Halapua v Tonga [2004] TOCA 5; CA 07 2004 (30 July 2004)

IN THE COURT OF APPEAL OF TONGA
DIVORCE JURISDICTION
NUKU’ALOFA REGISTRY

Appeal No. 7/04
Case No. FD 107/2

BETWEEN:

SILILA HALAPUA
Appellant

AND:

VILIAMI VA’INGA TONGA
Respondent

Coram: Burchett J
Tompkins J
Salmon J

Counsel: Laki Niu for appellant
Kelepi Piukala for respondent

Date of Hearing: 26 July 2004
Date of Judgment: 30 July 2004

JUDGMENT OF THE COURT

Introduction

[1] By a petition for divorce undated but apparently filed in the Court on or about 19 November 2002, the respondent sought an order that the marriage between him and the appellant be dissolved. The petition was on the ground that the parties had been separated for over two years and that “. . . there will be no further reconcile in their marriage. . .”

[2] By an answer dated 24 July 2003, the appellant, having been granted leave to file an answer out of time, sought an order that the respondent’s petition be dismissed and further consequential orders. In her answer, the appellant admitted that “. . .they were separated for more than 2 years . . .” The appellant denied that there will be no reconciliation and pleaded:

“The [Appellant] wishes to reconcile and wants to forgive the [Respondent’s] adultery and to renew their marital relations or co-habitation”

[3] After a defended hearing, the Chief Justice, by his judgment dated 14 April 2004, granted the respondent a decree nisi to be made absolute after 6 months. He adjourned to a later date the question of financial provisions for the appellant. He noted that there can be no decree absolute until those matters are resolved. On 14 June 2004, the appellant applied for leave to appeal out of time. The respondent not opposing, that application is granted.

The facts

[4] They are undisputed. The parties married on 24 May 1969. There are three children of the marriage, all of whom are now over 25 years of age.

[5] The respondent left the appellant in October 2000. He went to live with another woman with whom he still lives and by whom he has had a child. He said that he now seeks a divorce because he has started a new home and family.

[6] The Chief Justice found that the appellant has maintained contact with the respondent by visits and telephone calls. She had hoped by such contacts to restore their relationship. She said she would like to have him back home and that the children share that wish.

[7] The Chief Justice also found that the respondent has not maintained and has no intention to maintain or renew normal marital relations with the appellant and has maintained that position since he left.

[8] None of those factual findings are challenged on the appeal.

The issues on the appeal

[9] The appeal turns on the proper interpretation of section 3(1)(f) of the Divorce Act (Cap 29), which provides that a husband or wife may present a petition to the Supreme Court praying the Court to dissolve the marriage upon evidence:

"(f) that the respondent and the petitioner have been separated for a continuous period of 2 years or more immediately preceding the presentation of the petition without both of them maintaining or intending to maintain or renew normal marital relations or co-habitation with each other."

[10] The issues that arise on this appeal are whether, on a proper interpretation of paragraph (f):

• [a] the phrase “have been separated” should be interpreted to mean “have agreed to separate”
  
• [b] the condition should be interpreted to require both of the parties to fail to maintain or fail to intend to maintain or renew normal marital relations or co-habitation with each other.
  

Issue [a] - “have been separated”

[11] Mr Niu submitted that the phrase should be interpreted to mean a mutual agreement of both parties to separate. He referred to the Tongan version of the section using the word “mavai” meaning a parting from each other. He submitted that a desertion such as occurred in this case is a unilateral wish to live apart and is not a separation. In these circumstances, paragraph (c) of s 3(1) gives only the innocent deserted spouse the right to dissolve the marriage for such desertion after two years. That paragraph provides that a petition may be presented upon evidence:

“(c) that the respondent has wilfully deserted the petitioner for a continuous period of two years or more immediately preceding the presentation of the petition."

[12] Mr. Niu submitted that where parties to the marriage were no longer living together because one party has deserted, thus resulting in a separation without the consent of the other party, the only ground upon which a divorce can be granted after two years is on the petition of the innocent party. If the deserting party can obtain a divorce after two years in reliance on paragraph (f), that would render paragraph (c) practically of no effect.

[13] In our view, this submission loses much of its force when regard is had to the history of the relevant provisions. The provision was initially contained in the Divorce Act (Cap 18) passed on 12 August 1927. The equivalent paragraph in that Act was s 2 (f) which was added by Act No 15 of 1944 and amended by Act No 7 of 1960. That paragraph is in similar terms to the present paragraph (f) except that the period stated is five years, not two years. This and other provisions were amended by Act No 39 of 1988 which enacted s 3 in its present form.

[14] Thus the scheme of the provision previously was that a divorce was available to an innocent deserted party on the ground of two years desertion or to either party where they have been separated for five years and otherwise complied with the terms of the paragraph. However, when the provision was amended, the legislature simply reduced the relevant period in paragraph (f) from five years to two years, leaving the desertion period unchanged.

[15] Mr. Niu referred us to three authorities. The first was the decision of the Privy Council in Tupou v Taumoepeau (1954) 2 TLR 186. In that case the wife had left the husband and had been living with another man up to the date of the hearing. In the Supreme Court a decree was refused, the Judge holding that, as the separation had been caused by the petitioner wife, she, as the party solely responsible for the separation, was not entitled to a decree. On appeal, the Privy Council referred to the then equivalent of paragraph (f) and held that as there was evidence that the parties having separated for over five years without both of them maintaining normal marital relations or cohabitating with each other, the petitioner was entitled to succeed. A decree nisi was accordingly granted. This is a clear authority in support of the interpretation that a petition based on paragraph (f) can be granted where the separation relied on is not a separation by the mutual agreement of the husband and the wife.

[16] The second case, Vakaahi v Feke, no FD 87/1986, decision 14 July 1989, was a decision of Webster J. The petitioner had deserted the respondent more than five years before the presentation of the petition and admitted that he had committed adultery with another woman with whom he had been living since the separation. The respondent opposed the petition on the grounds of the petitioner's adultery, her intention of maintaining the marriage as shown by her living in the petitioner's house and because she was a committed Roman Catholic.

[17] The Judge held that the grounds required by paragraph (f) had been made out. The only issue before the Court was whether to exercise its discretion to grant a decree. For reasons set out in the judgment, which are not relevant in the present case, he held that the discretion should be exercised in favour of the petitioner and granted a decree nisi.

[18] The third case was the decision of Webster J in Helame v Kolo no FD 94/1988, decision 9 August 1989. The circumstances were very similar to those in Vakaahi. Again, this was a petition for divorce based on paragraph (f). The petitioner had deserted the respondent and had admitted adultery with another woman with whom he had been living for about nine years. The respondent opposed the petition on the grounds of the petitioner's adultery and of her intention to maintain the marriage. The Judge referred to the decision of the Privy Council in Tupou, which he described as a very similar case to that before him. On the authority of that case, other things being equal, the petitioner was entitled to a divorce.

[19] However he held that the Court has a discretion whether to pronounce a decree for divorce if the petitioner has been guilty of adultery. Having considered the circumstances of the parties and in view of the making of an interim maintenance order in favour of the respondent, he held that this was not a case for refusing a divorce. A decree nisi was granted.

[20] Taking into account the meaning of the phrase in the context of paragraph (f), the provisions of s 3 (1) as a whole and the authorities to which we have referred, we conclude that the phrase "have been separated" in paragraph (f) should be interpreted as equivalent to "have been living apart". If the parties have been separated in the sense of living apart for the requisite time, the paragraph provides a ground for divorce if the other requirements are satisfied. We find no basis for importing into the provision a requirement that the separation must be with the consent, expressed or implied, of both parties.

Issue [b] – “without both maintaining . . . normal marital relations”

[21] Mr Niu submitted that what the provision in paragraph (f) means and requires is that both of the parties have failed to maintain or failed to intend to maintain or renew normal marital relations with each other during the two years immediately preceding the filing of the petition. If only one of the parties has so failed, then the ground is not satisfied and the petition must be dismissed.

[22] On this issue the Chief Justice said:

“The wording of the provision with its reference to "both of them" makes it a ground which can be proved by unilateral conduct or intent. Thus, if separation for the requisite period is proved, proof that one of the parties to the marriage has not maintained or intended to maintain or renew normal relations is sufficient whatever the wish or intention of the other party."

[23] We agree with the Chief Justice's approach. It follows that we do not accept Mr. Niu's submission. The effect of the provision is that the petition will be granted unless "both of them" have maintained or intend to maintain or renew normal relations. On the plain ordinary meaning of those words, if both the petitioner and the respondent have maintained or intend to maintain or renew normal relations, the petition will be refused. If both do not, and obviously that will be the case if one of them does not, the petition can be granted. As the Chief Justice put it, it is a ground that can be proved by unilateral conduct or intent. The meaning that Mr. Niu seeks to ascribe to the provision does not accord with the words used in the paragraph.

Further comments

[24] Mr. Niu submitted that the wife has no right to hold a town allotment or a tax allotment as can her husband, because she shares her husband's town and tax allotment during her marriage to him and for the rest of her life after he dies as a widow's estate. When she is divorced from her husband, she loses those rights. The divorced husband retains title to his town and tax allotments and grants to another woman the rights which his divorced wife had, by marrying that other woman.

[25] In the present case the wife and some of the children of the marriage live with her on her deceased father’s ‘api. The petitioner's house is let and the rent is paid to the respondent. As the Chief Justice said, there are financial issues to be decided and there will be no decree absolute until those matters are resolved.

[26] There is now no matrimonial property legislation in the Kingdom. There would have been previously when s 5 of the Civil Law (Cap. 25) provided that the Court shall apply the common law of England and the rules of equity, together with statutes of general application in force in England. When this section was in that form, the English legislative provisions relating to the division of matrimonial property on the breakdown of the marriage would have applied in Tonga. However, by Act No 9 of 2003 the words "together with statutes of general application in force in England" were deleted, with the consequence that the English legislative provisions no longer apply.

[27] We appreciate that different social and economic conditions in the Kingdom may mean that the English legislative provisions are not suitable. However, it is our recommendation that the legislature should consider whether there should be legislative provisions relating to the division of matrimonial property on the breakdown of the marriage, appropriate to the social and economic conditions in Tonga. Without any such provisions, there remains the distinct possibility that one party to the marriage, usually the wife, may be unfairly disadvantaged.

The result

[28] The grounds of the appeal having failed, the appeal is dismissed. The decree nisi made by the Chief Justice is confirmed. We make no order as to costs.

Burchett J
Tompkins J
Salmon J