Maltok v Maltok [2002] VUSC 70; SC 002-02 (4 October 2002)

IN THE SUPREME COURT OF
THE REPUBLIC OF VANUATU
(Matrimonial Jurisdiction)

Matrimonial Case No.2 of 2002

BETWEEN:

JENNY MALTOK
Petitioner

AND:

WILLIAMSON MALTOK
Respondent

AND:

SERAH RELING HOSEA
Co-Respondent

Coram: Mr Justice Oliver A. Saksak
Ms Cynthia Thomas – Clerk

Mr Richard Kalses for the Petitioner
No Appearance for or by the Respondent and Co-Respondent

Date of Hearing: Wednesday 2nd October, 2002.
Date of Judgement: Friday 4th October, 2002.

RESERVED JUDGMENT

This is a petition for divorce on the grounds that the Respondent committed adultery with the Co-Respondent and another woman.

The Petitioner seeks the following Orders that:-

1. The Marriage be dissolved.

2. The period between Decree Nisi and Decree Absolute be abridged.

3. The Respondent be ordered to pay damages.

4. The Petitioner be given custody of all three children.

5. The Respondent pays maintenance for all three children.

6. The Respondent pays the Petitioner’s costs.

The Petition was filed on 16^th April 2002 and made returnable on 10^th July 2002. On that date the Respondent appeared in person. He indicated that his solicitor was Mr Hillary Toa. He sought an adjournment in Mr Toa’s absence. The Court granted an adjournment and issued Directions. The matter was adjourned to Thursday 18^th July 2002. The Respondent was ordered to file an Appearance and affidavits in response within seven days from 10^th July 2002. There was no hearing on 18^th July 2002. And the matter was re-listed for 2^nd October, 2002. Notices of Hearing were issued dated 26^th September, 2002. The Court is informed by the Registrar that the Notices have not been served on the Respondent and the Co-Respondent as both are believed to be living in one of the islands of Torba Province.

Mr Kalses indicated the Petitioner’s instructions to proceed with the hearing. I agreed that the Court would proceed to hear the Petition in the Respondents absence. The Respondent was before the Court on 10^th July 2002 and he knew of the Orders directing him to enter an Appearance and file affidavits to indicate his position on the claims of the Petitioner. It has been some three months since 20^th July 2002 and there is no Appearance and no affidavits. If therefore there is no service of the Notice of Hearing, I think it is because the Respondents are making service difficult by going off to the Torba Province. Accordingly I allowed the hearing to proceed.

The Facts

The Petitioner entered into a lawful marriage contract with the Respondent on 23^rd August, 1990. A Marriage Certificate annexed “A” confirms that fact. They adopted a son by name of Simon Maltok now aged 12 years and who attends the Sarakata Primary School at Class 6. The straight children of that marriage are Ashley Maltok, 11 years attending the same school as Simon at class 6; and Woren Maltok of 8 years now attending at class 2. All these three children live with and are cared for by the Petitioner since 1994 when the Respondent put them out of the matrimonial home. And since 1994 the Respondent started having extra-marital relationships with other women and lost interest in the Petitioner. He now lives with the Co-Respondent.

The Evidence

The Petitioner gave evidence on Oath. She confirmed her affidavit sworn 16^th April 2002 which was taken as read.

She testified of her husband being seen by herself going into another woman’s home and returning early the next morning. She confirmed that the Respondent now is living with the Co-Respondent. The Petitioner is a Registered Nurse working as a senior mid-wife at the Northern District Hospital. She gave evidence that she has been paying the children’s school fees from 1995 as follows –

1995 - Simon Maltok, Kindergarten – VT21.000 whole year at VT7.000 per term.

1996 - Simon and Ashley, Kindergarten – VT42,000 whole year (x2) at VT7.000 per term per child.

1997 - Simon and Ashley, Class 1, VT48,000 whole year (x2) at VT8.000 per term per child.

1998 - Simon and Ashley, Class 2, VT48,000 whole year (x2) at VT8.000 per term per child.

- Woren Maltok, Kindergarten – VT21,000 whole year at VT7,000 per term.

1999 - Simon and Ashley, Class 3, VT48,000 whole year (x2) at VT8.000 per term per child.

Woren Maltok, Kindergarten – VT15,000 whole year at 5.000 per term.

2000 - Simon and Ashley, Class 4, VT48,000 whole year (x2) at VT8.000 per term per child.

Woren Maltok, Kindergarten – VT15,000 whole year at 5.000 per term.

2001 - Simon and Ashley, Class 5, VT26,000 whole year per child (x2) = VT52.000.

Woren, Class 1 = VT26,000 whole year.

2002 - Simon and Ashley, Class 6, VT28,000 whole year per child x2 = VT56,000.

Woren – Class 2, VT28,000 per year.

Her further evidence is that she pays VT6.000 for school bags for all three children, VT3.000 for shoes, VT2.000 for sports apparel, VT15,000 for food, VT3,000 on entertainment, VT2.000 on electricity, VT6.000 on transport, VT3.000 on pocket money, VT1.500 for medical expenses and clothes for VT5.000. These are monthly expenses for all three children. She told the Court that the Respondent has not and has never helped her in paying for any of these items.

Issues:

Based on that evidence Ian asked to consider the following issues:-

(1) Whether or not the Respondent has committed adultery thus rendering this marriage capable of being dissolved absolutely?

(2) On the basis of (1) above whether or not the Petitioner is entitled to damages?

(3) Whether or not the Petitioner is entitled to the custody of all the three children?

(4) Whether or not the Petitioner should be paid maintenance in respect of all three children?

(5) Whether or not the Petitioner is entitled to costs?

Findings

In the light of the evidence presented by the Petitioner in support of the facts which are not challenged, I make the following findings:-

1. In regard to issue No. 1 – I am satisfied on the evidence that the Respondent has committed adultery with the Co-Respondent and another woman.
   

The Law

Adultery is a ground for presenting a petition for divorce under Section 5 (a)(i) of the Matrimonial Causes Act [CAP 192] (the Act). This Petition is filed pursuant to this section and it is not challenged.

2. In regard to Issue No. 2 – I am satisfied that there was a lawful marriage between the Petitioner and the Respondent duly celebrated before a Minister authorised to perform Marriages on 23^rd August 1990.

Marriage is the fulfilment of a contract. Here the Respondent committed adultery which act is not condoned and there has been no connivance. It is clear that the Respondent is now co-habiting with the Co-Respondent. That act is both insulting and injurious to the Petitioner to whom the Respondent on 23^rd August 1990 pledged his faithfulness and love forever “until death do us part”. That contractual promise was broken in 1994 when the Respondent had affairs with other women. For eight (8) years since 1994 the Petitioner has been denied the love, care and support which the Respondent had publicly pledged to her in a church congregation. And four years later without any lawful excuse or cause, the Respondent on his own volition chose to break off that lawful wedlock only to engage in relationships which, in the view of a good majority of the citizens of Vanuatu is not acceptable, being contrary to the Melanesian values and Christian principles which are clearly stipulated in the Preamble of our Constitution as the foundation of this Nation. For these reasons, I view the action of the Respondent as a serious breach of contract.

Under those circumstances the Petitioner is entitled to damages and an Order will issue to that effect. In my view the Petitioner is entitled to damages in the sum of VT600,000 calculated at the rate of VT95.000 per year for eight years.

3. In regard to Issue No.3 relating to custody of all three children, it is commonly accepted that the welfare of the children must be of paramount consideration. The three children have been in the constant care and support of the Petitioner for some twelve years, eleven and eight years.

Therefore their welfare is best cared for by the Petitioner. Accordingly she will be given custody of all three children with some access given to the Respondent at the sole discretion of the Petitioner.

4. In regard to Issue No.4 relating to the payment of maintenance in respect of all three children by the Respondent, it is a perfectly legitimate claim and the Petitioner is entitled to an order to that effect. I have assessed the amount at VT12,000 per month or VT4.000 per month per child, or VT2.000 per child per fortnight, until they all attain the age of 18 years.
   
5. In regard to costs, the Petitioner is entitled to her costs of and incidental to this proceedings.
   

The Orders

The Court issues the following Orders:-

(1) Pursuant to section 12 of the Act a Decree Nisi dissolving the marriage of the Petitioner with the Respondent be and is hereby granted. A Decree Absolute will be issued after three (3) months from today.

(2) The Respondent will pay damages to the Petitioner in the sum of VT600.000. Payments shall be made before 31^st January 2003.

(3) The Petitioner will have custody of all three children namely; Simon Maltok, Ashley Maltok and Woren Maltok but allows reasonable access to the Respondent at her sole discretion.

(4) The Respondent will pay maintenance in respect of all the three children in the sum of VT12.000 per month calculated at the rate of VT4.000 per child per month or VT2.000 per child each fortnight. This payment shall continue until each child has attained the age of 18 years.

(5) The Petitioner and Co-Respondent will pay the Petitioner’s costs of and incidental to this proceedings, to be taxed if not agreed.

DATED at Luganville, this 4th day of October, 2002.

BY THE COURT

OLIVER A. SAKSAK

Judge