Valeusa v Mate [2020] TOSC 79; FD 122 of 2020 (6 October 2020)

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

FD 122 of 2020

BETWEEN:

RUSIATE VALEUSA Petitioner

AND

MEREIA MATE Respondent

Petition for divorce of a foreign marriage - jurisdictional issue
Application for custody

RULING

Before: Lord Chief Justice Whitten QC
Appearances: Mr S. Fili for the petitioner
No appearance for the respondent
Date of hearing: 15, 28 September 2020
Date of ruling: 28 September 2020

INTRODUCTION

1. The parties to this proceeding are citizens of the Republic of Fiji. They were married in Fiji in 2001. They had three children. They separated in 2010. Later that same year, the petitioner moved to Tonga where he has since been domiciled for almost ten years. The respondent and the three children of the marriage have remained in Fiji.
2. On 15 July 2020, the petitioner filed an application for divorce on the ground that the parties have been separated for a continuous period of over two years without maintaining or intending to maintain normal marital relations or cohabitation since the separation on 25 March 2010. He also sought an order for custody of the two dependent children of the marriage with access to the respondent.
3. During the proceeding, orders were made for leave to serve the proceedings on the respondent in Fiji by registered post to an address provided by the petitioner’s sister who lives there. Evidence of service was filed. As at the expiry of the 42 day prescribed period, the respondent had not filed any answer or cross-claim to the petition. The matter therefore proceeded undefended.

THE JURISDICTIONAL ISSUE

4. At the first hearing of the petition, an issue arose as to this Court’s jurisdiction to dissolve a foreign marriage or make orders in respect of the children who are citizens of and resident in Fiji. Mr Fili, for the petitioner, responded solely by reference to his previous experience that petitions in other cases before this Court involving foreign marriages had been granted in the past. However, he also conceded that, as far as he was aware, this question had never been raised before. Two other senior family law practitioners, who were in court that day, concurred.
5. In those circumstances, the matter was adjourned for further consideration. Subsequent research revealed a dearth of authority on the issue and tended, therefore, to reinforce Mr Fili’s experience.^[1]
6. On 25 September 2020, Mr Fili filed submissions on this issue, which may be summarised as follows:
   • (a) Osborn's Concise Legal Dictionary defines "domicile" as meaning the country in which a person is or is presumed to be permanently resident; the place of a person's permanent home.
   • (b) The civil status of the person or his legal rights and duties, including capacity to marry are determined by the law of his domicile.
   • (c) "Traditionally many common law jurisdictions considered a person's domicile to be a determinative factor in the conflict of laws and would, for example, only recognise a divorce conducted in another jurisdiction if at least one of the parties were domiciled there at the time it was conducted".^[2]
   • (d) The New Zealand Family Proceedings Act 1980 and the Fijian Family Law Act 2003 provide, respectively, that in those countries, jurisdiction is conferred on the relevant courts in respect of proceedings under their respective Acts, where at the commencement of the proceedings, any party to the proceedings resides or is domiciled in those countries.
   • (e) The New Zealand and Fiji provisions define ‘domicile' more clearly than the law of Tonga which 'is silent on the definition of 'domicile'’.
   • (f) Sections 3 and 4 of the Civil Law Act of Tonga provide that the common law of England and the rules of equity in force at the relevant time may be applied where necessary and appropriate. The common law of England "only recognises a divorce conducted in another jurisdiction if at least one of the parties was domiciled there at the time it was conducted".^[3]
   • (g) As the petitioner is a Fijian citizen who has been in Tonga for the last 10 years and intends to be domiciled here, “it is valid under the common law of England for the Tongan court to dissolve the marriage solemnised in Fiji”.
7. On 28 September 2020, when the matter returned for further hearing, and after having received Mr Fili’s written submissions and having conducted research of my own, I indicated that I was prepared to accept that the Court had jurisdiction to hear the petition. I also indicated that I would deliver written reasons to explain that decision.
8. Though a trial judge’s primary function is to decide the case before the court and explain the result, it has been said, at appellate level, that from time to time, the judge may go beyond that task and do so to the benefit of the law. During the course of preparing these reasons, I have been cognizant of the caution by higher courts that ‘a trial judge embarking upon discussion superfluous to the discharge of the primary role may provoke an appeal, based on the proposition that the irrelevant considerations may have influenced the final result’.^[4] Further, straying from the discipline of ‘judicial economy’^[5] may risk a trial judge being distracted from their central function, which is to make the necessary findings of fact thrown up by the immediate case, and apply the settled law to them: Wei & Wei and Anor [2020] FamCAFC 224.
9. For the reasons which follow, it is hoped that the reality and relevance of this issue will become apparent, and that its resolution may be of future assistance to the law in Tonga on this subject.
10. Court orders for divorce significantly alter the legal and social status and rights of parties to a (former) marriage. For instance, in almost all jurisdictions which do not embrace polygamy, divorce is a legal prerequisite for remarriage. Divorce may also trigger other adjustments to the parties’ rights including property and other financial settlements, and changes to parenting rights and responsibilities in respect of any children of the marriage.
11. In modern times, a court’s power to make such orders usually flows from the statutory source of jurisdiction conferred on the court. In jurisdictions such as the UK,^[6] throughout Australasia^[7] and a number within the Pacific,^[8] respective family law and related statutes expressly confer jurisdiction on designated courts in respect of proceedings under those Acts, including the jurisdiction to dissolve marriages, i.e. to make divorce decrees.

Tongan legislation

12. In approaching the task of identifying jurisdiction, I follow the approach adopted by Blackburn J in Castrique v Imrie (6) [1870] UKLawRpHL 5; (1870) LR 4 HL 414 by asking ‘first, whether the subject-matter is so situated as to be within the lawful control of [Tonga] under the authority of which this Court sits; and, secondly, whether the sovereign authority of [Tonga] has conferred on the Court jurisdiction to decide on the disposition of the thing, and the Court has acted within its jurisdiction’.^[9]
13. The foundation for jurisdiction of the Supreme Court of Tonga lies in clause 90 of the Constitution, which provides, relevantly, that the Supreme Court shall have jurisdiction in all cases in Law and Equity arising under the Constitution and Laws of the Kingdom (except cases concerning titles to land which shall be determined by a Land Court subject to an appeal to the Privy Council in matters relating to hereditary estates and titles or to the Court of Appeal in other land matters).
14. From there, s.4 of the Supreme Court Act specifies that the Supreme Court shall have jurisdiction to hear any proceedings, other than proceedings which are excluded from the jurisdiction of the Supreme Court by the Act of Constitution of Tonga; or, which by law are within the exclusive jurisdiction of another court or tribunal. Section 5(1) provides that the powers of the Supreme Court within the Kingdom shall include, mutatis mutandis, all the powers for the time being vested in or capable of being exercised by the High Court of Justice in England and Wales.
15. The broad references above to “all cases ... arising...under the...Laws of the Kingdom” and “to hear any proceedings” arguably suffice to found jurisdiction in the Court to hear and determine ‘cases’ or proceedings brought under the relevant divorce law of the Kingdom.
16. That law is found in the Divorce Act ^[10]. Relevantly, s. 3(1) commences:

3 Grounds for divorce petition

(1) 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 (hereinafter referred to as the “Court”) praying the Court to dissolve the marriage upon evidence — ...

The balance of the section prescribes the various grounds for divorce.

17. That provision defines the requirements for standing as a petitioner. However, it does not expressly confer jurisdiction on the Court. Nor does any other provision of the Divorce Act. By contrast, for example, s.3 of the Guardianship Act expressly confers jurisdiction on the Supreme Court wherever any question of guardianship, custody and access to children arises in any proceedings before the Court.
18. It is trite that the Court must give effect to the ascertained purpose of the legislature. It must be presumed that the legislature intended to pass legislation that would work. Therefore, in interpreting the statute, Court should strive for an interpretation, applying common sense, which will make the Act work in the manner that the Court presumes Parliament must have intended and avoid one which would render it, among other things, unworkable, impracticable or anomalous: Collector of Customs v Agfa Gevaert Ltd [1996] HCA 36; (1996) 186 CLR 389; Edwards v Fifita [1999] Tonga LR 75. If necessary, the Court should go beyond a purely semantic approach to the discovery of statutory meaning: Foots v Southern Cross Mine Management Pty Ltd [2007] HCA 56 at [96]. Strict grammatical meaning must yield to sufficiently obvious purpose: Crown v Schaumkel [2012] TOCA 10.
19. When Parliament agreed to s.3(1) providing for the presentation of petitions ‘praying the Court to dissolve the marriage’, it must be taken to have intended that the Court could, if satisfied of the requirements and grounds for divorce therein, grant the relief sought. To interpret the provision otherwise would be productive of absurdity and mischief by casting doubt over the validity of the numerous divorce decrees issued since the commencement of the Act in 1927 and its substantial amendments in 1988. Thus, the provision may be regarded as having implicitly conferred jurisdiction on the Court to dissolve marriages where the petitioner is domiciled in Tonga at the time of filing the suit.
20. To that point then, the proposition that the Tongan Supreme Court has jurisdiction to hear and determine divorce proceedings between Tongan subjects, in respect of marriages solemnised in Tonga, can only be regarded as unremarkable and uncontroversial.

Foreign marriages

21. However, what of a case such as here, where the parties to the marriage are not Tongan subjects and their marriage was solemnised in Fiji. What jurisdiction does the Tonga Supreme Court have to dissolve a foreign marriage?
22. The question is not moot for at least two reasons.
23. Firstly, decrees for divorce substantially affect the rights of the parties. As alluded to above, one such consequential alteration will often be as to entitlement, ownership and division of matrimonial property. The present case illustrates how the result of divorce on a party subject to Tongan laws may be significantly different to that of a party under Fijian law. In Tonga, the effect of s.15 of the Divorce Act is that each of the parties to the marriage so dissolved retains his or her ‘own’ property. The provision does not expressly address jointly owned property gained during the course of the marriage. By comparison, Part 7 of the Fijian Family Law Act empowers the Family Court there to make such orders as it considers appropriate to alter the interests of the parties in respect of the property of the parties to a marriage.^[11]
24. Secondly, another general presumption in statutory interpretation is that the legislature does not intend to exceed its jurisdiction. Primarily, the legislation of a country is territorial. The general rule is, that extra territorium jus dicenti impune non paretur meaning that he who administers justice outside of his territory is disobeyed with impunity. The laws of a nation apply to all its subjects and to all things and acts within its territories. They apply also to all foreigners within its territories (not privileged like sovereigns and ambassadors) as regards criminal, police, and, indeed, all other matters except some questions of personal status or capacity, in which, by the comity of nations, the law of their own country or the lex loci actus or contractus applies: Maxwell on Interpretation of Statutes, 9th ed, p 148.
25. Therefore, while an order of this Court dissolving the marriage may operate in Tonga to render the petitioner here divorced, and thus enable him to, say, remarry in Tonga, the question arises as to the legal and marital status of the respondent hereto in Fiji as a result of any such order of this Court. Similarly, and even though the issue did not arise in this proceeding, a further question may present as to whether the property law provided by s.15 referred to above could apply to the parties’ property in Fiji. Insofar as that outcome could be at odds with the approach and orders the Fijian Family Court may make in respect of the parties’ property, a conflict of laws issue may result.
26. The corresponding provisions in the UK, Australian, New Zealand and Fiji legislation cited above,^[12] mostly refer to jurisdiction in respect of “a marriage”.^[13] In the past, when certain of the statutory Laws of the United Kingdom applied in Tonga, s.1 of the Matrimonial Causes Act 1973 provided that a petition for divorce could be presented to the court by either party to a marriage on the ground that the marriage had broken down irretrievably.
27. Curiously, however, the object of a petition for divorce filed pursuant to s.3 of the Tongan Divorce Act is referred to as “the marriage”. The term does not naturally differentiate between marriages solemnised in Tonga and those solemnised in other countries. The Act is otherwise silent as to the Court's jurisdiction in respect of foreign marriages.
28. Is any significance to be attached in the difference between the indefinite article - ‘a’ marriage - and the definite article - ‘the’ marriage? The reference to ‘a marriage’ in the legislation elsewhere may be accepted as meaning ‘any marriage’, including foreign marriages. That is also consistent with other parts of those jurisdictions’ legislation which found jurisdiction on nationality, residence or domicile, provide for the recognition of foreign divorce decrees (referred to further below) and other ancillary orders and the ability for those courts to make orders for divorce or nullity by reason of facts and circumstances occurring outside their respective jurisdictions.^[14] It is also consistent with the multitude of cases decided by those courts where jurisdiction has been invoked by one or more of the statutory prerequisites, such as the petitioner being domiciled in that jurisdiction.
29. However, the Tongan Divorce Act does not contain any such provisions. Similarly, the Births, Deaths and Marriages Registration Act is silent on the recognition of foreign marriages or divorces. The Reciprocal Enforcement of Judgments Act is limited to money judgments.
30. Recently, in Tavake v Pifeleti & anor (unreported, Supreme Court, FA 77 of 2018, 14 August 2020) this Court had occasion to examine a related question of whether it had jurisdiction to declare a marriage, in which one party to it was domiciled in the United States, void on account of bigamy. The only statutory means by which the Court may declare a marriage null and void is s.11 of the Births, Deaths and Marriage Registration Act, but only consequent upon a conviction under that section. Notwithstanding, it was held that the Court’s declaratory jurisdiction and the nature of annulment proceedings at common law inclined to the view that this Court did have jurisdiction to grant the relief sought.
31. However, the jurisdiction to annul a marriage or declare it invalid is different to a divorce jurisdiction where a court is called upon to dissolve an otherwise valid marriage: In the matter of Ramsay-Fairfax [1955] 3 All ER 695.

Common law

32. The analysis in the Tavake decision necessitated resort to common law authorities. So too, on the instant issue of whether the Court has jurisdiction to dissolve foreign marriages, in the absence of clear Tongan legislative provision, examination of the English common law is warranted: ss 3 and 4 of the Civil Law Act.
33. It ought be borne in mind throughout, however, that the common law in respect of the divorce jurisdiction of the UK courts has been heavily modified, and arguably subsumed, by a multitude of legislative developments over the past hundred years or so.^[15]

Validity

34. The starting point is the validity of the foreign marriage. Not enough was known in the instant, undefended proceeding to raise any issue as to the validity of the subject marriage in Fiji. However, it has been repeatedly held that ‘there can be no doubt of the general rule, that a foreign marriage, valid according to the law of the country where it is celebrated, is good everywhere’: Pugh v Pugh [1951] 2 All ER 680.^[16] The rule is subject to exceptions such as marriages involving polygamy and incest and those positively prohibited by the public law of a country from motives of policy. Hence, if the marriage is contrary to the law of the country of domicile, and it is declared void by that law, it is to be regarded as void in the country of domicile, though not contrary to the law of the country in which it was celebrated.": Ogden v Ogden [1904-07] All ER Rep 86.^[17]

Domicile

35. Before 1857, the prevalent view of the English courts was that a marriage duly celebrated in England could not be ‘got rid of’ (except by Act of Parliament) so far as England was concerned, even by a foreign decree, at least when the domicile at the time of the marriage was English.
36. By the Divorce Act of 1857, the indissoluble character of an English marriage disappeared, and for the first time, ‘divorce a vinculo’^[18] was able to be granted by a court of general law in England.
37. Since that Act and decisions such as Le Mesurier v Le Mesurier [1895] UKLawRpAC 34; [1895] AC 517, and those which followed it,^[19] the modern doctrine of domicile prevailed as the true test of jurisdiction. Those decisions established that, on principle, for a decree of dissolution of a marriage, the court of the domicile is the true court of exclusive jurisdiction: Salvesen (or Von Lorang) v Austrian Property Administrator [1927] All ER Rep 78.
38. Until the Domicile and Matrimonial Proceedings Act 1973, the domicile of a married woman was deemed to be the domicile of her husband. The abolition of that rule is reflected in s.20 of the Tongan Divorce Act^[20] which extends the Court’s jurisdiction to entertain proceedings by a wife, notwithstanding that the husband is not domiciled in the Kingdom, in specified circumstances such as where the wife has been deserted by her husband; or the husband has been deported from the Kingdom; or the wife is and has been resident in the Kingdom for two years immediately preceding the commencement of the proceedings.^[21]
39. Since 2003, the jurisdiction of the English courts has also been modified by that country’s (soon to end by ‘Brexit’) membership of the European Union.^[22] The Brussels IIR Regulation^[23] limits the jurisdiction of an English court in civil proceedings for divorce, legal separation or marriage annulment and the recognition and enforcement of judgments in matrimonial matters and matters of parental responsibility to where:
    • (a) either one or both spouses are habitually resident in England and Wales; or
    • (b) the applicant is habitually resident there and has resided there for at least a year immediately before the application was made; or
    • (c) the applicant is habitually resident there and has resided there for at least six months immediately before the application was made and has his domicile there; or
    • (d) both spouses are domiciled there.
40. Further, the most recent evolution of the statutory law of divorce in the UK – the Divorce, Dissolution and Separation Act 2020 - has removed the requirement for proof of any of the former grounds, and now requires only that the marriage has broken down irretrievably.
41. Nowadays, in Australia, the jurisdiction for divorce proceedings before the Family Court is invoked where, on the date on which the application is filed, either party to the marriage is an Australian citizen, domiciled in Australia or is ordinarily resident in Australia and has been so resident for one year immediately preceding that date.^[24] Like the UK now, a divorce will only be granted on the ground that the marriage has broken down irretrievably and only if the parties have been separated for at least 12 months without a reasonable likelihood of cohabitation being resumed.^[25]
42. In New Zealand, s.2 of the Family Proceedings Act 1980 extends the definition of ‘marriage’ to a ‘union in the nature of marriage’ that is entered into outside New Zealand and which may be at any time polygamous where the law of the country in which each of the parties is domiciled at the time of the union then permits polygamy. By ss 4, 37 and 38, the Family Court may hear and determine any application for an order dissolving a marriage or civil union, where, at the time of the filing of the application, at least one party to the marriage or civil union is domiciled in New Zealand. Section 39 provides that an order for dissolving a marriage or civil union may be made only on the ground that the marriage or civil union has broken down irreconcilably, and only if the court is satisfied that the parties to the marriage or civil union have been living apart for two years immediately preceding the filing of the application.
43. Section 24 of the Fijian Family Proceedings Act 2003 provides that proceedings for the dissolution of marriage may be instituted by a party to the marriage if, at the date on which the application is filed, either party to the marriage is a Fijian citizen, domiciled in Fiji or ordinarily resident in Fiji and has been so resident for one year preceding the date of filing. Section 30 mirrors the UK and Australian position in that a divorce will only be granted on the ground that the marriage has broken down irretrievably and if the parties have been separated for at least 12 months without a reasonable likelihood of cohabitation being resumed.

Resolution

44. That exposition of the English common law authorities and statutory development in the UK, as largely followed by other related jurisdictions such as Australia, New Zealand and Fiji, leads, in my view, to the conclusion that when read in conjunction with clause 90 of the Constitution, ss 4 and 5 of the Supreme Court Act and ss 3 and 4 of the Civil Law Act, s.3(1) of the Tongan Divorce Act is to be interpreted as conferring jurisdiction on the Tongan Supreme Court to hear and determine proceedings to dissolve a foreign marriage wherever:
    • (a) the marriage is considered valid in Tonga; and
    • (b) the petitioner is domiciled in Tonga at the time the petition for divorce is filed.
45. In determining whether a divorce should be granted, the Court must be satisfied on the evidence presented that one or more of the grounds for divorce, set out in the balance of s.3(1), are proven. As in the instant case, those grounds include, most commonly, that the parties have been separated for a continuous period of two 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. ^[26]
46. In this case, I was satisfied on the evidence before the Court, that:
    • (a) the Court had jurisdiction to dissolve the marriage for the reasons given above;
    • (b) the petitioner was domiciled in Tonga at the time the petition was filed; and
    • (c) that the parties had been separated for a continuous period of two 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.
47. Accordingly, a decree nisi was issued.

Recognition

48. That order, once absolute, has the effect of altering Mr Valeusa’s marital status in Tonga as divorced. Whether the order will have the same effect elsewhere, particularly Fiji, and on the marital status of the respondent herein, Ms Mate, will depend on those jurisdictions’ recognition of the order of this Court.
49. The legislation of each of the countries discussed above includes provisions for the recognition of overseas orders. The UK Family Law Act 1986,^[27] the Australian Family Law Act 1975,^[28] the New Zealand Family Proceedings Act 1980^[29] and the Fiji Family Law Act 2003^[30] share certain common requirements for recognition of an overseas divorce as valid, such as:
    • (a) the decree must be effective under the law of the country in which it was obtained; and
    • (b) at the date on which the divorce proceedings were commenced, either party to the marriage was a national of that country, habitually resident (for various specified minimum periods) or domiciled in that country.
50. Fiji also extends recognition to any dissolution, annulment or legal separation that would be recognised as valid under the common law rules of private international law.
51. In Australia and Fiji, recognition of validity will be refused where:
    • (a) under the common law rules of private international law, a party to the marriage had been denied natural justice; or
    • (b) recognition would manifestly be contrary to public policy.
52. Therefore, and subject to the exceptions referred to immediately above, it may be expected that the divorce decree made in this proceeding will be recognised as valid by the Family Court of Fiji.

THE CHILDREN

53. In his petition, Mr Valeusa also sought an order for custody of the two dependent children of the marriage.
54. While s.19 of the Divorce Act clearly provides that in any proceedings for divorce, the Court may make such orders as appear just with respect to the custody, maintenance and education of the children of the family, the reasons for Mr Valeusa’s claim were not as clear.
55. In his affidavit in support of an application for leave to serve the initiating proceedings outside Tonga, Mr Valeusa explained that since October 2010, when he moved to Tonga for work purposes, his younger sister, Ateca Vare, has cared for his two dependent children at ‘his home’ in Suva. During his evidence in court, he elaborated that:
    • (a) the family home is in fact owned by his father who is still alive and lives in the home;
    • (b) he and the respondent lived there with their children when they were married;
    • (c) after their separation, the respondent commenced a new relationship and lives elsewhere with her partner with whom she has also had other children;
    • (d) Ateca and her husband and their children have continued to live in the family house where she also cares for Mr Valeusa’s two dependent children.
56. Mr Valeusa also gave evidence that in the 10 years or so since separation, he has physically spent time with the children once, about two years ago, when they came to Tonga to visit him for about a month. Otherwise, he said he has regular contact by telephone with them each week or so.
57. In circumstances where the children of the marriage are Fijian citizens, resident in Fiji, and where their mother is also a resident Fijian citizen, and in exercise of the Court’s discretion, I declined to make any orders in relation to them because, in my view, this Court is not the appropriate forum for consideration of any orders in respect of the children of this marriage.
58. The principles on forum non conveniens were summarised by Lord Goff of Chieveley^[31] in the leading authority of Spiliada Maritime Corp. v Cansulex Ltd [1986] UKHL 10; [1987] AC 460. Foremost among them is that it lies in the discretion of the court to stay a proceeding where the court is satisfied that there is some other available forum which has competent jurisdiction where the case may be tried more suitably for the interests of all parties and the ends of justice. The principles in Spiliada apply in Tonga: Wolf v Strauss [2011] TOCA 4.
59. In Sharma v Sharma [2014] TOSC 25, Chief Justice Scott stayed a petition for divorce with ancillary orders sought in respect of the children of that marriage where both parties and the children had returned to Fiji. Although, in this case, I granted the petition for divorce based on Mr Valeusa being domiciled in Tonga, I respectfully followed Scott CJ’s approach on the orders sought in respect of the children.
60. In my view, the Family Court of Fiji is the appropriate forum for any determination as to custody of, and access to, the children of this marriage. This Court is in no position to assess, and therefore cannot satisfactorily deal with, what is in the best interests of the children in Fiji. The very brief information in the Children Statement accompanying the petition shed little light on that paramount question.
61. I was not satisfied that the failure or decision by the respondent wife/mother not to defend or oppose the petition for divorce warranted the automatic making of custody orders in respect of the children in Fiji. Any application for such orders may be tried more suitably, and for the interests of all the parties, before the Family Court of Fiji.
62. Further, the reason for, and purpose of, Mr Valeusa’s application for custody was entirely unclear. He has not lived with the children for the best part of ten years. There was no evidence that he is intending to return to Fiji to resume living with the children, permanently or otherwise, any time soon; or that he required an order to ensure that the children’s welfare and best interests be protected. The only evidence was that they are, and have been, cared for by his sister. There was no evidence of any change to that arrangement being contemplated. The apparent lack of utility in the application was confirmed by Mr Fili’s lack of resistance when I indicated that I was uncomfortable with this Court entertaining it. I suspect the order was included in the petition as a matter of common form for most petitions for divorce filed in Tonga, rather than as a result of any considered decision to pursue it in the best interests of the children.
63. For those reasons, the application for custody was permanently stayed.

RESULT

64. For the reasons stated, the following orders were made:
    • (a) Leave to amend the petitioner’s surname from ‘Valeuta’ to ‘Valeusa’.
    • (b) The marriage solemnised on 10 March 2001 between the petitioner and the respondent be dissolved unless a sufficient cause be shown to the court within six weeks why this decree should not be made absolute.
    • (c) The Court declines to entertain the petitioner’s application for custody of the dependent children of the marriage, namely, Asaeli Gonekula (male, born 13 April 2003) and Saiasi Driti (male, born 27 November 2008); alternatively, that application before this Court is permanently stayed, on the basis that the appropriate forum for such application is the Family Court of Fiji.
    • (d) For the purposes of s.11(1) of the Divorce Act, it is certified that the petitioner makes no claim for financial provision.
    • (e) The petitioner is to serve a copy of this Decree on the respondent by registered airmail post and file a certificate of service of same within 14 days of the date hereof.
    • (f) The Acting Registrar of the Supreme Court is directed to serve a copy of this Decree together with the Court's Ruling on jurisdiction on the Registrar of the Family Court of Fiji and the Fijian Registry of Births, Deaths and Marriages.
      

NUKU’ALOFA	M. H. Whitten QC
6 October 2020	LORD CHIEF JUSTICE

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^[1] The only reported decision found, of tangential relevance only, is Cowley v 'Aholelei [1955] TOLawRp 1, where Hunter J held that the Supreme Court had jurisdiction to determine an application for validity of marriage between a Tongan and a British subject by reference to the Treaty of Friendship 1901.

^[2] From Wikipedia.

^[3] For which no authority was provided other than excerpts from Wikipedia.

^[4] Dylan & Dylan [2008] FamCAFC 109 at [2].

^[5] A term derived from Boensch v Pascoe [2019] HCA 49; (2019) 375 ALR 15.

^[6] UK: Matrimonial Causes Act 1973, Domicile and Matrimonial Proceedings Act 1973, Matrimonial and Family Proceedings Act 1984, Divorce, Dissolution and Separation Act 2020.

^[7] Australia: s.31 of the Family Law Act 1975. New Zealand: s.38 of the Family Proceedings Act 1980.

^[8] For example, and relevantly, see s.17 of the Fijian Family Law Act 2003.

^[9] Referred to in Salvesen (or Von Lorang) v Austrian Property Administrator [1927] All ER Rep 78.

^[10] CAP. 17.24

^[11] Section 161.

^[12] Footnotes 1 to 3.

^[13] Section 1 of the UK Divorce, Dissolution and Separation Act 2020; s.48 of the Australian Family Law Act 1975, ss 37 and 38 of the New Zealand Family Proceedings Act 1980 and s.2 of the Fijian Family Law Act 2003. However, s.39(3) of the Australian Act refers to ‘the marriage’.

^[14] For example, s.53 of the Australian Family Law Act and s.40 of the Fijian Family Law Act.

^[15] See the Law Reform (Miscellaneous Provisions) Act 1949 s 1(4) (repealed), successively re-enacted as the Matrimonial Causes Act 1950 s 18(2) (repealed); the Matrimonial Causes Act 1965 s 40(2) (repealed); and the Matrimonial Causes Act 1973 s 46(2) (repealed without replacement by the Domicile and Matrimonial Proceedings Act 1973 s 17(2), Sch 6.

^[16] Citing Lord Campbell LC in Brook v Brook [1861] EngR 436; (1861) 11 ER 703

^[17] Applying Brook v Brook, supra. A similar approach was adopted more recently in MM v NA (Declaration as to Marital Status) [2020] EWHC 93 (Fam) (22 January 2020) in which her Honour, Roberts J, considered the difference between formal and essential validity in the context of a Somalian marriage.

^[18] A total divorce of husband and wife, dissolving the marriage tie, and releasing the parties wholly fromtheir matrimonial obligations.

^[19] For example, Lord Advocate v Jaffrey [1921] 1 AC 146; A-G for Alberta v Cook [1926] AC 444.

^[20] Inserted by Act 39 of 1988.

^[21] Similar to that formerly provided by s.46 of the UK Laws of Tonga Matrimonial Causes Act 1973.

^[22] Section 5 of the Domicile and Matrimonial Proceedings Act 1973.

^[23] Council Regulation (EC) No 2201/2003, 27 November 2003.

^[24] Section 31.

^[25] Section 48. For an example of application of those jurisdictional provisions, see Zau & Ruk [2014] FamCA 709 at [8] ff.

^[26] Subsection (f).

^[27] Part II.

^[28] Section 104.

^[29] Section 44.

^[30] Section 103.

^[31] At 476 – 478.