Lemoto v Veikune [2013] TOSC 12; FD17 of 2013 (25 July 2013)

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

NO. FD. 17 of 2013

BETWEEN:

TEVITA TOMINIKO FANGUMAHUA 'I VAIOLA LEMOTO
Petitioner

AND:

'ILISAPESI VEIKUNE
Respondent

BEFORE LORD CHIEF JUSTICE

Mrs. F. Vaihu for the Petitioner

'O. Pouono for the Respondent

JUDGMENT

1. This is a defended husband's petition for divorce brought under the provisions of Section 3(1)(f) of the Divorce Act (Cap 29).

2. Section 3(1)(f) is as follows:

"Any husband or wife who is at the time of the institution of the suit domiciled in the kingdom may present a petition to the Supreme Court praying the Court to dissolve the marriage upon 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;"

3. Paragraph 7 of the petition (which was filed on 22 March 2013) stated that:
   

"The parties have lived separate and apart since 21st day of March 2011 to date without either of them intending to maintain normal marital relations."

4. On the day of the hearing Mrs Vaihu obtained leave to amend the date 21 March 2011 to 11 July 2011.

5. In her answer (entitled "statement of defense") the respondent wife disputed paragraph 7 of the petition. She pleaded that:

"(a) the petitioner went on a family and business trip to Australia using the family's travel agency business of Angelica Travel when the respondent managed;

(b) the petitioner did maintain contact with the respondent as either by electronic means and/telephone; and

(c) the petitioner came back to Tonga in about October 2012 and has chosen to live separate from the respondent."

6. The petitioner was the only witness. He told the Court that he went to Australia in March 2011, making use of a multiple entry business visa which he had held for many years. He went with the intention of leaving his wife because he "had enough" of her. He returned in June 2011 but he and his wife kept arguing. Apparently the main problem was the wife's alleged incompetence in running the family's travel business. In July 2011 the petitioner again went to Australia. He went to attend a tourism trade show. He told his wife that he was actually going to pick fruit. According to the petitioner he had frequently gone to Australia before for 3 months stays and on this occasion he did not discuss the length of his departure with his wife.

7. Rather than stay 3 months the petitioner actually stayed in Australia until October 2012. What happened on his return is not clear but the petitioner told me that in that month he met the respondent who was now living at her parent's home. According to the petitioner the respondent attempted to have sexual intercourse with him "one last time" after which she would sign his divorce papers. The petitioner's evidence was that he had not had sexual intercourse with his wife since July 2011.

8. In response to questions from the Court the petitioner claimed that he told the respondent "a week after" his arrival in Australia in July 2011 that their marriage was "all over". The petitioner told the Court that when she was given this news, the respondent was very upset, she was "not at all happy about it". Despite having told his wife that their marriage was over, the petitioner accepted that he continued to communicate with her by telephone and by sending money to her on eight occasions.

9. At the close of the petitioner's case I ruled that the respondent had no case to answer. My reasons are as follows:

10. Section 3(1)(f) requires proof of two distinct ingredients. The first is that the parties had lived separate and apart for 2 years immediately preceding the presentation of the petition. Even disregarding the October 2012 contact, the petitioner's case (upon which the petition was amended) was that he and his wife separated in July 2011. The petition was presented in March 2013 which is less than 2 years after the separation was said to have occurred.

11. The second ingredient requiring proof is that during the separation period neither of the parties maintained or intended to maintain or renew normal marital relations with the other. In undefended suits this ingredient is pleaded, is not disputed and is therefore taken as proved. In the present case the petitioner's own evidence was that his wife was very upset to hear that the petitioner regarded the marriage as over and, in October 2012, made an attempt to renew their sexual congress. The respondent's case was that it was in October 2012, not July 2011 that the final separation took place.
12. Having seen and heard the petitioner it was plain to me that the reality was not that the July 2011 separation was consensual but that in fact the petitioner deserted the respondent at about that time.

13. Two years separation without the parties' consensus that normal marital relations not be maintained or resumed is not a ground for divorce. Furthermore, a petitioner cannot seek relief on the basis of his own desertion (see Section 3(c)).

14. Mrs Vaihu referred me to the three months period provided in Section 3(2)(b) of the Act, however my view is that this period has no application when the parties have not resumed cohabitation to attempt reconciliation. She also suggested that the consequence of my interpretation of the Act was that the petitioner was left with no means to terminate his marriage. In the circumstances as they are now that may well be the case; Tonga's divorce laws are still fault-based and an innocent party (Sections 3(1)(d) and (e) apart) cannot be forced into divorce against his will. Circumstances, however, change and the time may well come when the respondent recognises that her marriage cannot be revived.

Result:

1. The petition is dismissed.

2. Respondent's costs of $400 to be paid within 14 days.

3. Ancillary relief to be considered following disposal of civil appeal AM 15/13 which is to be mentioned on 2 August 2013.

DATED: 25 July 2013.

CHIEF JUSTICE