Fili v Afei [2015] TOSC 43; FD33.2015 (7 October 2015)

IN THE SUPREME COURT
FAMILY DIVORCE JURISDICTION
NUKU'ALOFA REGISTRY

FD 33 of 2015

BETWEEN :

RAYNOLD SETELO FILI
Petitioner

AND :

SILIA SOANA TOVAO AFEI
Respondent

Hearing : 21 May 2015
Appearance : Mr. S. Fili for the petitioner
No appearance for the respondent

RULING

[1] This is a petition for divorce on the ground set out in Section 3 (1)(g) of the Divorce Act that the respondent has behaved in such a way that the petitioner cannot reasonably be expected to live with the respondent.

[2] The parties were married on 5 January 2012 at 'Eua. The evidence of the petitioner was that the respondent has refused to live with him since November 2013 when he returned to Tonga from Australia where he was on a seasonal workers scheme. The respondent said that she hated the petitioner and did not want to see him again, that she does not care about him and her family does not like him either. The petitioner said the respondent sent their daughter away to be cared for by her parents at this time and he has had no chance to see her. Since all this occurred the petitioner has had no contact with the respondent except in relation to getting a divorce.

[3] At the conclusion of the petitioner's evidence I advised his counsel, Mr. Fili, that in my view the ground relied upon for divorce had not been made out. I gave him an opportunity to provide me with submissions on any relevant case law that may have a bearing on the petition before I made my ruling. I have now received a letter from Mr. Fili in which he sets out three matters which he submits justify the granting of a divorce in this case. In respect of these matters they are either a repetition of the petitioner's evidence or are the usual incidents of the separation of any married couple, namely the cessation of both sexual relations and the performance of domestic duties.

Discussion

[4] Whilst the petitioner will have been deeply hurt by his wife what he has described in his evidence is common following the failure of a marriage. Section 3(1)(g) is not concerned with such matters but with acts of a party to the marriage that destroy the fabric of the relationship and result in the failure of the marriage. Those are acts such as domestic violence, aggression or physical and mental abuse. Tonga v Falepapalangi [2009] Tonga L.R. 33.

[5] Any other interpretation would effectively mean that parties to a marriage would be entitled to a divorce upon separation and would deprive the grounds of divorce set out in section 3(1)(a) to (f) of the Divorce Act of any meaning. That is clearly not the law in Tonga.

[6] The Court's obligation is to apply the law and whilst there is no doubt that the marriage between these parties is over that does not entitle the petitioner to a divorce; at least not yet. On the information before the Court the petitioner will be entitled upon the expiration of two years from separation (November 2015) to apply for a divorce on the grounds in section 3(1)(f) of the Act.

[7] I dismiss the petition for a divorce.

LORD CHIEF JUSTICE

DATED: 3 June 2015.