Tonga v Falepapalangi [2009] TOLawRp 33; [2009] Tonga LR 288 (30 June 2009)

IN THE SUPREME COURT OF TONGA
Supreme Court, Divorce Jurisdiction, Nuku'alofa

FD 36/2009

Tonga

v

Falepapalangi

Andrew J
12 June 2009; 30 June 2009

Divorce – ground of unreasonable behaviour – ground not established – petition dismissed

The parties married on 25 February 1992 and had two children. In 2008 the husband left the matrimonial home. The husband petitioned for divorce on the grounds that the respondent had behaved in such a way that the petitioner could not reasonably be expected to live with her. The Petitioner claimed that there was a denial of conjugal rights which was largely brought about by the respondent's excessive religious beliefs and that he could not reasonably he expected to live with the respondent. The respondent responded that the relationship was both a loving and caring one until the petitioner met his current de facto wife. The petitioner also claimed custody of the two children.

Held:

1. That unreasonable behaviour ground for divorce was largely introduced to deal with domestic violence and acts of aggression and abuse. It was not the role of the Court to decide what might be an appropriate level for the exercise of conjugal rights beyond which it could be said that a petitioner could not be reasonably expected to live with the other party. The Court found that the Petitioner's real motivation was that he wanted to re-marry and he did not want to have to wait for the 2 year period of separation to pass when he would be eligible to obtain a divorce.

2. The petition for divorce was dismissed.

3. Maintenance and custody arrangements were to remain the same.

Statute considered:

Divorce Act (Cap 29)

Counsel for the petitioner : Mr Fifita
Counsel for the respondent : Mrs Vaihu

Judgment

This is a petition for divorce on the ground, pursuant to s 3(c) of the Divorce Act, that the respondent has behaved in such a way that the petitioner cannot be reasonably be expected to live with her. There is also a claim for custody of the two children of the family.

The parties were married on the 25th of February 1992. There is no dispute that in recent times (last year) the petitioner left the matrimonial home.

The unreasonable behaviour which the Petitioner claims is that there has been a denial of conjugal rights which has been largely brought about by the Respondent's excessive religious beliefs and that in these circumstances he cannot reasonably he expected to live with the respondent. The respondent says that this is not true and that the relationship was both a loving and caring one until the petitioner met his current de facto wife.

I think this ground for divorce was largely introduced to deal with domestic violence and acts of aggression and abuse. It is hardly the role of the Court to be deciding what might be an appropriate level for the exercise of conjugal rights beyond which it could be said that a petitioner could not be reasonably expected to live with the other party. No doubt all relationships are different.

But in this case I think the Petitioner's real motivation is that he wants to re-marry and he does not want to have to wait for the 2 year period of separation to pass when he will be eligible, to obtain a divorce. On the facts of the case I think the Petitioners claim of the denial of conjugal rights is exaggerated, motivated I think, by his desire to re-marry as soon as he can. I found the respondent to be a mature and reasonable person who was quite open about her marriage and who said that they had enjoyed a loving and caring relationship. I accept her as an honest and reliable witness.

For these reasons I am not satisfied on the balance of probabilities that the Petitioner has established the ground for divorce.

I dismiss the petition for divorce. Costs are awarded to the respondent.

Maintenance

The petitioner agrees that he will pay maintenance. An interim order was made in the sum of $150 per fortnight. The respondent is seeking $100 per child per fortnight and $50 accommodation costs.

The Petitioner earns some $455 per fortnight out of which both parties agree that $100 per fortnight goes and should go to his sister. But the respondent is also employed and receiving a wage. The Petitioner is also responsible for a new family.

In the circumstances I believe the claimed amount is too high and I would confirm the interim order and award the sum of $150 per fortnight.

Custody

The children of the marriage remain with their mother. The Petitioner's claim to custody does not seem to me to have been pursued to any great extent.

I would award custody of the two children of the marriage to the Respondent with reasonable rights of access to the Petitioner.