L v L [1994] WSCA 3; 21 1993 (28 March 1994)

IN THE COURT OF APPEAL OF WESTERN SAMOA

HELD AT APIA

C.A. 21/93

IN THE MATTER of an appeal under Section 36(2) of the Divorce and Matrimonial Causes Ordinance 1961 and Regulation 14 of The Divorce and Matrimonial Causes (Procedure) Rules 1980

BETWEEN:

L
Appellant

AND:

L
Respondent

Coram: The Rt. Hon. Sir Robin Cooke. (President); The Rt Hon. Sir Cordon Bisson; The Hon. Sir John Jeffries

Hearing: 24 March 1994
Judgment. 28 March 1994

Counsel: T. Malifa for Appellant - P. Fepulea'i for Respondent

JUDGMENT OF THE COURT
DELIVERED BY SIR ROBIN COOKE

The husband appeals from a decision of Sapolu C.J. delivered on 29 November 1993, dismissing the husband's petition for a decree of judicial separation and for an order that the wife vacate "the home and house of the Petitioner she is occupying the same not being a matrimonial home". The words just quoted are taken from the prayer for relief in the petition.

The parties were married in 10 September 1990 in Suva, Fiji, the husband being then aged 50 years and the wife being then aged 41 years. The husband is a Western Samoan citizen and the wife is a Rotuman and a citizen of Fiji. They were both previously unmarried and had met in 1987 at the Catholic Pacific Seminary in Suva. In October 1990 they came to Western Samoa to live. The husband sponsored the wife: that is to say, as we understand it, he guaranteed to the Government of Western Samoa to pay any cost incurred by it by way of maintenance, hospitalisation, burial or transfer (to a place outside Western Samoa) expenses for the wife.

At first they live in Western Samoa with the husband's family. Early in 1991 they moved to live together in a house at Palisi near Apia. The house was and is owned by the husband, having been built by him on land owned by him in or about 1983-4. He had bought the land from the Catholic Mission in 1981, when he was a priest. At first both were unemployed and lived mainly on the husband's savings and assistance from his family. The wife did most of the usual household work. The husband played golf almost every day. About the beginning of 1991 the wife found casual work with Morris Hedstrom (Samoa) Limited: her wages were used for the support of the parties. Later that year she became employed as a senior shorthand typist by the Public Service Commission. Part of her wages continued to be used for their common support. The husband, however, is said in the judgment under appeal to have been paying most of the household expenses, although still unemployed. Apparently he had some casual work as a taxi driver. More recently he has obtained public service employment.

In 1992 the marriage deteriorated. There are allegations by the wife of heavy drinking and late hours on the part of the husband. There were quarrels and fights in which she alleges he used violence on her. Then the wife learnt, and the Chief Justice found that it was from members of the husband's family, that he was rumoured to be having affair with one of his nieces. When the wife put this to her husband, he denied it and according to her, became angry and violent. But the niece came from New Zealand and stayed in the house on New Year's Eve, and an incident occurred which strengthened the wife's suspicions. Thereafter relations between the parties continued to deteriorate. Violence occurred from time to time and on the Chief Justice's findings, it was committed overwhelmingly by the husband and included on one occasion beating her severely with the leg of a coffee table.

The wife left the house for about two weeks but returned. Ultimately the husband left on 6 May 1993 and commenced living in the house of another woman with whom he apparently had some prior association and later formed a sexual partnership. We need not detail the facts further; a fuller account will be found in the judgment of the Court below. The husband's petition was filed in the Supreme Court in 1993.

In Western Samoa the subjects of judicial separation and divorce are governed by the Divorce and Matrimonial Causes Ordinance 1961. The Ordinance follows a pattern formerly familiar in Commonwealth countries in that there are limited grounds on which decrees may be made. It does not contain any general ground for dissolution of marriage such as that the marriage has irretrievably broken down. In the course of his argument in this Court counsel for the appellant said that, in the eyes of Western Samoan law, marriage is regarded as sacred institution. The retention of the older-style legislation is consistent with this.

THE REFUSAL OF JUDICIAL SEPARATION

By s.4 of the ordinance the only grounds for judicial separation are cruelty or adultery or desertion without just cause for not less than two years. The husband here relies on cruelty, the contention for him is that an allegation of incest is particularly grave in Western Samoa and that the wife was cruel in making such allegations against him and in spreading rumours to the same effect and even in entertaining in her own mind the thought that he had or may have committed incest.

There can be no doubt that such an accusation is very serious and that it could well be especially damaging in Samoa by bringing disgrace upon the person accused. Circumstances can be imagined when the false spreading of rumours of this kind could amount to cruelty, which is a wide and flexible concept, as illustrated by the leading authorities cited for the appellant, such as King v King [1952] 2 All E.R. 584 but everything turns on the particular facts. Much can depend on a trial Judge's assessment of the witnesses. In the present case the Chief Justice had the advantage of seeing and hearing a number of witnesses, including not only the husband and the wife themselves, but also the niece, a cousin called for the husband (whose testimony nevertheless seems to have been more helpful to the wife) and other more independent witnesses. On matters of credibility he expressly preferred the evidence of and for the wife. He found that the wife had not spread rumours about the husband among his family but may have raised the subject with the husband's brother as well as with the husband himself. Clearly, in the particular circumstances, the wife cannot be criticised for so raising it. Although the evidence does not go as far as to justify a finding of incest, she did have cause for suspicion or concern.

The Chief Justice gave as his reason for dismissing the petition for judicial separation that he was not satisfied that the husband had made out the ground of cruelty alleged. That was a moderate and restrained way of expressing his conclusion on the evidence. He approached the case properly on the correct principles and was well entitled to make all the findings contained in his judgment. The appeal from that part of his judgment is baseless and must fail.

OCCUPATION OF THE MATRIMONIAL HOME

The importance of this case is said to lie in the circumstance that rights of occupation of the matrimonial home are a new area for the law of Western Samoa. There is no legislation in this country defining a matrimonial home or providing for division of matrimonial property on lines similar to those of the Matrimonial Property Act 1976 in New Zealand. Questions under this head fall to be dealt with under what is referred to in the definition of 'law' in the Constitution of the Independent State of Western Samoa s.111(1) as 'the English common law and equity for the time being insofar as they are not excluded by any other law in force in Western Samoa.'

We agree with the opinion of St. John C.J. in Opeloge v Police (Misc. 550: Crim. No. M5092/80) that, as he put it, in the foregoing definition 'the adjective English is descriptive of a system and body of law which originated in England and is not descriptive of the courts which declare such law. Thus, in determining the common law applicable in Western Samoa, the courts of this country are free to draw on decisions in common law jurisdictions other than England itself, although English precedents will always be among the primary sources. Where, for instance, there are differences of approach in the other jurisdictions, the Western Samoan Courts will select or evolve the solution which they adjudge to be most suitable for the society of Western Samoa. Indeed, in no case can any overseas decision be an absolutely binding precedent for the Western Samoan courts, but decisions of overseas national appellate courts are likely to have especial persuasive force and obviously unanimity of opinion among the jurisdictions would be very telling.

We also agree with St John C.J. that, to quote again his own words. 'It would seem ... a distortion of constitutional interpretation to hold that atrophied areas of law be preferred to those which have continued to fulfil the essential characteristics of the common law system- adaptation to changing conditions of society'. Counsel for the appellant, Mr Malifa, rightly disclaimed any contention that the common law to be applied in Western Samoa should be treated as static as at Independence Day, 1 January 1962. There is room for continued development of the common law in this country. The judgment of Sapolu C J now under appeal is fully in harmony with all that we have already said.

It happens, however, that the instant case can be disposed of on traditional English common law and equitable principles without modification or development. That is because the issue is solely between husband and wife. As pointed out by Sapolu C.J. third party rights do not arise for consideration. Nor, in the issue between her husband and herself, is the wife asserting any property rights by way of trust or otherwise. Her counsel, Mr Fepulea'i, records in his written submissions 'The wife is not claiming any equity in the matrimonial home but merely asserting her right of occupation while the marriage subsists'. For the reasons which follow we consider that as against the husband, she does have a present right of occupation and that in the absence of a material change of circumstances it may be expected to continue while the marriage subsists.

National Provincial Bank Ltd. v Ainsworth [1956] All ER 472 in the House of Lords was a contest between the subsequent mortgagee of a husband and a deserted wife who had remained living in the matrimonial home The actual decision in that case, which was in favour of the mortgagee, is therefore not in point in the present case. But all the speeches of their Lordships recognised that a wife may have relevant non-proprietary rights against the husband, even although the home is solely his property. As described by Lord Wilberforce at 494, they may arise as follows:

"The position, then, at the present time, is this. The wife has no specific right against her husband to be provided with any particular house, nor to remain in any particular house. She has a right to cohabitation and support, but, in considering whether the husband should be given possession of a property of his, the court will have regard to the duty of the spouses to each other, and the decision reaches will be based on a consideration of what may be called the matrimonial circumstances. These include such matters as whether the husband can provide alternative accommodation and, if so, whether such accommodation is suitable having regard to the estate and condition of the spouses; whether the husband's conduct amounts to desertion, whether the conduct of the wife has been such as to deprive her of any of her rights against the husband. The order to be made must be fashioned accordingly; it may be that the wife should leave immediately or after a certain period: it may be subject to revision on a change of circumstances.

The conclusion emerges to my mind very clearly from this that the wife's rights, as regards the occupation of her husband's property, are essentially of a personal kind: personal in the sense that a decision can only be reached on the basis of considerations essentially dependent on the mutual claims of husband and wife as spouses and as the result of a broad weighing of circumstances and merit. Moreover, these rights are at no time definitive. They are provisional and subject to review at any time according as changes take place in the material circumstance arid conduct of the parties. On any division, then, which is to be made between property rights on the one hand, and personal rights on the other hand, however broad or penumbral the separating band between these two kinds of rights may be, there can be little doubt where the wife's rights fall. Before a right or an interest can be admitted into the category of property, or of a right affecting property, it must be definable, identifiable by third parties, capable in its nature of assumption by third parties, and have some degree of permanence or stability. The wife's right has none of these qualifies: it is characterised by the reverse of them."

Although, under that approach, the wife's rights respecting a home are no more than personal rights against the husband dependent on the matrimonial circumstances, it is important to note that they can be protected by an injunction preventing the husband from dealing with the property with third parties to the prejudice of the wife. See the speech of Lord Hodson in the National Provincial Bank at 477, referring with apparent approval to Lee v Lee [1952] 1 All ER. 1299; Lord Cohen in the same case at 482; Lord Upjohn at 485; Lord Wilberforce at 501. We add that, if the husband were to contrive to alienate or charge the property to the prejudice of the wife, it could well be a breach of his marital obligations to her, for which she would have a remedy in damages or by charging order or otherwise capable of depriving him of the fruits of his dealing.

Against that background we now reproduce the crucial passage in the Chief Justice's reasoning:

"In this case, the petitioner is not seeking a division of the matrimonial properties but is really asking the Court to terminate the respondent's right of occupation of the matrimonial home as the respondent is still residing there and the petitioner who is residing elsewhere, wants to move back into the matrimonial home. As to the conduct of the parties that has already been dealt with in relation to the petition for a decree of judicial separation, which has been dismissed. As to their respective needs, they both need the matrimonial home. As to their financial resources, both are now employed in the public service and the petitioner also operates a taxi. There are no children of the marriage so that consideration does not apply. As for any other relevant circumstances, I think the fact that the respondent is a foreigner in this country without relatives and that she came here because she married the petitioner is a factor that counts in favour of the respondent. There is also the evidence of the petitioner that he cannot afford to provide suitable alternative accommodation for the respondent but the respondent can stay with his family at Matautu-uta who do not speak English. I do not accept this because the respondent speaks only a little bit of Samoan and so it will be very difficult for her to communicate with the petitioner's family. There is also no evidence as to the suitability or otherwise of the house of the petitioner's family for the respondent to live in, especially as the petitioner's family live in the same house. Family in the Samoan sense is more extensive than family in the European sense and includes brothers, sisters, their children and so on. The evidence by the respondent is also that the rent for houses at the Palisi area is about $1000 a month and for the house she is now occupying she estimates the rent to be around $800 a month. With her present salary of $240 per fortnight she cannot afford to rent in another house like her present house. Even if the lowest rent for a suitable house in the Apia area is say $500 a month. That will still be beyond the respondent's present means. The petitioner on the other hand since he left the matrimonial home has been staving with a female friend. Counsel for the petitioner told the Court at the conclusion of the evidence that the petitioner is now living in the house of a male friend. As a local, I think it will be much easier for the petitioner to find alternative accommodation with friends of relatives compared to the respondent who is a foreigner in this country. Weighing all these matters, I am of the view that an order should be made dismissing the petitioner's application but the precise terms of that order will await written submissions or consent of counsel as to the question of any periodical payments made by the respondent to the petitioner for her occupation of the matrimonial home as well as the question of repair and maintenance of the matrimonial home or any other relevant matter. Counsel are allowed seven (7) days to file written submissions on their written consent as to the form of the order in respect of these matters."

We cannot fault that approach. In essence it is a careful application to the matrimonial circumstances of these parties of the kind of considerations shown to be relevant by National Provincial Bank Ltd v Ainsworth. It will also be noted that the Chief Justice has left the question of terms as to occupation rent and repairs and maintenance to be determined by agreement or further order of the court. Those matters remain open. No further submissions have been presented to him. The parties have been exploring the possibility of the provision by the husband of alternative accommodation for the wife, but this is said to be beyond his means. As the circumstances stand, we hold that the Chief Justice's decision allowing the wife to remain in occupation, subject to terms to be settled as aforesaid, is in accordance with principle and unassailable.

Before parting with the case we should not fail to refer to some broader observations made by the Chief Justice. As he pointed out, in England rights of occupation of the matrimonial home, not dependent on property interests or contract or enactment, may now be conferred between spouses under the Matrimonial Homes Act 1967. See generally 22 Halsbury's Laws of England, 4th ed. paragraphs 1057 to 1061. Under this system there is provision for the registration of charges binding third parties. The details are not important for present purposes. The legislation appears to cover much of the field formerly covered by the principles in the National Provincial Bank Ltd case. In effect the Chief Justice applied the English Act by analogy (although, as he noted, he was not concerned with third party rights). Adopting some of its language, he said:

"In my opinion based on English law, a spouse who is not entitled to occupy the matrimonial home by virtue of any estate, interest, contract or statute has the following rights of occupation of the matrimonial home. Firstly if such spouse is in occupation of the matrimonial home, he or she cannot be evicted or excluded from the matrimonial home by the other spouse without an order of this Court. Secondly, if such spouse is not in occupation of the matrimonial home, he or she may occupy the matrimonial home by order or this Court. These rights of occupation continue and may be exercised while the marriage still subsists and they are to be enforced or terminated by making application to this Court. In deciding such an application the Court will of course be guided by what is just and reasonable having regard to the conduct of the spouses, their respective needs and financial resources, the needs of any children and all the relevant circumstances of the case. In making a just and reasonable order the Court may also order the spouse who is given occupation of the matrimonial home or any part thereof to make periodical payments to the other spouse in respect of the accommodation, or impose on either spouse obligations as to the repair and maintenance of the matrimonial home or the discharge of any liabilities in respect of the matrimonial home, or any other order which in the circumstances is just and reasonable. It will be seen that the position I have adopted is essentially and really the modern English position instead of the old English common law position. We have already followed the English law in numerous other respects so the course taken here is not unprecedented."

We are disposed respectfully to query how far the law as so stated by the Chief Justice is significantly different in substance from the former English common law position as between husband and wife: but, to the extent that there may be any differences, we consider that the Chief Justice was entitled. in the absence of any express Western Samoan legislation on the subject, to formulate the relevant common law as he did .Essentially it is a working out or development of the basic common law emerging from the House of Lords decision. Such an evolution is well within the judicial function. Accordingly we endorse his statement of the law to be applied in Western Samoa. Later in his judgment he emphasized the great variety of matrimonial circumstances and the unwisdom of laying down fixed rules: with this we likewise agree.

For these reasons the appeal is dismissed, but as the case was very much a test one there will be no order for costs.