'Onesi v 'Onesi [2021] TOSC 104; FD 59 of 2021 (10 June 2021)

IN THE SUPREME COURT OF TONGA

DIVORCE JURISDICTION

NUKU’ALOFA REGISTRY

FD 59 of 2021

BETWEEN: LUTI ‘ONESI

Petitioner

AND: KALOLAINE ‘ONESI

Respondent

RULING

BEFORE : ACTING JUSTICE LORD TUPOU

Counsels : Ms Fatai Vaihu for the Petitioner
: Ms Fanga Afu for the Respondent

Date of Mention : 27 April 2021

Written Submission
of Petitioner filed on : 19 May 2021

Written Submission
of Respondent filed on : 26 May 2021

Date of Hearing : 4 May 2021

11 May 2021

27 May 2021

Date of Ruling : 10 June 2021

1. This is a petition for divorce by the husband under the provision of Section 3 (1) (f) of the Divorce Act which is opposed and defended by the wife.
   
2. Section 3 (1) (f) is as follows;

“Any husband or wife who is at the time of institution of the suit domiciled in the Kingdom may present a petition to the Supreme Court praying the Court to dissolve the marriage upon evidences.

(f) that the respondent and petitioner have been separated for a continuing period of 2 years or more immediately preceding the prosecution of the petition without both of them maintaining or intending to maintain or renew normal marital relation or co-habitation with each other”.

3. Paragraph 7 of the petition (which was filed on 18 March 2021) stated:

“The parties have separated for a continuous period of two years since October 2018 without either of them intending to resume normal marital relations.”

4. In her response (filed on 20 April 2021) the respondent wife disputed paragraph 7 of the petition. She pleaded that

“1. The petition for a divorce on the ground of separation for 2 years is opposed” and in her affidavit dated 20 April 2021 in support of her response she stated:

“8. That the petitioner was with another woman since October 2018 and we have separated then”.

“15. That I still wish to remain married to the petitioner and want to reconcile and try to make our marriage work for the sake of our children.

5. On 11 May 2021 the case was called for a hearing and Counsel for the respondent informed me that her client was not able to get on the boat from ‘Eua and requested the hearing to be deferred to 27 May 2021.
   
6. With the consent of cancel for the petitioner I adjourned the hearing to 27 May 2021.
   
7. I informed both counsel that I have a case similar to this one which was decided by Scott CJ on 23 July 2013 which is Tevita Tominiko Fakamahua ‘I Vaiola Lemoto v ‘Ilisapesi Veikuna ,FD 17 of 2013 and gave them a copy each.
   
8. I directed both counsel to file written submissions having in mind the Lemoto case before the next hearing.
   
9. Counsel for the respondent state that an application for increase of maintenance has been filed into the Magistrates Court as mentioned in the affidavit of the respondent made on 20 April 2021.
   
10. Both Counsel filed submission as directed.
    
11. When the hearing was called on 27 May 2021, I informed counsels that after reading and considering their submissions and the petition and other documents on file, I have sufficient information to make a decision. I asked them if there is anything else they would like to say or submit and they said no.
    

FACTS

12. The petitioner and the respondent married on 20 December 2011. After the wedding the parties lived in Lapaha, Tongatapu. Now the petitioner live in Puke, Tongatapu and the respondent live in ‘Ohonua, ‘Eua.
    
13. There are 4 children of the marriage, the oldest born in 2012 and the youngest in 2017.
    
14. The petitioner left the respondent in 2018 for another woman. The respondent applied for Maintenance and on 7 March 2019 Magistrate Tu’akalau awarded $80 per week to be paid by the petitioner and on 18 December 2019 Magistrate Tuita increased this to $100 per week.
    
15. In her affidavit of 20 April 2021, the respondent stated;
    

9. That on or about the first week of October 2020, the petitioner came to my parents’ home in ‘Ohonua, ‘Eua and apologized to my parents and said that he wants to come back to our family.

9.1. My parents accepted the petitioner’s apologies, then we reconciled.

9.2. The petitioner and I then resumed normal marital relations and we stayed with our children at my parents’ house.

11. The Petitioner and respondent and their youngest son came to Tonga on 7 October 2020 to sort out maintenance payment by the petitioner.

12. That on 9 October 2020 the petitioner left for work and he never returned home.

16. None of the statements in the previous paragraph 15 have been denied by the petitioner in his reply dated 28 April 2021. He admits (para 12 of the petitioner’s affidavit) that he left for work on 9 October 2020 and not returned since then. He says that the resumption of cohabitation was only for a few days.
    

THE LAW

17. The petition is made under section 3 (1) (f) of the Divorce Act. There are two ingredients to this section –
    
    • (i) That the parties have separated for a continuous period of 2 years, immediately preceding the presentation of the petition, and
    • (ii) Without both of them maintaining or intending to maintain or renew normal marital relations or co-habitation with each other.
      
18. In the Lemoto case Chief Justice Scott found that the petition for divorce under section 3 (1) (f) was filed before the 2 year period. He found however that the petitioner had in fact deserted the respondent but as he was the person who made the desertion, he cannot bring the action, because
    

“[14] 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”.

19. In addition to this, section 3 (2) states –
    

“[2]. In calculating the continuous period for which –

(a). the respondent has deserted the petitioner for the purpose of section 3 (1)(c); or

(b). the parties to a marriage have been separated for the purpose of section 3 (1) (f), no account shall be taken of any one period (not exceeding 3 months) during which the parties resumed cohabitation with a view to reconciliation; but no such period shall count as part of the period of desertion or the period for which the parties have been separated.

DISCUSSIONS

20. In this case, the parties separated in October 2018 when the petitioner left the respondent.
    
21. There was no reconciliation or co-habitation until early October 2020 when the petitioner went to the home of the respondent’s parents in ‘Eua where she was residing with the children and apologized. The apology was accepted and the parties reconciled and lived together as man and wife. They came to Tonga on 7 October 2020 but on 9 October 2020 the petitioner left the respondent until now.
    
22. In the petition, the petitioner stated;

“[7] that the parties have separated for a continuous period of 2 years since October 2018 without either one of them intending to resume normal marital relations”.

23. It is noted that the words “without either one of them” has been inserted in place of the words “without both of them” in section 3 (1) (f) of the Act. Both wording mean the same. The separation must be consensual.
    
24. In her submissions, Counsel for the petitioner stated that the meaning of section 3(1) (f) is that only one of the parties is required to agree for a divorce and in this case it is the petitioner.
    
25. With due respect, I do not accept the interpretation made by Counsel for the petitioner. The Act is clear that the separation for 2 years has been made without both intending to maintain or renew normal marital relations. If one of the parties still has the intention to maintain or renew marital relations, then section 3 (1) (f) has not been complied with and the petition must fail.
    
26. For completeness, I refer to section 3 (2) quoted above which was referred to and given submissions by both Counsel. I interpret the meaning of that section as follows; -
    

When calculating the continuous period for desertion or separation for 2 years no account shall be taken for any period less than 3 months when the parties resumed co-habitation with a view to reconciliation. In other words, such a period will not be deemed to have broken the continuous period of 2 years. However, such period shall not be counted as part of the 2 years separation or desertion.

27. In this case, the petition was presented on 27 March 2021. This is well over 2 years since the separation in October 2018. The short period of reconciliation in October 2020 does not break the continuous period by that period (a number of days) but cannot be included in the continuous period of 2 years.
    
28. Finally, in her submissions [23] counsel for the respondent withdraws her application for an increase in maintenance and will continue this application in the Magistrate Court.
    

RESULT

29. I find that the petition for divorce on the ground of 2 years’ separation under section 3 (1) (f) if the Divorce Act is opposed by the respondent who wishes to continue marital relations for the sake of the children and make the following order;
    
30. The petition is dismissed.
    

Tupou J
NUKU’ALOFA: 10 June s 2021 ACTING JUDGE