act. It would be illogical for there to be a different meaning for ‘islander’ under the two Acts, which are intended to be compatible. Therefore, I consider an ‘islander’ for the purposes of the Islanders’ Marriage Act to be anyone who is domiciled in Solomon Islands. I note that this was the view taken by Commissioner Freeman in Mahlon v. Mahlon; Reid v. Reid [1984] SBHC 1.

21 I now consider the question of whether Mr. Mergozzi was domiciled in Solomon Islands as at the date of the ceremony on the ‘Sanbis Resort’ jetty, namely 22 January 2005.

22 In doing so, I note Rayden on Divorce states, para. 12:

"The burden of proving that a domicil has been chosen in substitution for the domicil of origin is on him who asserts that the domicil of origin has been lost: the intention must be

proved with perfect clearness. It is not necessary that a change of nationality should be intended, or any steps be taken to secure naturalisation; nor is it necessary that a person should consciously intend to change his civil status. One should view the person’s conduct as a whole. If residence and intention of permanency are both present, a new domicil is acquired ...".

23 In this case, Mr. Mergozzi swore an affidavit dated 4 December 2007 in which he stated that he was a native and citizen of Switzerland, that he was a naturalised Australian citizen, and that he was "not a native or even a naturalised citizen of Solomon Islands."

24 This affidavit was sworn in these terms to enhance an alternative submission by Mr. Mergozzi’s counsel that the marriage was a nullity because though it purported to have been celebrated under the Islanders’ Marriages Act, Mr. Mergozzi was not in fact an islander.

25 At the hearing of the case, Mr. Mergozzi gave evidence that notwithstanding the fact that his earlier affidavit was tailored to distancing himself from being considered to be a Solomon Islander, nevertheless he was domiciled in Solomon Islands.

26 As I have stated, the test for whether a person is an ‘islander’ under the Islanders’ Marriage Act is whether he or she is domiciled in Solomon Islands. Thus I now consider whether Mr. Mergozzi has in his evidence discharged the burden of proving that his domicil had changed to Solomon Islands as at 22 January 2005.

27 His evidence was that prior to coming to Solomon Islands in 2002, he was living in Australia. There he owned a home, and had married an Australian citizen in 1993, separated from her in 1995, and was legally divorced in October 2004. Prior to coming to Solomon Islands he sold his house in Australia.

28 His evidence was that he had visited Solomon Islands on a yacht in about July 2002, returned around November 2002, and has lived and remained here ever since (except for several times returning to Australia in 2003 and 2004 to purchase building materials for his business interests in Solomon Islands).

29 Since November 2002 he has established 3 businesses in Solomon Islands, namely Solomon Connect Limited (a small boat transport business), Solomon Watersport Limited (providing diving and fishing charters to customers), and Sanbis Resort. His evidence was that the first two of those businesses were companies registered in Solomon Islands, and that the name ‘Sanbis’ was also registered.

30 His evidence was that he established Sanbis Resort on Mbabanga Island in Western Province, and that this tourist resort began operating in June 2005.

31 He stated that the establishment of the businesses required investment approval from the authorities in Solomon Islands, and that he invested SBD 7.5 to 8 million in them. As to residency and work permits, he stated that he applies for their renewal every two years.

32 Mr. Mergozzi’s evidence was that he has lived in Solomon Islands for now nearly 6 years, relies solely on the income his businesses in Solomon Islands generate, and has no intention of living anywhere else.

33 I am aware of the need to be cautious in accepting a person’s assertions in evidence as to their intentions, past or present, where a person’s domicil is in question. In particular, such assertions cannot prevail against a course of conduct inconsistent with them (Rayden on Divorce, para. 14).

34 Considering Mr. Mergozzi’s evidence as a whole, I am satisfied that his
course of conduct in Solomon Islands has been such that as at January 2005 it was his intention to remain here permanently. At that time the Sanbis Resort in which he had invested heavily was about to open, he had no income from or home in any other country, and he believed he was entering into a valid marriage with a Solomon Islander who lived here. Consistent with that, he and Ms Kevisi lived together in Solomon Islands in effect as husband and wife until September 2006 when they separated, and he has remained here since.

35 I therefore conclude that as at 22 January 2005, the date of the ceremony on the wharf, both Ms Kevisi and Mr. Mergozzi were domiciled in Solomon Islands, and so were ‘islanders’ within the meaning of the Islanders’ Marriage Act.

36 Before turning to the requirements under the Islanders’ Marriage Act, I mention that in her affidavit dated 4 January 2008 Ms Kevisi asserts, para. 3:

"In fact the respondent and I went through a custom marriage as well as the church wedding."

No further details were provided.

37 It was not argued before me by Ms Kevisi’s counsel that the parties had a valid marriage by virtue of this assertion of a custom marriage.

38 I therefore approach this matter on the basis that at issue is the marriage ceremony celebrated before a minister of religion on the jetty, and to which the Islanders’ Marriage Act applied.

39 Where a marriage is conducted by a minister of religion, the Act
requires among other things written advance notice of the marriage to
be posted on a notice board in the church at least 3 weeks before the date of the marriage. Such notice is to be signed by the minister "in charge of the church in which such marriage is to be celebrated" (section 5).

40 There is also a requirement that a marriage by a minister of religion shall be celebrated in the church in which notice of the intended
marriage was given (section 8).

41 No discretion is conferred in respect of these requirements. The Act requires that notice of the marriage "shall be posted" in a church, (s.5), and that the marriage by the minister "shall be celebrated in the church in which notice of the intended marriage was given" (s.8).

42 If these requirements are not met, then my view is that such a marriage celebration will be invalid. An exception where one or more of the parties genuinely but mistakenly believes the minister to be duly registered is provided in s.8 of the Births, Marriages and Deaths Registration Act. There is support for my view in the case of Siloko v. Haka [1991] SBHC 33. In that case a marriage was declared a nullity where the parties had been married at their home in White River, Honiara by a pastor and a marriage certificate had issued. The Court found that there was nothing to defeat the presumption that due notice was given, but the evidence was the celebration of marriage took place other than in the church in which notice was given. Ward CJ stated:

"The testimony of the pastor is clear evidence of celebration of an otherwise valid service in a place other than the church in which notice was given. I must accept that was a failure to celebrate the marriage in due form".

43 In the present case, there was no posting of a notice in a church, and no marriage celebration in a church. There was, then, a failure to celebrate the marriage in due form.

44 Pursuant to s.12 of the Islanders’ Divorce Act, I therefore find that the parties’ marriage on 22 January 2005 was void and I pronounce a decree of nullity in respect of it.

45 I therefore strike out Ms Kevisi’s petition for divorce.

46 There will be no order as to costs.

BY THE COURT

Hon. Justice IDR Cameron
Puisne Judge