Tonga v Halapua [2004] TOSC 19; FD 107 2002 (14 April 2004)

IN THE SUPREME COURT OF TONGA
DIVORCE JURISDICTION
NUKU'ALOFA REGISTRY

NO. FD. 107/02

BETWEEN:

VILIAMI VA’INGA TONGA
Petitioner;

AND:

SILIA HALAPUA
Respondent.

BEFORE THE HON. CHIEF JUSTICE WARD

Counsel: Mr Piukala for petitioner
Mr V. Foliaki for respondent

Date of Hearing: 19 March, 2004.
Date of Judgment: 14 April, 2004.

JUDGMENT

This is a contested petition for divorce on the ground, under section 3(1)(f) of the Divorce Act, Cap 29, of separation for more than two years.

The petitioner married his wife on 24 May 1969 in the Anglican Church in Nuku’alofa. There were three children from the marriage all of whom are now over 25 years of age.

There is no dispute that the petitioner left the respondent in October 2000. He went to live with another woman in ‘Eua with whom he still lives and by whom he has had a child.

The respondent is living on her deceased father’s ‘api to which her brother is the heir. The two unmarried oldest children of the marriage, a daughter and a son, live with her. The youngest daughter is married and at the University of the South Pacific in Fiji.

The petitioner’s house is let and the rent is paid to the respondent. There are financial issues to be decided but they will be dealt with on affidavits in chambers. The hearing in court was devoted solely to the question of the dissolution of the marriage.

It is clear on the evidence that, since the petitioner left the respondent, the latter has spoken to her husband on the telephone and has been across to ‘Eua a number of times. It is apparent that she has hoped by such contacts to restore their relationship. She told the court that she would like to have him back home and that the children share that wish. He, on the other hand, is adamant that he will never go back.

Both parties gave evidence and there is no doubt both were truthful.

The petitioner seeks a divorce because he has started a new home and family. He told the court repeatedly that he has no intention of returning to the respondent and that has been the position ever since he left in October 2000. At that time he took a decision to abandon his previous marriage and to start another relationship and he intends to continue with it. He has made arrangements to support his wife and there appears to be no intention to resile from that obligation.

The respondent wishes to preserve the marriage for two reasons both of which I accept are genuine and deeply felt. She still loves the petitioner. She knew nothing of his affair until the moment he left. It was a great shock and to a large extent she is still trying to pick up the pieces. Despite his actions over the last three years or so, she believes she could still have him back as her husband. That belief is strengthened by her religious objection to divorce.

She is an Anglican. Her father was a bishop in that persuasion and she was brought up in a devout Anglican home. She believes that the marriage vow is a binding commitment for life. She made it in that belief and cannot accept that, if she is divorced, she can ever hold the same position in the church again. There can be little doubt that, in this case, she is the innocent party and I trust that the members of her congregation will understand her position.

The petitioner does not challenge the genuine strength of his wife’s beliefs but his position is that Christian beliefs are individual. He summed up his position to the court with the statement, "I believe what I believe and she believes what she believes".

I have dealt with that aspect of the case because it is there that the real division lies. However, whilst the court must hear and consider these matters, they are not the core of the decision it must make which is whether the parties have separated without a mutual wish to resume normal marital relations.

Section 3(1)(f) provides that it is a ground to dissolve a marriage if there is evidence:

"(f) that the respondent and 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."

This is unlike the grounds for divorce which require proof of a matrimonial offence such as adultery, wilful desertion or unreasonable behaviour. Under subsection (1)(f), the petitioner has only to satisfy the court that the parties have been separated for the period of 2 years or more immediately prior to the petition and that, during that period, there has not been a mutual maintenance of or intention to maintain or renew normal marital relations. 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.

In this case, there is no dispute about the period of the separation. On the evidence I have heard, it is clear that the petitioner has not maintained and has no intention to maintain or renew normal marital relations with the respondent and has held that position since he left. The evidence of their beliefs and attitudes is relevant only to the determination of that fact.

As I have stated, I have no doubt about the genuine strength of the respondent’s beliefs nor that my decision runs counter to those. However, the law only requires the court to be satisfied that it has not been the wish and intention of both the parties during the period of separation to maintain the marriage. I am so satisfied and there shall be a decree nisi.

I shall adjourn the question of financial provisions to chambers at a date to be agreed and shall then set a timetable for the provision of affidavit evidence. There can be no decree absolute until those matters are resolved.

NUKU’ALOFA: 14 March, 2004.

CHIEF JUSTICE