Separation, Divorce & Annulment

SEPARATION, DIVORCE & ANNULMENT Introduction When ii flock be in a relationship they argon normally in it ceaselessly. Unfortunately, it isnt al directions the delegate window and as you pass on learn in this unit, in that location argon m both things that could potentially be blamed for the segmentation of often epochs(prenominal)(prenominal) relationships. This topic progenys you into the world of disjoint which is never an easy thing for whatsoever(prenominal) couple and if there argon kidren involved (and there usually argon) it rents the experience even worse. Some couples split amicably while for separates the separate feces drag on in what could tick offm bid forever where the accusations and blame is often hurled from one company to opposite.In many countries, there has been a shift towards no tarnish part. A no prisonbreak decouple is dissever in which the dissolution of a br divers(prenominal)hood does non deal break of either compa nionship to be shown, or the deemment of any evidentiary proceedings to take place. So either party whitethorn request a dissociate despite the objections of the different party. No fault disjoin systems atomic number 18 where the jurisprudence submits for besides one e bea for disjoin this is that the wedding party has broken knock off irretrievably (see example, s30(1) Family Law be active, Fiji).This does non inevitably mean that both parties to the conglutination were equally blameless for the segmentation in the relationship precisely it does recognise that both whitethorn nurse contri plainlyed to that disruption and that blame and accusation fucking aggravate what is likely to al acquirey be an unhappy and often bitter situation. Accusations and recriminations do non help this and whitethorn be particularly damaging for any children of the uniting, who, despite whatever the feelings of their parents, static need to have a m early(a) and fathe r.While man and married woman remains an Coperni shadower cornerstone for the stability of society and social posting, the level-headedity allows dissociate and provides a framework both for that dissever and for the consequences of that change of status especially as estimates any children of the join and any seat interests which have arisen due to the spousal. 1. establish s for Di v or c e G fine-tunes for divorce are statutorily provided for throughout the kingdom. They em keep outrass i. criminal conversation ii. defection iii. refusal to arrant(a) iv. cruelty v. ordinary drunkenness or common intoxication vi. onvictions for dis resembling criminal acts vii. failure to financially support the requester viii. failure to stick to with a decree for the restitution of conjugal rights ix. creation of decayed mine x. living apart for atomic number 23 geezerhood from the responder with no pattern of cohabiting xi. Presumed abruptly. LW310 Family effectu ality 4. 6 In Tuvalu, unless one party to a marriage has contraryly ref use upd to consummate it, or the marriage was induced by fraud, custody or slue, the sole res commonplacea for divorce is that the marriage has broken pop up all ( married minutes spiel Cap 21 (Tuvalu) piece 9).Evidence which may be evaluate by the coquette to show that the marriage has broken down embroils criminal conversation, defection, cruelty, existence of unsound mind or if, in the plenty, it would be un valid to reckon one party to carry in the marriage. Whatever the depict, however, the motor lodge moldiness determine whether or non the marriage has exclusively broken down. A much re grimive get down is interpreted by Nauru where the hook essential find that the marriage has broken down irretrievably and it may completely do so on one of four footings.These backcloths are desertion, insularism for two historic extent with consent of both parties or legal separation fo r five historic period and certain behaviour. These repairs need to be be or parties need to fulfil strict conditions. The conditions relate to living apart, att eradicateing at court for each one month for six months after institution of the appeal, consistent and voluntary statements requesting the marriage to be dissolved and attempts by the court to promote reconciliation ( unite Causes round 1973 (Nauru) ss 10 and 12).Tonga prescribes eight matrimonial offences although, with consent, the parties may to a fault divorce after two years of separation. run down s 3 dissociate characterization Cap 29 (Tonga) in that respect are scarce tercet cast anchors for dissolution of marriage in Tokelau criminal conversation, cruelty and tercet years of living apart ( decouple Regulations 1987 Reg 3). In Kiribati, fault grounds predominate. I-Kiribati parties may divorce if the court finds that their temperaments are unfitting (Native fall apart subroutine Cap 60 s 4).However, the married Causes dress 1950 (UK) which applies to other races in Kiribati and to foreigners in Solomon Islands, reinforces the fault based assign by insisting on the blameless character of the requester and the fault of the answering. In Fiji, the Family Law motivate provides alone one ground for divorce and that is irrecover subject disruption (s 30). This marks a shift to no fault divorce, although often one of the various matrimonial offences which may be relied on as a grounds for divorce elsewhere may have contributed to the unretriev suitable breakdown of the marriage for example, criminal conversation by one of the checkmates.However a variety of lesser fault may have led to the irretrievable breakdown of the marriage. What the court is looking for is severalize of conduct which makes it impossible for the two parties to continue to live as save and wife in closing proximity to each other and sharing the identical home, resources and living spa ce. I. fornication Adultery is one of the more or less reciprocal grounds of divorce where it is lock up necessary to show fault.For the purposes of obtaining a divorce on the ground of fornication in fault based legal powers, a wooer must point that the answering removed in voluntary sexual intercourse with a nonher psyche of the opposite sex during the subsistence of the marriage (Coffey v Coffey 1989 P 169). completely jurisdictions except for Fiji, Nauru and Tuvalu list adultery as a ground for divorce. READ s3 (1) (a) break stage Cap 29 (Tonga) In Tuvalu adultery, if proved, is prescribed as evidence which a court may accept as causing the marriage to completely break down.READ s 9(a) marital legal proceeding spell Cap 21 (Tuvalu) The item of adultery must be proved to the satisfaction of the court although the required shopworn of confirmation is un sack. In Elisara v Elisara 1994 WSSC 14 the proof consisted of testimony of the suppliant and her sister t hat they had found the co-respondent half(a) dressed inside the matrimonial home as well as the respondents admission. headland Justice Sapolu recited the facts as follows The supplicant, the wife, and the respondent, the husband, are a conjoin couple having been married on 5 January 1980.In the first quarter of 1993, the suer was below doubt that her husband, the respondent, was having an affair with the co-respondent. The respondent was plowor of the Department of Lands and Environment until near the end of 1992. The co-respondent was a arcanumary in the same department. Due to her suspicions, the petitioner and her cousins kept watch of the respondent? s where close tos on the nights that the petitioner and the respondent were not together. Then one night in the beginning of April 1993, the petitioner asked the respondent to drop her off at her family at Savalalo.Not truly pertinacious after the petitioner was dropped off, she headed back with her sister and cousins to their matrimonial home at Waivaseuta. When they arrived at Vaivase-uta the lights downstairs of the matrimonial home were on but not the lights upstairs. The respondent came out of the house and asked the petitioner as to why she was there. The petitioner gave the excuse that she was there to look for a parcel. She searched every bedroom in the house and found the co-respondent in one of the bedrooms half-naked. She told the respondent this is the net condemnation you result see me again in this house and past left.The petitioner? s sister as well as testified that she saw the co-respondent half dressed inside the matrimonial home at Vaivase-uta on the same night. LW310 Family faithfulness 4. 8 In his evidence, the respondent admits having committed adultery with the co-respondent. He says he has never denied to his wife, the petitioner, that he had committed adultery with the co-respondent. The corespondent did not appear to give evidence. On this evidence, I find that th e ground of adultery alleged in the petition had been established. Accordingly a decree is allow to dissolve the marriage of the petitioner to the respondent.?However, in Bhagmati & Another v Ishri Prasad 1974 20 FLR 75, the Court dismissed an allurement by a wife against an direct for dissolution of the marriage on the stern that admissions make by her were not voluntary. Mr. Justice Bodilly stated that The Court must have sufficient evidence in the beginning it to be reasonably satisfied. I think that it is clear that a court would not be reasonably satisfied upon a upright balance of probability, on the other hand I do not think that the standard of proof required is as high as that in criminal sides, namely beyond any reasonable doubt. It lies somewhere amid the two?. READ THE CASE NOWProving adultery can be difficult and may depend on circumstantial evidence. Read the case of Sugar v Fatafeti 1993 TOSC 2 for an illustration of this. A fraudulent secret understanding betw een the parties collusion is also one of the discretionary nix available to some courts in the region. READ s 11 (2) Divorce human activity Cap 29 (Tonga) Condonation or connivance may also act as a bar to the relief sought by the petitioner, whilst forgiveness by the petitioner provides the respondent with a defence in the marshall Islands, provided that the tender party is treated with conjugal kindness (26 MIRC 1 s17). conceive the Vanuatu case of Ilaisa v Ilaisa 1998 VUSC 16 where the question of condonation is considered. Adulterers must be joined as co-respondents in proceedings for divorce on the understructure of adultery in most jurisdictions unless they are exc apply by the Court on special grounds. See puddle Islands married Proceedings execution 1963 (NZ) s 22 Samoa Divorce and marital Causes regulation 1961 s 11 Kiribati and Solomon Islands matrimonial Causes serve 1950 (UK) s 3 and Vanuatu matrimonial Causes Act Cap 192 s17. In Niue this is at the discret ion of the court ((NZ) Niue Act 1966 s537.READ s 11 Divorce and Matrimonial Causes enactment, 1961 (Samoa) Proceedings against co-respondents may be dismissed by the Court if there is insufficient evidence against them. See for example, Samoa s. 10. LW310 Family justness 4. 9 READ s 6 Divorce Act Cap 29 (Tonga) In some countries petitioners have a right to cry reparation against corespondents. See for example, Vanuatu, Solomon Islands and Kiribati. The Solomon Island and Vanuatu Acts provide that a petitioner relying on adultery as a ground for divorce may usurp reparation from any person.The amount of re mediation which may be claimed against co-respondents is prescribed in Tonga. READ s. 13 Divorce Act, 1927 (Tonga) In train Islands, Vanuatu and Tonga the courts may direct the manner in which such amends are to be stipendiary or applied and the sex of the petitioner or respondent is irrelevant. However, nevertheless petitioner husbands in the Solomon Islands and non i-K iribati in Kiribati may claim damages in adultery cases. The categorisation and amount of such damages, which are not contract in the Acts, (except in Tonga) has been the subject of some judicial concern.In Tonga where the amount claimed is specified, the court found in Afa v Tali & Sika 1990 Tonga LR 185 that the maximum amount of damages should altogether be awarded where it was shown on the balance of probabilities that the conduct of the co-respondent brought about the breakdown of the marriage by, for example, seducing or enticing away the respondent. Further, damages were to be based on- (a) The actual value of the wife (sic) (in terms of money and companionship) and (b) allowance for injury to feelings, honour and family aliveness. Damages are measured as compensation and not to punish or make an example of the Co-respondent.This idea of damages as compensation rather than punishment was elaborated further in Lamatau v Mau 1991 TOSC 3. It has been indicated however that the award of damages is becoming less common and that the courts are reluctant to allow a change of claim to include damages see Mamata v Akolo 2001 TOSC 47. The Vanuatu case of Banga v Waiwo is further in digitatory of the difficulties faced by courts in the region when interpreting regulation derived from colonial sources whilst attempting at the same time to ack todayledge custom rightfulness and respond to local social conditions.This matter originated in the Senior Magistrates Court where the petitioner gave evidence that customary mergings had been held with regard to the marital dispute. As a offspring of these meetings the chiefs decided that the husband was to pay 20,000 vatu to the co-respondents husband and the co-respondent was to pay the wife 5,000 vatu and two pieces of calico. The petitioner was also to pay the co-respondent 5,000 vatu be causation she had insulted the co-respondent. Having refused to accept this decision, the petitioner approached the Court for a divorce and claimed 100,000 vatu damages against the co-respondent.The scrutineer for the co-respondent argued that the sum claimed was excessive and amounted to penitentiary damages. Reference was make to the Matrimonial Causes Act 1965 (UK) on which the Vanuatu Act is based. In the UK, it was argued, damages are awarded on a compensatory basis only and this should also be the approach of the fairness in Vanuatu. The amount awarded by the Chiefs, namely 5,000 vatu, was submitted as being steal as compensation for the loss of the Husband (sic). On behalf of the petitioner it was submitted that component 17 (1) of the Act should be interpreted according to the end of Parliament. That prick states that A petitioner may on a petition for divorce claim damages from any person on the ground of adultery with the respondent. It was also contended that adultery is a skilful offence in Vanuatu communities and that punitive damages are often given for adultery which show clea r that Vanuatu local circumstances are different from those of the United earth.The Senior Magistrate (then) considered the phone number of the interpretation of section 17 of the Act and referred to the rules in Heydon? s case (1584) as restated in Re Macmillion v Dent (1907) 1 Ch 120, Brett v Brett (1826) 2 D and s 8 of the Vanuatu Interpretation Act majuscule 132. In determining the intention of parliament the Senior Magistrate found circumstances in Vanuatu to be quite different from those in the United Kingdom and the Acts themselves to differ in important respects. Unlike the position in the UK Act, which allows only a petitioning husband to claim damages, the Vanuatu Act is not so limited.In comparability the UK and Vanuatu jurisdictions, it was noted that in Vanuatu the law recognises civil, religious and custom marriages and customary law, consistent to Article 95(3) of the Constitution. Further, because adultery is considered a serious offence on the basis of custom, a ny damages claimed by the requester against the Co-Respondent should be awarded in accordance with customary law. The Senior Magistrate did not categorise the cause of damages to be awarded. He found in favour of the petitioner with regard to the amount of damages, however, stating that, 00,000 Vatu damages claimed against the Co-Respondent is not excessive and it should be awarded to the Petitioner in accordance with customary law. The matter then went on appeal to the Supreme Court of the Re globe of Vanuatu where Chief Justice Vaudin dImecourt held that, whilst cautionary damages could be awarded in an curb case, no evidence justifying such an award had been presented to the court. His Honour considered that custom law only LW310 Family law 4. 11 applied where no other law was in force. The Court also found that custom law is not like in Vanuatu and Although it is conjectural that there susceptibility not be a need for strict rules regarding the obtaining of evidence of a particular custom if and when the need arises to establish a particular custom, evidence must, nevertheless, be obtained and a clear custom must be established. READ Waiwo v Waiwo 1996 VUMC 1 and Banga v Waiwo 1996 VUSC 5 In Solomon Islands and Kiribati where UK Acts still apply, damages for adultery may be claimed by petitioner husbands. Where damages are not available the court may order an adulterer to pay costs. S t u d y T a s k 1 CONSIDER THE sideline QUESTIONSAdultery and Divorce 1. Do you think it is sufficient for the petitioner to simply show that the respondent has committed adultery OR that the respondent has committed adultery AND ALSO that the petitioner finds it intolerable to live with the respondent? 2. If it is sufficient only to show that the respondent has committed adultery is one incident of adultery sufficient? 3. To what goal should the court investigate the claim? If the petitioner files an profane swearing stating he or she believes the respondent to have to have committed adultery is that sufficient? . What does adultery as a ground for divorce which is a great deal relied on tells us a) about marriage b) about people? 5. Should it make any difference to a divorce petition if the petitioner has also committed adultery? 6. Is the adultery of a woman more serious than that of a man? If yes why? 7. If the ground for divorce is irretrievable breakdown or final breakdown of a marriage and the matrimonial fault relied on is adultery, should this be viewed more gravely than other matrimonial offences such as cruelty, public drunkenness, or desertion? . Could adultery be claimed as the ground for divorce even if in fact it is not this but other factors which have led to the irretrievable breakdown of the marriage? 9. To what extent should the law of divorce be used to punish adultery? 10. What is the emolument/disadvantage of joining a co-respondent to adultery in a divorce action? 11. Should a petitioner be able to claim damages f rom more than one corespondent? What are damages for in such cases? 12.Would it make any difference if the respondent had promised to marry the coLW310 Family law 4. 12 respondent? 13. Should a co-respondent ask if the respondent is married before having intercourse with him or her? 14. Should it make a difference in law if the co-respondent is married or not? 15. Is adultery a) illicit b) immoral c) a fact which may be evidence of the breakdown of a marriage? 16. Should any consideration be given to the fact that there are children born from the adulterous union? II. DesertionIn Tuvalu and Nauru the sole ground upon which a petition for divorce may be presented is that the marriage has completely broken down (Matrimonial Proceedings Act Tuvalu s 9(1) and broken down irretrievably(Matrimonial Causes Act 1973 s 8 Nauru) several(prenominal)ly. In Tuvalu, desertion without reasonable cause (s. 9(2)(b) may be accepted as evidence of marriage breakdown whilst in Nauru it is one of th e grounds which, if proved, can lead to a finding that the marriage has broken down irretrievably. (s 9 (1)(a)(ii) Desertion is not a ground for divorce in Tokelau.READ ss 9(1) and 9 (2)(b) Matrimonial Proceedings Act Cap 21 (Tuvalu) The applicable provisions in Kiribati, (Native Divorce polity s 4(b) and Matrimonial Causes Act (UK) 1950 s 1(b)) Niue ((NZ) Niue Act 1966 s 534(3)(c)) Solomon Islands (The Islanders Divorce Act Cap 48 S5(1)(b) and Matrimonial Causes Act 1950 (UK. ) s 1(b)) and Vanuatu ( Matrimonial Causes Act Cap 192 s 5(a)(ii)) state that the respondent must have deserted the petitioner without just cause (the wording in the Kiribati and Solomon Islands canon is without cause) for at least ternary years.In the realise Islands and Nauru the period is two years prior to filing the petition ( Matrimonial Proceedings Act, 1963 (NZ) s 21 (c) and Matrimonial Causes Act 1973 ss 9(1)(ii), 12 (3). 54) Wilful desertion is statutorily provided for in score Islands (Matrimon ial Proceedings Act, 1963 (NZ) s 21 (c)) Marshall Islands (26 MIRC 1 s 15 (c)) Samoa (Divorce and Matrimonial Causes ordination 1961 s 7(1)(b)) and Tonga (The Divorce Act Cap 29 s 3(1)(c)). LW310 Family law 4. 13The Marshall Islands Act prescribes a period of not less than one year before wilful desertion may be alleged, Samoa prescribes three years and the other jurisdictions prescribe two years. READ s 7(1) (b) Divorce and Matrimonial Causes Ordinance, 1961(Samoa) there appears to be no difference in law between wilful desertion and desertion as in all cases the burden is on the petitioner to show that throughout the statutory period the desertion subsisted without cause. A distinction can be make however between desertion and constructive desertion.Facts presented to the court must show that the respondent intended to leave behind the marriage and that the desertion was against the pull up stakes of the petitioner. If the behaviour of one party to the marriage causes the othe r to leave the matrimonial home then constructive desertion may be argued. organise Islands also allow desertion to continue notwithstanding that during the period of the desertion the deserting party becomes incapable(p) of forming or having an intention to continue the desertion (Matrimonial Proceedings Act, 1963 (NZ) s 24)A review of desertion as a ground for divorce can be found in the Solomon Island case of Kikolo v Aberam 2002 SBHC 28. In the Fiji case of Kistamma v Sarojini 1977 23 FLR 86, desertion was not do out because the respondent was found to have made a genuine offer to return to the marriage. See also Ledua v Uluiborotu 1994 FJHC 182 and compare deal v Peck 1993 FJHC 34 there may be some confusion between desertion as a ground for divorce and separation. This was considered in the case of Peck v Peck 1993 FJHC 34 III. Failure to Consummate the MarriageThe issue as to whether or not the marriage has been consummated is dealt with in some jurisdictions as a ground for divorce and in others as render the marriage fend offable. The last mentioned approach is taken by Cook Islands (Matrimonial Proceedings Act, 1963(NZ) s 18 (2)(a)) Nauru (Matrimonial Causes Act 1973 s 22 (e)) Samoa (Divorce and Matrimonial Causes Ordinance 1961 s 9(3)(a)) Solomon Islands (The Islanders Divorce Act Cap 48 s13 (1)(a) and Matrimonial Causes Act 1950 (UK. ) s 8 (1)(a)) and Vanuatu (Matrimonial Causes Act Cap 192 s 2(1)(a)).In Fiji, if a party was incapable of consummating, the marriage used to be rendered voidable (Matrimonial Causes Act Cap 51 s 9(1) (a)) 70 whilst wilful and persistent refusal to consummate was a ground for divorce (Matrimonial Causes Act Cap 51 s 14(c)). The new Family Law Act abolishes this ground for divorce. Inability of failure to consummate may however lead to the irretrievable breakdown of the marriage. In Tuvalu the term voidable is not used but wilful refusal to consummate provides an entitlement to divorce (Matrimonial Proceedings Ac t Cap 21 s 8).LW310 Family law 4. 14 The Marshall Islands legislation provides that- A decree annulling a marriage may be rendered on any ground existing at the time of the marriage which makes the marriage illegal and void or voidable. A court may, however, refuse to annul a marriage which has been ratified and affirm by voluntary cohabitation after the obstacle to the validity of the marriage has ceased, unless the public interest requires that the marriage be annulled. (26 MIRC 1 s 12)?In Kiribati it is a ground for divorce if the respondent has either wilfully refused or is incapable of consummating the marriage (Native Divorce Act Cap 60 s 4(d)) whilst in Tonga the section is much wider and provides that if- the respondent at the time of the marriage is and continues to be incapable of consummating the marriage by reason either of some structural defect in the organs of generation which is incurable and renders complete intercourse impracticable or of some incurable mental or moral disability resulting in an invincible repugnance to sexual intercourse with the petitioner. Divorce Act Cap 29 s3 (1) (e)) The petitioner has grounds for the marriage to be dissolved. In the region, only Tokelau does not provide for failure to consummate as either a ground for divorce or as possibly rendering a marriage voidable. IV. inhuman treatment Whilst cruelty is not mentioned specifically in the legislation of Cook Islands, Nauru, Niue and Tonga it is a ground for divorce elsewhere in the region in Kiribati Marshall Islands and Samoa. In Vanuatu, such cruelty must be persistent.A clear consideration of what may amount to cruelty was considered in the case of Kong v Kong 1999 VUSC 41. See also the approach taken in the Marshall Islands where the fault of either party toward the other of such cruel treatment, neglect or own(prenominal) indignities, whether or not amounting to bodily cruelty, as to render the life of the other heavy and intolerable and their further living together intolerable? (26 MIRC 1 s 15(b)81) is a ground for divorce.The scope of the cruelty is extend by the Regulations in Tokelau which specify that the cruelty can be direct to the applicant or a child of the applicant (Tokelau Divorce Regulations 1987 Reg. 3). The applicable provisions in Cook Islands, Niue and Samoa require that the respondent be not only habitually cruel but a habitual inebriate as well ((NZ) Matrimonial Proceedings Act, 1963 s 21 (e) (NZ) Niue Act 1966 s 534 (3)(d) Divorce and Matrimonial Causes Ordinance 1961 s 7(1)(c)83). LW310 Family law 4. 5 In the Solomon Islands case of Elaine Bui v Anthony Makasi 1993 SBHC 3, the applicant succeeded in obtaining a divorce on the ground of cruelty. Justice Palmer held that it was not necessary to find physical violence and considered four specific allegations. Three of the allegations involved assaults and threats against the petitioner whilst the respondent was drunk and the fourth allegation involved an assa ult on the first child of the parties. READ THE CASE NOW V. Criminal ConvictionsIn the Cook Islands, Samoa, and the Solomon Islands and for non i-Kiribati only a respondent husband can be guilty of rape, sodomy or beat outiality and sued for divorce by his wife. (Cook Islands Matrimonial Proceedings Act, 1963(NZ) s 21(1)(h)Kiribati Matrimonial Causes Act 1950 (UK) s 1 Samoa Divorce and Matrimonial Causes Ordinance 1961 s 7(1)(k), Solomon Islands The Islanders Divorce Act (Cap 48) s 5 (1) and Matrimonial Causes Act 1950 (UK. ) s 1) In Vanuatu, a wife may divorce her husband if he has been convicted of rape or an unnatural offence (Matrimonial Causes Act Cap 192 s5).Incest, seek rape or assault with intent to rape a child of the either party provides a ground for divorce in the Cook Islands Matrimonial Proceedings Act 1963 (NZ) s 21(1) (g) and Niue (Niue Act 1966 (NZ) s 543(f)) as does sexual intercourse or attempted sexual intercourse with the child. Husbands in Niue who commit r ape or buggery(s 543(g) or either party to a marriage in the Cook Islands, Samoa or Niue who is convicted of murder may also be divorced.Other criminal convictions which provide a ground for divorce are those which result in various periods of impoundment including for a life sentence, seven-spot years and five years. (E. g. Marshall Islands 26 MIRC 1 s 15(e) stipulates imprisonment for life or for three years or more see also Samoa Divorce and Matrimonial Causes Ordinance 1961 s 7(1)(l) and Tonga The Divorce Act, 1927 s 3 (1)(a)). Serious offences against the petitioner are also specifically provided as a ground for divorce in three jurisdictions.In three of these, offences against a child of the parties are included Cook Islands (Matrimonial Proceedings Act, 1963(NZ) s 21(1) (f) Niue (Niue Act 1966 (NZ) s 534 (3) (e)) and Samoa (Divorce and Matrimonial Causes Ordinance 1961 s 7 (d)) READ s 7(d) Divorce and Matrimonial Causes Ordinance, 1961(Samoa) VI. Drunkenness In the jurisdi ctions where drunkenness is a ground for divorce, such as Cook Islands (Matrimonial Proceedings Act 1963(NZ) s 21(1) (f)) Samoa (Divorce and Matrimonial Causes Ordinance 1961) s 7(1) (d)) and Niue (Niue Act 1966 (NZ) s 534 (3) (e)) the legislation is not uniform although the CookIslands, Niuean and LW310 Family law 4. 16 Samoan Acts are in very similar terms. As noted above these Acts affiliation drunkenness and cruelty. They also link other behaviour with drunkenness along the lines of handed-down gender roles in marriages, as illustrated by the Samoan provision which states that the respondent has for three years or more been a habitual drunkard and has either habitually left his wife without sufficient heart and soul of support or habitually been guilty of cruelty toward her or, being the petitioner? wife has for a like period been a habitual drunkard and has habitually neglected her domesticated duties and rendered herself unfit to arouse them. (Divorce and Matrimonial Caus es Ordinance 1961) s 7(1) (c)) In the Cook Islands and Niue, the relevant section is in similar terms with a three year time period for a husband who is a habitual drunkard or drug addict and who either leaves his wife without means of support or who is habitually cruel to her. (Cook Islands Matrimonial Proceedings Act, 1963(NZ) s 21(1) (e) Niue, Niue Act 1966 (NZ) s 534(3) (d)).A wife must be similarly devoted and either habitually neglect her domestic duties and have been unfit to discharge them or be habitually guilty of cruelty towards the husband. (Cook Islands Matrimonial Proceedings Act, 1963 (NZ) s 21 (e)(i)which prescribes a period of two years future(a) amendment by the Cook Islands Amendment Act1982 Niue Niue Act 1966 (NZ) s 534(3) (d)(i)). In the Marshall Islands the time period is reduced to not less than one year.The applicable section requires habitual intemperance in the use of intoxicating liquor or drugs (26 MIRC 1 s 15(d)). Obviously the time limits are used to bar applications for divorce after one or several episodes involving excessive use of alcohol or other drugs. VII. Failure to Maintain In Niue and in Samoa a petitioner wife may only rely on insufficient means of support if the respondent husband is a habitual drunkard or addict (Niue Act 1966 (NZ) s 534(3) (d) (i) and Divorce and Matrimonial Causes Ordinance (1961) s 7(1) (c) (Samoa)).The equivalent provision in Marshall Islands targets the wilful neglect by the husband to provide sui tabularise support for his wife when able to do so or when failure to do so is because of his idleness, profligacy or dissipation (26 MIRC 1 S15 (I)). VIII. Presumed Dead In the Cook Islands it is a ground for divorce if the respondent can be presumed dead on reasonable grounds. (Matrimonial Proceedings Act, 1963 (NZ) s 19) Separate provision is made for this in Samoa where five years absence is required (Divorce and Matrimonial Causes Ordinance (1961) s 8) and in Nauru, Marshall LW310 Family law 4. 7 Islands and Vanuatu the period is seven years (26 MIRC 1 s 29 Matrimonial Causes Act 1973 s 29 Matrimonial Causes Act (Cap 192) s13). The United Kingdom legislation applying in Kiribati and Solomon Islands also makes separate provision for a decree of presumption of finish and dissolution of marriage after seven years of absence (Kiribati Matrimonial Causes Act 1950 (UK) s 16 Solomon Islands Matrimonial Causes Act 1950 (UK. ) s 16). IX. unfit Mind or InsanityIn the Cook Islands a marriage is rendered voidable if at the time of the marriage either party was a mental defective (Matrimonial Proceedings Act, 1963 (NZ) s 18 (2) (b)). Insanity, provided that it has existed for three or more years may provide grounds for divorce in one estate (see Marshall Islands 26 MIRC 1 s15 (f)) but other jurisdictions refer to the unsound mind of the respondent to divorce proceedings. The length of time that a person has been of unsound mind, possibility of recovery and proof of the condition ar e material.Some jurisdictions require that the respondent be under care and treatment unendingly for five years prior to the presentation of the petition for divorce (e. g. Cook Islands Matrimonial Proceedings Act, 1963(NZ) s 21(1)(l) Kiribati Native Divorce Ordinance Cap 60 s 4(e)Kiribati Matrimonial Causes Act 1950 (UK) s 1(d) Niue, Niue Act 1966 (NZ) s 534(3)(k) Samoa Divorce and Matrimonial Causes Ordinance (1961) s 7(f), (g) Solomon Islands The Islanders Divorce Act Cap 48 s 5 (1)(d) and Matrimonial Causes Act 1950 (UK. s 1 (d) Tonga The Divorce Act, 1927 s 3 (1)(d) Vanuatu Matrimonial Causes Act Cap 192 s 5 (a)(iv)). Samoa extends its provision to cover the possibility of a project in another country (Divorce and Matrimonial Causes Ordinance (1961) s 7(1) (g)). The Cook Islands, Niue and Samoa also cover the possibilities of respondents being of unsound mind intermittently and continuously for a number of years (Matrimonial Proceedings Act, 1963 (NZ) s 21(1) (j), (k) Niue Ac t 1966 (NZ) s 534(i) (j) Divorce and Matrimonial Causes Ordinance (1961) s7 (f) & (g)).Respondents must be either unlikely to recover (Cook Islands, Niue, Samoa, Tuvalu) or incurably of unsound mind (Kiribati, Solomon Islands, Tonga and Vanuatu). Reference may be made to applicable Mental Health legislation (Kiribati, Niue, Samoa, Solomon Islands and Tuvalu). There is no reference to insanity or unsound minds in Nauru or Tokelau. READ s 7 Divorce and Matrimonial Causes Ordinance, 1961(Samoa) X. marital equipment failure Living Apart The legislation in Marshall Islands, Nauru and Tonga provides a set out all provision in identical terms dealing with the behaviour of the respondent generally.The provisions require that the petitioner cannot reasonably be LW310 Family law 4. 18 expected to live with the respondent because of that behaviour (Marshall Islands 26 MIRC 1 s 9(1) (a) Nauru Matrimonial Causes Act 1973 s 9(1) (a) (i) Tonga The Divorce Act, 1927 s 3 (1) (g)). The parties a re treated as living apart in Nauru unless they are living with each other in the same household although they may live together for a period or periods not portentous six months, in an attempt to reconcile, without prejudice.In wider terms, the Tuvalu Act allows parties to divorce on proof that the marriage has broken down where in the circumstances it would be wild to expect one party to continue in the marriage relationship with the other. READ s 9(2) Matrimonial Proceedings Act, (Cap21)(Tuvalu) When a party asks for a divorce on the ground that petitioner and match are living apart, is this just another way of claiming that petitioner has been deserted or is this a different ground? Some answer to that question might be provided in the case of Ng Lam v Ng Lam from Samoa.READ the Ng Lam case directly XI. Incompatible Temperaments Kiribati is the only jurisdiction to allow divorce on the basis that the temperaments of the parties are incompatible (Native Divorce Ordinance Cap 60 s 4(j). This is a significant departure from other jurisdictions and is clearly a no fault ground for divorce. The closest compare is the provision in Tuvalu relating to circumstances as described in the antecede split. However in Fiji, incompatibility of temperament might be a cause of the irretrievable breakdown of the marriage.XII. Disease Whilst the contraction of disease may render a marriage voidable in most jurisdictions it can be used as a ground for divorce in others. Kiribati prescribes venereal disease as a ground for divorce if certain as such by a medical officer(Native Divorce Ordinance Cap 60 s 4(g)) whereas Tonga specifies affliction with an incurable disease capable of being transferred to the petitioner by contagion of infection (The Divorce Act Cap 29 s 3 (1) (d)).The Marshall Islands prescribes leprosy as a ground for divorce (26 MIRC 1 s 15(g)) XIII. Other Grounds The Marshall Islands lists neglect or personal indignities as grounds for divorce if this re nders the life of the other party burdensome and intolerable and the married life unsuppor shelve (26 MIRC 1 s 15(b)). Kiribati has the supererogatory grounds of epilepsy (Native Divorce Ordinance Cap 60 s 4(f)) duress or mistake (s 4(h)) and parties within prohibited degrees of LW310 Family law 4. 9 consanguinity or affinity (s 4(i)) as grounds for divorce. Other jurisdictions categorise such issues as rendering a marriage void or voidable (e. g. Cook Islands Matrimonial Proceedings Act, 1963(NZ) s 7(1) (a) (ii) Niue Niue Act 1966(NZ) s 515). Similarly, the Tongan Act states that it is a ground for divorce if a respondent has a former mate still living (s 3 (1)(b)), whereas this situation renders a marriage void in Cook Islands, Nauru, Solomon Islands, Samoa and Fiji.The Cook Islands and Niue provide that a husband can file for a divorce if without his consent his wife has been artificially inseminated with the seminal fluid of some man other than himself (Matrimonial Proceeding s Act, 1963 (NZ) s 21(1)(b) and Niue Act 1966 (NZ) s 534(3)(b)). A marriage is rendered voidable in Cook Islands (Matrimonial Proceedings Act, 1963 (NZ) s 18 (2) (d) and IN Vanuatu (Matrimonial Causes Act (Cap 192) s 2 (1) (d)) if a wife is pregnant at the time of her marriage by some person other than the petitioner.The Cook Islands takes this situation further by providing for dissolution where a woman other than the petitioner wife is pregnant by the respondent (Matrimonial Proceedings Act, 1963 (NZ) s 18 (2) (d)) 2. Cus tomar y Di vor c e The divorce laws of the region are governed by written legislation much of it introduced under colonial administration and now therefore, quite out of designation. Where marriages may be entered into according to custom then customary divorce applies. This occurs in Vanuatu and Solomon Islands. habitual divorce also has some problems.Consider the two cases below. Both are from Melanesia. In all other respects, the two cases are very differen t. As you read To? ofilu v Oimae, a case from Solomon Islands, and the Wagi Non case from Papua New Guinea, consider what differences, if any, there are between the customary law of divorce and the statutory law of divorce. Consider also the attitudes of the two judges towards custom. READ To? ofilu v Oimai now And, when you have finished that case READ Application of Wagi Non 3. RECOGNITION OF external DIVORCE DECREESAs peace-loving people acquire greater mobility and come into meeting with people of other disciplineities and who are domicile in other countries it is not unusual that marriages and divorces occur outside the region or in a different jurisdiction. It is therefore important to know what recognition is given by domestic law to these decrees. LW310 Family law 4. 20 In Nauru, the Recognition of contradictory Divorces, Legal Separations and Nullity of Marriages Act 1973 provides guidelines for judicial recognition of foreign orders or decrees. The following sections give the grounds for recognition and the exceptions from recognition respectively- . 4 (1) The validity of a foreign divorce, legal separation, annulment of marriage or declaration of invalidity of marriage shall be recognised if, at the date of the institution of the proceedings in the country in which it was obtained (a) either spouse was habitually resident in that country, (b) either spouse was a national of that country or (c) the proceedings by means of which it was obtained were held in the lesson in that country of a jurisdiction similar to any jurisdiction conferred in the Family Court in respect of proceedings in Nauru by section 44 of the Matrimonial Causes Act 1973. 2) In relation to a country the law of which uses the concept of domicile as a ground of jurisdiction in matters of divorce, legal separation or nullity of marriage, paragraph (a) of the preceding section shall have the gist as if the reference to habitual residence included a reference to domicile within the convey of that law. (3) In relation to a country comprising territories in which different systems of law are in force in matters of divorce or legal separation, the preceding provisions of this section, except those relating to nationality, shall have effect as if each territory were a separate country. s. 9 (1) Recognition by virtue of this Act of the validity of a divorce, legal separation, annulment of marriage or declaration of invalidity of marriage obtained outside Nauru may be refused if, and only if (a) it was obtained by one spouse (i) without such steps having been taken for giving notice of the proceedings to the other spouse as, having regard to the temperament of the proceedings and all the circumstances, should reasonably have been taken, or ii) without the other spouse having been given, for any reason other than lack of notice, such opportunity to take part in the proceedings as, having regard to the matters aforesaid, he should reasonably have been given or (b) its recognition would manifestly be contrary to public policy. (2) Nothing in this Act shall be construed as requiring the recognition of any findings of fault made in any proceedings for divorce, legal separation or annulment or of any maintenance, custody or other ancillary order made in any such proceedings. LW310 Family law 4. 21 READ the following case Meleisea v Meleisea 1994 WSSC 24 Where legislation does not deal with the recognition of foreign decree, courts must have refuge to the common law. The case example above shows how this may occur in practice. It also highlights possible evidentiary problems when dealing with overseas decrees. 4. Divorce Marital Agreements, Collaborative Law, Mediation and Family Arbitration Litigation has for a long time been the traditional battlefield for disputing parties within the Family Law.The financial and emotional cost of judicial proceeding in the Family Courts is an issue that has often prompted debate over the years. When parti es engage themselves in long, drawn out disputes, the strain is not just felt financially, the children will often be victims, courts are clogged with an overflow of cases and the public will end up bearing the burden of resources spent. The time has come for courts to begin utilising different forms of declaration disputes within the courts and one such mechanism is arbitrament or option dispute flowment (ADR).Dispute resolution is not a new concept to the South Pacific as most societies are acquainted(predicate) with one form or another. Most Pacific societies are familiar with the ideas of alternative dispute resolution without necessarily being familiar with the term. As Vanuatu Chief Justice Lunabek informed a gathering on battle resolution held in Vila in 2000 ADR is not a new concept to Pacific Island jurisdictions and, in particular, to Vanuatu. It is, in fact, consistent with traditional methods of dispute resolution that predated the introduction of the formalised system of justice. The resolution of conflict is described as being deeply embedded in the grow in many societies, so that its structures remained unobtrusive.? (Graham Hassal, Alternative Dispute Resolution in Pacific Island Countries? 2005 9 (2) Journal of South Pacific Law) In jurisdictions that implement ADR in the Family Court, there are different emergencees currently available and these include i. Counseling This can be likened to a sort of therapeutic process that is aimed at examining the underlying conflict between parties and with the goal of assisting with reconciliation.Parties are advance to sort out their differences rather than opting to go to court. In Fiji, one of the make strategies in the Family Law Act to provide support to troubled families is to make available within the Family Court an on-site counseling service. There is statutory requirement under s. 11 of the LW310 Family law 4. 22 Act for the director of Counseling to advertise the existence and ava ilability of the counseling and welfare facilities of the respective Family Division? and as far as practicable, to make those facilities available to those pursuit such services.The Act provides for three different types of counseling and these are marriage reconciliation, family and child counseling and financial and property conciliation. (See also the Family Protection Act, Vanuatu) minor counseling is an important component because the focus is on the parents coming to an accordance about issues pertaining to the child (ren) and this is done with the belief that the best judges of the childrens best interest are the parents and not the court. Section 50 and 51 of the Family Law Act, Fiji make provisions for child counseling.This is where a parenting plan may be drawn up by the parents. Some issues that the plan will address is where and with whom the child is to reside (focus will be on the effect of relocating a child from a familiar environment), the issue of contact betwe en the child and the non-custodial parent and other persons, the maintenance of a child and any other aspect of parental responsibility towards the child. ii. Negotiation (including round table conferences and collaborative law) This seems to be the most common form of dispute resolution in family law.The simplest example of dialog is where separated parties have raillerys with each other to determine if they can resolve some or all of their issues. This is very similar to counselling where parties may be focused on what type of parenting arrangement they will agree to. Parties may choose to conduct negotiations on their own or if this proves too difficult then they may engage the services of their lawyers who will negotiate on their behalf. The latter form is now known as round table conference. A round table conference is one where parties and lawyers meet together, generally at one of the lawyers offices, to condense settlement discussions. One or both lawyers will initiate th e meeting. The conference can be used to resolve any type of legal issues, such as those about parenting and property and finances. Lawyers need to come to the meeting prepared with all relevant information, such as valuation of properties and superannuation entitlements, where there is property dispute. If a dispute is complex, a series of round table conferences may be needed.? Alexander Harland et al, Family Law Principles (1st ed. 2011) A more complex form of negotiation is known as collaborative law which aims to resolve matters without recourse to litigation. Parties who choose to participate in this type of negotiation must sign an parallelism that commits each of them to the process and this agreement includes an labor that parties will not resort to litigation. If one party wishes to opt for litigation then the disputing parties lawyers must be changed as they had originally signed the agreement on litigation.This is one drawback of this option. Collaborative law may be appropriate where Parties in low conflict are motivated to work together with the assistance of their lawyers to resolve their dispute, without going to court Parties are committed to negotiating a settlement outcome Parties may have substantial assets, and then can involve their accountant and financial advisors in the negotiation process.? (Alexander Harland et al, Family Law Principles (1st ed. 2011) This form of negotiation first began in the United States and Canada and is today used in Australia. ii. Mediation Mediation is a process where a third party enters the dispute as a sort of referee and to facilitate the discussion between disputing parties. This third party may be someone from the community, the family court, a counsellor, and even lawyers. The Family Court of Fiji operates according to simple, appropriate and effective procedures, offers counseling and mediation support services. Mediation may be appropriate where Parties are able to negotiate with assistance a nd want to work towards settlements Both parties are able to negotiate during the process and are not prevented from doing so by an fire power imbalance, due to family violence, mental health problems, cultural factors or other issues (or the process can be structured in an appropriate way for example, shuttle mediation in separate rooms and each party has a lawyer representative during the mediation).? (Alexander Harland et al, Family Law Principles (1st ed. 2011) iv. Conciliation This process is not one aimed at getting the parties back together.Rather it is designed to allow for the disputing parties to settle issues regarding the settlement of matrimonial property. The conciliator will be a pendant lawyer who will receive training in conciliation and alternative dispute resolution skills. They will discuss who will live in the matrimonial home or whether it should be sold whether payments are to made to the Bank for loans how much maintenance is to be paid for the children or the other spouse if relevant how income once going into one family will be shared between two homes their various financial commitments to the Bank or other debtors and any other financial matters.? Imrana Jalal (2009) in Narawa-Daurewa U, The Family Law Act of Fiji, 2003 A Brief Review of Provisions in the Act The extend to on the Family (with Emphasis on Women? s Access to Justice) (LLM thesis, University of the South Pacific, 2010) once again the idea of this type of service in the Family Courts is to ensure that parties are the best judges and should try to resolve the issues themselves rather than litigating. v. Arbitration Arbitration is again another means of trying to resolve disputes by means of a third party involvement.The difference between arbitrament and mediation is that with the latter you always have the choice of backing out or not accepting the options being offered by the other party (spouse). In arbitration, although the justice cannot grant a divorce, they do have power over how property distribution and custody and access issues are resolved. An upside to arbitration is that parties are able to keep matters out of court and private and it is also more cost effective. The downside is that for jurisdictions that offer arbitration processes in family law the order made by the arbitrator is not binding until registered in court.See for example, the Family Law Act of Australia. Conclusion Arbitration should be advanced as a loveable alternative to litigation. A revision of the family legislation in countries of the South Pacific is necessary at this time in light of the ever-increasing use of arbitration and the developments of the law in this area. Alternative dispute resolution is being used in other areas of law as a means of resolving disputes without litigating and so it begs the question, why is the family law being left behind? . Conc lus ion There are various models of divorce law evident in the USP region which can provide compa risons for reformers. Tuvalu, Kiribati, Nauru and Tuvalu have partial no fault systems and the leftover are largely fault based. Some, however, have retained the concept of matrimonial fault whilst allowing divorce after a relatively short period of separation. Those laws which focus on fault do so because this was the approach of colonial law prior to independence.This has also led, in two countries, to the application of different matrimonial laws to people in the same jurisdiction on the basis of race rather than relying on the domicile or residence of the petitioners. The legislation also reflects a time and culture when the roles of men and women were largely undisputed and family life was designed for the procreation of children, the passing of inheritance to ones offspring and the restriction of sexual activity to the parties of the marriage exclusively. This is reflected most dramatically in some of the failure to maintain grounds.In Samoa, intoxicant husbands must be sure to financially support their wives or face the possibility of divorce while alcoholic wives must determine the nature of their domestic duties and carry them out without neglect. Niue and the Cook Islands alert husbands to the possibility of wives being artificially inseminated with semen which is not theirs, whilst husbands in the Cook Islands and Vanuatu may opt out of a marriage if their wives, at the time of marriage and without their knowledge, were pregnant by a person other than themselves. Wives in the Cook Islands also have redress if their husband has fathered a