Robinson v Halatoafa [2018] TOSC 20; FD 168 of 2017 (1 June 2018)

IN THE SUPREME COURT OF TONGA
FAMILY DIVORCE JURISDICTION
NUKU’ALOFA REGISTRY

FD 168 of 2017

BETWEEN : NINIAN CHARLES ROBINSON

- Petitioner

AND : MELANIA HALATOAFA

- Respondent

BEFORE LORD CHIEF JUSTICE PAULSEN

Hearing : 17 May 2018

Date of Ruling : 1 June 2018

Counsel : Miss L. Tonga for the petitioner

RULING

[1] The petitioner seeks an order for the dissolution of his marriage to the respondent. They were married at Nuku’alofa on 20 June 2013.
[2] The ground upon which the divorce is sought is that the parties have been living separate for a continuous period of more than 2 years without both of them maintaining or intending to maintain or renew normal marital relations under s. 3(1)(e) of the Divorce Act.
[3] The petition is unopposed and the petitioner was the only witness.
[4] Having heard the evidence of the petitioner I advised Miss. Tonga that it appeared that the Court could not grant the petition as the petitioner was not at the time he instituted the suit (or indeed at any time) domiciled in Tonga.
[5] The opening sentence of s. 3(1) of the Divorce Act provides:

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..

[6] The evidence, in so far as it relevant to this issue, was that the petitioner is an Australian citizen but presently he resides and works in New Zealand. He has been to Tonga on relatively short visits. On one of those visits of about one week in June 2013 he married the respondent. They have not lived together as husband and wife and they have never consummated the marriage. Since the marriage he has visited Tonga in January 2014, Christmas 2014/2015 and again for the hearing of the petition. He said it was always his intention that he and the respondent would live permanently in Australia.
[7] I gave Miss. Tonga until 25 May 2018 to file any submissions in support of the petition but no submissions were received.

[8] It is clear from the evidence that the petitioner, though presently in New Zealand, is domiciled in Australia. He has not and has never intended to live in Tonga on any sort of permanent basis and was not domiciled here when he instituted his suit. It follows that the petition must be dismissed.

Result.

[9] The petition is dismissed.

O.G. Paulsen
NUKU’ALOFA: 1 June 2018. LORD CHIEF JUSTICE