p class="MsoNormal"rmal" align="center" style="text-align: center; margin-top: 1; margin-bottom: 1">
HIGH COURT OF SOLOMON
ISLANDS
Civil Case No. 094 of 2001
SILAS
CHAN
(Alias Chan Chee Yan)
v
PEGGY
(Alia Koo Yee Ing)
Hourt of Solomon Islands
Before: F.
O. Kabui, J
Civil Case No: 094 of 2001
Hearing 27th July
2001
Judgment: 30th July
2001
C. Ashley for the Petitioner
A. Nori for the Respondent
JUDGMENT
:
This is a Petitionition for dissolution of marriage filed by the Petitioner on 22nd
May 2001. The Petitioner and the Respondent were married in Gizo on 16th
June 1980. The marriage was celebrated in the District Office in Gizo under
the Pacific Islands Marriage Order in Council
1907. It was a civil marriage
in the sense that it was not celebrated by a Minister of religion. It is a
valid marriage.
The parties lived in Gizo until sometime in 1992, when they
moved to Honiara to do business. There are three children of the
marriage.
They are Kamus Chan born on 13th March 1981, Sandra Chan born on
27th October 1984 and Terrence Chan born on 27th
October 1986. The Co-respondent in 1992 was the accountant for the family
business. As such, he became well-known in
the family. In fact, the
petitioner treated the Co-respondent as his brother. He did not realize that
the Co-respondent
was interested in his wife, the Respondent. The Petitioner
found out the worst in 1993. He caught his wife and the Co-respondent
in the
Petitioner�s shop in China town. He confronted the Respondent and she
admitted to him having committed adultery
with the Co-respondent. In fact,
the Respondent and Co-respondent had been having affairs for about a year
already before
they were discovered by the Petitioner. The Petitioner told
the Respondent to go to Australia. The Petitioner kept silence
over his
wife�s unfaithfulness for two years and than told the members of his family
about it. In about 1994 or there
about, he began living with another woman
and has not since lived with the respondent. He has two children of that
union.
A formal separation agreement was executed by the parties on 3rd
August 1999.
Adultery by the Respondent
lass=lass="MsoNormal" style="margin-top: 1; margin-bottom: 1">
There is no ece of
condonation nor connivance or collusion on the part of the Petitioner. In
fact, the Respondent
admitted adultery by consenting to the Petitioner to
proceed without opposition on her part. I find that the Respondent did
commit adultery with the Co-respondent as alleged in the Petition.
Adultery by the Petitioner
>
Ady committed by the
Petitioner should be admitted by way of a discretionary statement.ment. A
discretionary statement
is always in a written form supported by oral
evidence in Court. In this case however, paragraph 4 of the Petition bears
out admission of his adultery supported by his sworn evidence. Whilst this
paragraph is not a discretionary statement in
the strict sense, I would take
it as one on the basis that this Petition is unopposed. This however must
not be taken
as sanctioning deviation from the proper practice of filing
discretionary statements in divorce cases. In exercising the discretion
of
whether to grant a decree nisi or not, the judgment by Sir Jocelyn Simon, P.
in Bull v Bull (Queen�s Proctor showing cause) [1965] 1 A.E.R.
1057 is the relevant authority in this regard. At pages 1062 - 1064 of his
judgment, Sir Jocelyn Simon said-
class="Mso="MsoNormal" style="margin-left: 28.8pt; margin-top: 1; margin-bottom: 1">
�...I have had a helpful
review by counsel for both parties of the factors which are to borne in mind
by the court in
exercising the discretion vested in it by the legislature. I
think that these factors fall into three categories. First, factors
relating
to the interests of the persons directly or indirectly affected by the suit.
Secondly, all other relevant factors
relating to the married life of the
parties. In both of those categories the interests of the community may be
affected.
The interests of the community are also affected in the
administration of justice: this gives rise to a number of other factors
which fall for consideration and weighing; and these constitute the third
category.
I consider initially the
factors relato the interests of the pers persons directly or indirectly
affected by the suit:
(i) ;&nbsether, if t if the
e
marriage is not dist dissolved, there is a reasonable prospect of reconciliation
between
the petitioner and the respondent.
(iii) The inteof th
part part party with whom the petitioner has been guilty of adultery, with special
regard to their
re-marriage.
(iv) The interesthe
petitpetitionitioner, and in particular the interest that the petitioner should be
able to remarry
and live respectably.
Those four considerations
are authoritatively established by the speech of VISCOUNT SUNT SIMONS, L.C., in
Blunt v. Blunt,
with which the other learned law lords agreed.
(v) &bsp; ;&nbpp; The interest of
f
any children born of the adulterous connexion between the petitioner and the
person with whom he or she committed adultery.
class=lass="MsoNormal" style="text-indent: -36.0pt; margin-left: 72.0pt; margin-top: 1; margin-bottom: 1">
(vi)   interest of
any any children born of any adulterous connexion formed by the respondent.
1">
<These two further
siderations appear from m Rudman v. Rudman and Lee (Queen's Proctor
sowing cause).
Those then are the factors relating to the interests of the persons directly
or indirectly affected by the suit.
Goldsmith v. Goldsmith
if not other authority, establishes that all other relevant factors relating
to the married life of the parties are also
for consideration in determining
how the discretion should be exercised. So-
(vii)
Was the petitioner
or the respo the more responsible
p;&nssp;  for the break-up of their marriage?
(viii) What was nature of
the misconduct which necessitates the prayer for discretionary relief? Was
it, for example,
with more than one man or woman? Was it promiscuous? Were
there mitigating or aggravating circumstances?
(ix) Was the pa seeking disg disc discretionary relief partly, and if so to what extent, responsible
for the break-up
of any other marriage?
span lang="EN-GB" style="font-size: 12.0pt">(x) Whs theraene l
l
conduct otherwise of the party, seeking
discretionary relief, for example,
his or her conduct towards the children?
(xi) On the successful
intervention of the Queen of the Queen�s Proctor, would the court have been
likely to have exercised
discretion in favour of the party seeking the
etionelief if the facts now known had been before it o it on then the
original
hearing?
I think that all the foregoing
factors are summed up in what LORD SIMON stated
as a primary or over-riding consideration-namely, the interest of the
community at large judged by maintaining a true
balance between respect for
the binding sanctity of marriage on the one hand and the social
considerations which make
it contrary to public policy to insist on the
maintenance of a union which has utterly broken down on the other. That
balance is, of course, not held by giving exclusive weight to the second
limb. It is virtue of the first limb that the court
is bound to weigh, among
other factors, whether a party seeking discretionary relief was in any way
responsible for the
break-up of any other marriage.
I turn to the third category of
factors, which may perhaps be summed up in the statement that it is in the
public interest
that matrimonial relief should be granted on the basis of
complete candour ad truthfulness on the part of the party seeking
relief:
see the cases cited in Rudman v. Rudman and Lee (Queen�s Proctor
showing cause;
Blunt v. Blunt;
White v.White (Queen�s Proctor showing cause);
Goldsmith v. Goldsmith;
Rowley v. Rowley and Austin and French (Cooper intervention);
Some of these factors relating to the administration of justice are
particularly relevant on a successful intervention
of the Queen�s Proctor.
Then �
(xii) were the
r reasoneasons for the original, or indeed any subsequent, non-disclosure of
adultery by the party
seeking discretionary relief? (see Cronin v. Cronin
and Jon>
.
class=lass="MsoNormal" style="text-indent: -36.0pt; margin-left: 72.0pt; margin-top: 1; margin-bottom: 1">
(xv) Is the court
finalli satisfied that it has been told the whole truth by the party seeking
discretionary relief,
especially with regard to the course of adulte m it nary ty for discretionary relief?span><
/p>
Or, on the other hand:
(xv) ;&nbssp; Is the the court ourt
satisfied that adultery, or further adultery, has been committed as to which
a denial
on oath has been maintained ...?
p class="Mso="MsoNormal" style="margin-top: 1; margin-bottom: 1">
In this case, the petitioner
was not at fault for the break-down of his marriage. Perhaps, the Respondent
was not totally
at fault also. I say this because, the Petitioner said in
evidence, that he had regarded the Co-respondent as his brother obviously
a
relationship brought about by business convenience of all the parties. Human
frailty had obviously set in and the wife
committed adultery with the
Co-respondent a number of times. This illicit relationship was subsequently
discovered by
chance and the wife admitted it then and in Court through her
Counsel, Mr. Nori.
The Petitioner kept it a secret
until 2 years later when he had to reveal it to the members of his family.
The Petitioner
said there had been attempts to reconcile but on his part he
could not accept it because the Co-respondent is also a resident
of Honiara.
I can understand his feeling. He then decided to find another woman and did
so about 1994 or there about.
He now lives with that woman as man and wife.
There are now 2 children of that union. The separation Agreement executed on
3rd August 1999 seals the relationship between the parties in
terms of settlement of property, custody and access etc, until divorce
proceedings are instituted. There is clearly no chance of the parties going
back to each other. The link that held them
together had snapped and is
clearly beyond repair. The case for the burial of the old marriage is
clearly in favour of
the Petitioner. There is no longer any point in keeping
a marriage that is already dead for the sake of appeasing the community
or
the relatives. Let it be buried and be forgotten. I bury it accordingly and
in so doing hereby pronounce that the
marriage between the Petitioner and
the Respondent be dissolved. Matters of ancillary relief have been
settled
out of Court by the Separation
Agreement dated 3rd August 1999. I do not wish to make any formal
orders in respect of them.
F.Oui
Judge
PacLII:
Copyright Policy
|
Disclaimers
|
Privacy Policy
|
Feedback
URL: http://www.paclii.org/sb/cases/SBHC/2001/51.html
