S v L [2015] WSSC 178 (29 October 2015)

SUPREME COURT OF SAMOA
S v L [2015] WSSC 178

Case name:	S v L
Citation:	[2015] WSSC 178
Decision date:	29 October 2015
Parties:	S of Solosolo, government employee.Applicant A N D L of Vailima, retiree Respondent
Hearing date(s):	23 October 2015
File number(s):	Misc 691/14
Jurisdiction:	CIVIL
Place of delivery:	Supreme Court of Samoa, Mulinuu
Judge(s):	Chief Justice Sapolu
On appeal from:
Order:	- For the foregoing reasons, I answer the question of law in the case stated as follows: the Family Court does not, under our existing legislations, have jurisdiction to hear and determine an application for alimony filed after divorce proceedings have been concluded.
Representation:	P A Fepulea’i for applicant M Betham-Annandale for respondent
Catchwords:	alimony pendente lite – alimonia- interim alimony - claim for maintenance
Words and phrases:	application for alimony after divorce proceedings have been concluded - an order for maintenance in terms of (that section) where there are proceedings for a decree of divorce
Legislation cited:	Family Court Act 2014 s.13 (1) Divorce and Matrimonial Causes Act 1908 (NZ) Divorce and Matrimonial Causes Ordinance 1961 s.22
	Maintenance and Affiliation Act 1967
Cases cited:	Arp v Arp [2008] WSSC 35 Jeffery v Jeffery [1949] HCA 28 Lodder v Lodder [1923] NZLR 785; 788,
Summary of decision:

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

Misc 691/14

IN THE MATTER
of the Divorce and Matrimonial Causes Ordinance 1961 Part III

BETWEEN
S of Solosolo, government employee.

Applicant

A N D
L of Vailima, retiree.

Respondent

Counsel:
P A Fepulea’i for applicant
M Betham-Annandale for respondent

Hearing: 23 October 2015

Judgment: 29 October 2015

JUDGMENT OF SAPOLU CJ

Proceedings

1. Under s.13 (1) of the Family Court Act 2014, the Family Court may, on application or on its own motion, state a case for the opinion of the Supreme Court on any question of law arising in a matter before the Family Court. In these proceedings, this Court is required to deal with a question of law by way of case stated from the Family Court pursuant to s.13 (1). The question of law is whether the Family Court was right that it has jurisdiction to hear and determine an application for alimony after divorce proceedings have been concluded.

Relevant background

2. The applicant and the respondent in these proceedings were married as husband and wife. Their marriage was dissolved in the Family Court on 3 March 2014. On 31 July 2014, the respondent filed a claim for alimony for the duration of her lifetime. On 21 August 2014, the claim for alimony was referred to mediation on the suggestion of counsel for the applicant. Mediation was held on 9 October 2014 and the parties arrived at a partial mediated agreement whereby the applicant agreed to pay alimony but reserved his position on quantum until he had spoken further to his lawyer.
3. On 21 November 2014, counsel for the applicant filed a motion to strike out the respondent’s claim for alimony. Essentially what was claimed in the strike out motion was that the Family Court does not have jurisdiction to grant a claim for alimony filed after the dissolution of the marriage. On 9 December 2014 the learned Family Court Judge heard and dismissed the strike out motion. On 11 March 2015 the Family Court heard the respondent’s claim for alimony in respect of the question of quantum and on 17 April 2015 and awarded alimony to the respondent of $1,000 a month for a period of six months. On 16 June 2015 the applicant applied to the Family Court to state a case for the opinion of this Court on a question of law. It is that case stated I am required to deal with in these proceedings.

Alimony

4. The real difficulty in these proceedings stems from the different understandings of the term ‘alimony’ by counsel for the applicant and the respondent. This is understandable as ‘alimony’ is an old term that is seldom used nowadays. Perhaps, it is time that it should be omitted from our family law statutes. Anyhow, counsel for the applicant understands alimony to mean interim alimony or alimony pendente lite. On the other hand, counsel for the respondent understands alimony to mean the same as maintenance. Counsel for the applicant told this Court that these were the respective understandings of the term ‘alimony’ by counsel when this matter was before the Family Court.
5. As I have said, ‘alimony’ is an old term. It was derived from the Latin word ‘alimonia’. It is to be found in some of the old New Zealand family law statutes some of which we adopted in Samoa and form part of our statutory law. In the New Zealand case of Lodder v Lodder [1923] NZLR 785; 788, Salmond J when dealing with a claim for maintenance under the Divorce and Matrimonial Causes Act 1908 (NZ) said:
   • “It is necessary in the first place to distinguish between alimony and maintenance. Alimony, properly so called, is the provision made by a husband for his wife while the marriage relation continues to exist. It is either interim or permanent alimony. Interim alimony is the provision made pendente lite, whether in a suit for divorce, judicial separation or otherwise. Permanent alimony is the provision made after a decree of judicial separation, the parties still remaining husband and wife. Maintenance, on the other hand, as opposed to alimony, is the provision made by a man for a woman who was formerly his wife, but who has ceased to be so by reason of a decree of dissolution”
6. It appears from Lodder v Lodder [1923] NZLR 785, 788, that the term alimony is not restricted in meaning to interim alimony but also includes permanent alimony. It also appears that the terms alimony and maintenance do not mean the same thing. In the case of Arp v Arp [2008] WSSC 35 cited by counsel for the applicant, this Court dealt briefly with the question of alimony pendente lite and not with permanent alimony or maintenance as permanent alimony and maintenance were not in issue in that case.
7. In Arp v Arp [2008] WSSC 35, [87], I referred to Jeffery v Jeffery [1949] HCA 28 where Latham CJ said in para 6 of his judgment:
   • “Alimony pendente lite is a provision for the proper maintenance of the wife during the pendency of the suit. Marriage continues up to the pronouncement of a decree absolute (see Brown v Walters [1931] HCA 45; (1931) 46 CLR 290). Accordingly, an order can be made in respect of the period between service of petition and order absolute”
8. I also referred in Arp v Arp at [88] to the judgment of Dixon J in Jeffery v Jeffery [1949] HCA 28, where His Honour said:
   • “[The] purpose of alimony pendente lite was to provide for the wife’s maintenance during the progress of the suit...”

Relevant statutory provisions

9. Section 22 of our Divorce and Matrimonial Causes Ordinance 1961 relevantly provides:
   • “(1) In any proceedings for a decree of divorce or nullity of marriage, the Court may make such orders as it considers appropriate for the provision of alimony and maintenance and the Court may for that purpose order that it shall be referred to the Registrar to settle and approve a proper deed or instrument, to be executed by all the necessary parties, and may, if it thinks fit, suspend the pronouncing of the decree until the deed or instrument has been duly executed.
   • “(2)...
   • “(3) On any petition for divorce or nullity of marriage the Court shall have the same power to make interim orders for the payment of money by way of alimony or otherwise to the wife as the Court has in proceedings for judicial separation.
   • “(4)...”
10. Section 26 of our Maintenance and Affiliation Act 1967 then relevantly provides:
    • “(1)...
    • “(2) Nothing in this section shall affect the power of the Supreme Court to make an interim or final order for maintenance or alimony.
    • “(3) Any maintenance order to which subsection (1) of this section applies shall be deemed to be suspended while there is an interim order of the supreme Court for alimony or maintenance relating to the same parties and shall be deemed to be cancelled by a final order of the Supreme Court for maintenance or alimony relating to the same parties”.
11. The jurisdiction exercised by the Supreme Court in respect of divorce proceedings has now been transferred to the Family Court by virtue of s.8 of the Family Court Act 2014. The point to be noted is that the old distinction between alimony and maintenance under New Zealand law as explained by Salmond J in Lodder v Lodder [1923] NZLR 785, 788 appears to have been continued under our Divorce and Matrimonial Causes Ordinance 1961 and Maintenance and Affiliation Act 1967. That is clear from the use of both terms alimony and maintenance in the 1961 Ordinance and 1947 Act. If the two terms were intended to mean the same thing, then it would have been unnecessary to use both terms, one would be enough. But the fact that the terms alimony and maintenance are both used and the way they are being used in the 1961 Ordinance and 1967 Act clearly suggests that they were not intended to mean the same thing.
12. In addition, the commencing words of s.22 (1) of the Divorce and Matrimonial Causes Ordinance 1961 show that an order for the payment of alimony can only be made “in any proceedings for divorce”. In my view, that means while proceedings in a divorce suit are in subsistence an order for alimony can be made. Once an order is made dissolving the marriage, the “proceedings for divorce” are terminated. The proceedings are no longer in subsistence. An order for alimony cannot be made after that point in time. However, in Arp v Arp [2008] WSSC 35, I referred to Jeffery v Jeffery [1949] HCA 28 where the High Court of Australia held that under the relevant Australian legislation the Court had jurisdiction to make an order for alimony pendente lite after a divorce decree absolute where an application for such alimony was made while divorce proceedings were still pending. This is expressed in the judgment of Williams J where His Honour said:
    • “There are no words in ss.41 or 42 of the [Matrimonial Causes Act 1899 (NSW)] to limit the power of the Court to make orders to the period before decree absolute, and in my opinion the Court has jurisdiction to make an order for alimony pendente lite after decree absolute where the proceedings have commenced before that date. In this way proper effect is given to the principle that the Court will not allow unavoidable delays in litigation to interfere with the rights of the parties”.
13. Counsel for the respondent submitted that I adopt an interpretation that is in line with the provisions of s.70 of the Family Proceedings Act 1980 (NZ) which empower the Court to make a maintenance order after an order dissolving a marriage. I would have been inclined to adopt that interpretation if there was an ambiguity in the wording of s.22 of the Divorce and Matrimonial Causes Ordinance 1961. However, there is no such ambiguity.

Discussion

14. As the marriage of the applicant and the respondent was dissolved on 3 March 2014 and the respondent’s application for alimony was filed on 31 July 2014 five months after the divorce proceedings had terminated, there was no jurisdiction in the Family Court to make an order for alimony whether interim or permanent. Even if the application for alimony is treated as an application for maintenance, the same result will follow because of the wording of s.22 of the Divorce and Matrimonial Causes Ordinance 1961 which provides that the Court may only make an order for maintenance in terms of that section where there are “proceedings for a decree of divorce”. But there were no longer such proceedings by 31 July 2014. This is a hard result for the respondent. Perhaps it is time for our executive and legislative branches to consider whether our law on the maintenance of spouses in divorce proceedings should be reformed. We seem to be still following in our family law statutes old New Zealand law which has been abandoned in that country.
15. I have refrained from expressing any view on the partial mediated agreement between the applicant and the respondent even though counsel for the respondent referred to it. There are two reasons. Firstly, the question of law in the case stated does not refer to the mediated agreement. Secondly, the written submissions of counsel do not address or sufficiently address the question of whether the mediated agreement gives the Family Court jurisdiction to hear and determine an application for alimony filed after the dissolution of the marriage.

Conclusion

16. For the foregoing reasons, I answer the question of law in the case stated as follows: the Family Court does not, under our existing legislations, have jurisdiction to hear and determine an application for alimony filed after divorce proceedings have been concluded.

CHIEF JUSTICE