Zheng Hui Zhang v Col-Long Dones [2019] SBHC 86; HCSI-CC 46 of 2019 (5 December 2019)

HIGH COURT OF SOLOMON ISLANDS

Case name:	Zhen Hui Zhang v Col-Long Dones
Citation:
Date of decision:	5 December 2019
Parties:	Zheng Hui Zhang v Ann Madeline Col-Long Dones
Date of hearing:	7 November 2019(Written Submission only)
Court file number(s):	46 of 2019
Jurisdiction:	Civil
Place of delivery:
Judge(s):	Keniapisia PJ
On appeal from:
Order:	Accordingly, Court pronounce a decree of divorce and hereby declare that the marriage shall be dissolved upon the expiration of 3 months, and the issuance of Notice in Form D-as provided by section 11 of the Islander Divorce Act [cap 170]
Representation:	Mr. A Ngaingeri for the Petitioner No Appearance for the Respondent
Catchwords:
Words and phrases:
Legislation cited:	Islander Divorce Act, 11 [cap 170], Matrimonial Causes Act 1950 (UK)
Cases cited:	Emmett v Emmett [2009] SBHC 29

IN THE HIGH COURT OF SOLOMON ISLANDS
CIVIL JURISDICTION

Civil Case No. 46 of 2019

ZHENG HUI ZHANG
Petitioner

V

ANN MADLEINE COL-LONG DONES
Respondent

Date of Hearing: 7 November 2019 (Written Submissions only)
Date of Decree: 5 December 2019

Mr. A Ngaingeri for the Petitioner
No Appearance for the Respondent

DECREE OF DIVORCE

1. Petitioner filed for dissolution of parties marriage on 31/01/2019. I had mentioned and adjourned the matter, at least on 3 previous occasions. This is to allow for service on the Respondent. And for the Petitioner to try and gauge Respondent’s attitude towards dissolution of parties marriage. Orders to those effect were perfected on 27/03/2019 and 10/04/2019. At motions on 1/10/2019, I issued orders for Respondent to attend the main hearing and that the Petitioner must serve the “Notice of hearing” for the main hearing on Respondent. Petitioner filed proof of service that this has been done on 16/10/2019. And so, I heard Counsel Ngaingeri on 25/10/2019.
2. I adjourned hearing on 25/10/2019 and called on Counsel to file written submission on which law, I should hear this petition under – Matrimonial Causes Act 1950 (UK) or Islanders Divorce Act (Cap170) as Amended. And whether the former Act, can apply in Solomon Islands, in terms of the cut-off date^[1] for United Kingdom Acts of Parliament of general application, in Solomon Islands. Grateful to Counsel for the good research made and written submissions filed on 7/11/2019. Court was convinced on case materials cited, that this Court can deal with this application under both Acts/Statutes, notwithstanding that parties are not citizens of Solomon Islands, for purposes of the later Act/Statute (Emmett Case). In other words, both Statutes can equally apply to resolve the petition before this Court. It is a commonly held view, that the later Statute, does not apply where both parties are not citizens of Solomon Islands. But Emmett 2009 case^[2] relying on a number of earlier cases, dating back to Independence, in 1978, made it plain clear, that this is not so. For Emmett 2009 relevantly states:-
   • “The authority clearly indicates that there is consistent line of authority going back to Independence in 1978 and up to the present day, that notwithstanding persons may be citizens of other countries, they acquire the status of “Islander”, if they are shown to be domicile in Solomon Islands”
3. I am content to use both Statutes in my consideration of this petition application. Parties are citizens of other countries (China and Philippines). But are both domicile in Solomon Islands. Petitioner seek dissolution of parties’ marriage on the ground of desertion. Materials showed that parties have lived apart since 2016, for the following reasons: cultural differences, language barriers, religious barriers, parents’ dislike of parties’ marriage and diminishing bonding, sexual desires and feelings for each other. Petitioner is from China. Respondent is from Philippines. Petitioner contend, that Respondent had deserted parties marriage, without cause for a period of at least 3 years, since early January 2016. This case was filed late January 2019.
4. Court is satisfied the case for the Petitioner has been proved. Desertion has been established. Desertion, without cause, for 3 years is a ground for divorce^[3].
5. Accordingly, Court pronounces a decree of divorce and hereby declare that the marriage shall be dissolved upon the expiration of 3 months, and the issuance of Notice in Form D - as provided by Section 11 of the Islander Divorce Act (Cap 170).
6. Other reliefs sought are also granted as follows:
   • 6.1 Respondent to have custody of the parties’ issue (child), with rights of access to the Petitioner.
   • 6.2 Respondent and Petitioner to both maintain the child until the child reaches the age of 18 years.
   • 6.3 No order on cost.

THE COURT
JOHN A KENIAPISIA
PUISNE JUDGE

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^[1] Cut-off date for United Kingdom (UK) Acts of Parliament of general application in Solomon Islands is 1^st January 1961. All UK Acts of Parliament of general application before this date, will form part of the law of Solomon Island, with necessary adaptations – Schedule 3 (1) of the Constitution.
^[2] Emmett v Emmett [2009] SBHC 29; HCSI-CC 46 of 2008 (13^th July 2009).
^[3] Section 5 (1) (b) of Islanders Divorce Act (Cap 170) as amended and Section 1 (1) (b) of the Matrimonial Causes Act 1950 (UK).