Romain v Neprei [2009] VUSC 121; Matrimonial Case 01 of 2008 (18 September 2009)

IN THE SUPREME COURT OF
THE REPUBLIC OF VANUATU
(MATRIMONIAL JURISDICTION)

Matrimonial Case No. 01 of 2008

BETWEEN:

COLETTE TOA ROMAIN
Petitioner

AND:

WILLIAM NEPREI
Respondent

AND:

KALI
First Co-Respondent

AND:

GILBERT
Second Co-Respondent

Mr Justice Oliver A. Saksak
Mrs Anita Vinabit – Clerk

Mrs Marisan P. Vire for the Petitioner and Co-Respondents
The Respondent and Counter-Petitioner in person unrepresented

Date of Hearing: 18th August 2009
Date of Judgment: 18th September 2009

JUDGMENT

1. The Petitioner and the respondent are husband and wife having lawfully married on 28th August 1996. They lived together both in Vila and Santo and have had three children namely Michelline (21 years), Marie Chane (10 years) and Mohana Jeffrey (8 years).

2. The respondent has a daughter born out of wedlock by the name of Katanak Neprei who also lived with them at their home in Banban area, Santo.

3. The respondent had extra-marital affairs with his daughter in or about 2003 while she was living with him at their home at Banban area. As a result of this extra-marital affairs, Katanak was pregnant and has given birth to a child. The incident was reported to the Police by the petitioner. The police investigated and charged the respondent with unlawful sexual intercourse and with incest. He was found guilty by the Court and sentenced to 5 years imprisonment. After having served up to half of the 5 years term, the respondent applied and was released on parole on 13th February 2008.

4. On 8th February 2008, the petitioner filed her petition seeking for a dissolution of marriage and for the custody of the children of the said marriage.

5. The main grounds for seeking a dissolution of marriage is adultery.

6. The respondent does not deny that he had extra-marital affairs with his daughter and that he was charged, convicted and imprisoned. He does however claim that there has been connivance or condonation on the part of the petitioner and further claims there has been collusion existing between them. He however counter-claimed against the petitioner alleging adultery between her and one Kali and Gilbert Meltenoven. He filed an amended counter-petition on 29th June 2009 joining Kali and Gilbert as co-respondents. He alleges the adulterous relationships of the petitioner contributed to the breakdown of their marriage. He sought damages against the co-respondents in the sum of VT500.000 each with interests of 5% and for costs.

7. The petitioner and co-respondents filed their responses admitting adulterous affairs since 2006 through 2009. The only explanation given was that it was the respondent who initially started to cause the breakdown of their marriage by committing adultery with his daughter.

8. At the hearing on 18th August 2009, the co-respondents Kali and Gilbert and the Petitioner were not available in Court. On close examination of all the evidence before the Court there were admissions by all parties and facts were not in dispute. It was a matter of making legal submissions and the Court allowed 14 days to each party. As at 3rd September 2009, only the respondent and counter-petitioner had filed his written submissions.

9. The respondent posed two issues in his written submissions as follows-

(a) Whether or not the Petitioner can rely on the respondent's criminal convictions as the ground for dissolution of their marriage; and

(b) Whether or not the actions of the Petitioner to commit adultery with the co-respondents can lead to a dissolution of marriage.

These can be better framed as follows –

(a) Whether the respondent committed adultery by having extra-marital affairs with his daughter?

(b) Whether the Petitioner committed adultery by having extra-marital affairs with the two named co-respondents?

(c) As a result of these extra-marital affairs, has this marriage irretrievably broken down?

10. The relevant legal provisions are Sections 5(a)(i), Section 8 and Section 9 of the Matrimonial Causes Act Cap 192.

Section 5(a)(i) states –

"Subject to the provisions of Section 6, a petition for divorce may be presented to the Court either by the husband or the wife –

(a) on the ground of that the respondent –

• (i) has since the celebration of the marriage committed adultery."
  

Section 8 of the Act states –

"Where adultery is alleged in a petition or by a respondent, the petitioner or respondent as the case may be shall make the alleged adulterer a co-respondent unless he or she is excused by the Court on special grounds from doing so."

Section 9(2) states –

"On the hearing of a petition for divorce is shall be duty of the Court inquire so far as it reasonably can, into the facts alleged and whether there has been any connivance or con donation on the part of the petitioner and whether any collusion exists between the parties, and also the inquire into any counter charge which is made against the petitioner."

Section 9(3) states –

"If the Court is satisfied on the evidence that –

(a) the case for the petitioner has been proved; and

(b) where the ground for the petition is adultery, the petitioner has not in any manner been accessory to, or connived at, or condoned the adultery, or............................

(c) the petition is not presented or prosecuted in collusion with the respondent or either of the respondents, the Court shall pronounce a decree of divorce, but if the Court is not satisfied with respect to any of the aforesaid matters, it shall dismiss the petition."

11. Applying the law to the facts firstly in respect of the petitioner's case –

1. The respondent admitted having extra-marital affairs with his daughter in 2003 for which he was charged and convicted and sentenced to imprisonment. He argued this did not amount to adultery. The Court disagrees with him on that point. Adultery is usually defined as voluntary sexual intercourse between a married person and someone who is not their legal partner.
   

The petitioner has clearly proven that the respondent committed adultery with Katanak. She however has not proven that the respondent committed adultery with other women.

2. Despite this clear admission, the respondent has shown to the Court's satisfaction that the petitioner has connived at or condoned the action of the respondent by continuing to live with him until his incarceration in 2005 and thereafter by visiting him in jail until 2006.
   

12. Secondly, in respect of the counter-petition –

1. The respondent and counter-petitioner has shown to the satisfaction of the Court that the petitioner has also committed extra-marital affairs with the two co-respondents Kali and Gilbert. These affairs also amount to adultery and show a collusion exists between these parties.
   
2. The petitioner has persistently refused the respondents' attempts to reconcile and make good their marriage.
   

100. The petitioner has used the one-off incident of the co-respondent as an excuse for her to indulge in extra-marital affairs and thinks that by doing so she can have valid reason to seek a dissolution of their marriage. She has come to Court with dirty hands.
     

13. The Court is not satisfied that this marriage has irretrievably broken down to warrant a dissolution. Both the petitioner and the respondent must make extra efforts to put their marriage back in order.

14. The Petition of the petitioner is therefore dismissed. There will be no costs against the petitioner.

15. The respondent succeeds in his counter-petition against the petitioner and the two co-respondents Kali and Gilbert. He has judgment in his favour against Kali and Gilbert for damages. His claims are reduced to VT100,000 against Kali and VT100,000 against Gilbert, a total of VT200,000.

There will be no interests allowed and there will be no costs.

16. That is the judgment of the Court.

DATED at Luganville this 18th day of September 2009.

BY THE COURT

OLIVER A. SAKSAK
Judge