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Ledua v Uluiborotu. [1994] FJHC 182; Hbd0004j.93s (9 December 1994)

IN THE HIGH COURT OF FIJI
AT SUVA
IN DIVORCE

MATRIMONIAL CAUSE NO. 4 OF 1993

Between:

NACANIELI LEDUA
Petitioner

- and -

VENAISI RUGUA ULUIBOROTU a.k.a.
VENAISI RUGUA LEDUA
Respondent

Ms. G. Philips for Petitioner
Mr. A. Seru for Respondent

JUDGMENT

The Petitioner is seeking dissolution of his marriage with Respondent on ground of constructive desertion.

The contents of the Petition are as hereunder. The parties were lawfully married in the District of Kingston Upon Thames, United Kingdom on 9 September 1972. At the time of the marriage the Petitioner was a bachelor and the Respondent a divorcee. The Petitioner was born in Kabara, Lau, Fiji on 21 November 1942 and the Respondent in Bua, Fiji, on 13 July 1945. They are both domiciled in Fiji as both of them live in Fiji and the Respondent is a Fiji Citizen.

The parties cohabited at various places in Europe and the United Kingdom from the date of marriage until 1984 when they returned to Fiji. On their return they resided at Bellevue Apartments, Suva and from September 1990 they lived and cohabited at 179 Princes Road, Tamavua, Suva until cohabitation ended on or about 5 February 1991 when the Petitioner as he says was "compelled to move out of the matrimonial home and cease cohabitation with the Respondent due to the Respondent's conduct". They have one child (adopted) namely ISOA TUILEVUKA ULUIBUROTU who was born on 13 June 1977 at Suva and adopted by the parties on 8 September 1978. There have not been any previous proceedings in any Court of law with respect to the marriage. The parties have lived separate and apart since the said 5 February 1991. The Petitioner has not condoned or connived with the Respondent and is not guilty of collusion in presenting this Petition.

In the Discretion Statement filed by the Petitioner he says that since the date of his marriage to the Respondent he has committed adultery with one ASINATE MERESEINI VAKALUTUGONE of Suva and he sets out therein the particulars of adultery.

The Petitioner is praying for an order for dissolution of the marriage with the Respondent on the ground of constructive desertion notwithstanding his adultery during the marriage and is asking the Court to exercise its discretion in his favour.

Most of the matters in the Petition are not in dispute except that the Respondent is denying the allegation of 'desertion' on her part.

The salient features of the Petitioner's evidence are as set out below. He said that he regarded himself as "major breadwinner in relation to marriage" although she herself was also earning. She used her income for herself and not for the family. Unlike in the United Kingdom where they lived for sometime, here in Fiji he has "an extended family unit". Because of "changes in nuclear family unit" he expected that the wife would be respectful to other family members, and because he was looked upon as the head of "clan" the wife is expected to be supportive of him. But the wife "had indifference towards" family members and did not attend meetings which he had once a month at his home. He spoke to her many times about these differences but they ended up in "fighting". As a result of all this she told him "to get out of the house". His marriage he says, became unbearable because of her conduct and he viewed this as being an end to the matrimonial relationship with the cessation of sexual relationship as well. All this forced him to leave the matrimonial home in February 1991.

He complains of Respondent not fulfilling her marital obligations by doing the household chores and he had to rely on female members of his family to look after the house. She caused trouble at Golf Course whenever he was there and he had to come out of the Club. She travelled overseas several times leaving the child to be looked after by him. It was decided in 1986 to adopt another child but on return from her overseas trip she refused to adopt and this caused embarrassment to the Petitioner. There were instances of the Respondent accusing the Petitioner's sister of stealing her dress and this caused him distress. All these matters led to a deterioration of relationship between the Respondent and the family members. The Petitioner said that in 1989 - 90 when the Respondent was doing part-time studies in computer at the University of the South Pacific he found himself under "stress" because when "things" did not go right with studies he felt "snubbed and not spoken to" and "to be a snubbed at home is more distressing than a shouting match" he said. At times she would not speak to him at all. On another important occasion in 1986 when the Petitioner's mother came from Kabara for the ceremony of "Tevutevu" (ceremony of spreading new mats and bedding for the new couple) at his home and when it was going to be the first time for the mother to meet the Respondent since their marriage in 1972, the Respondent left for England the day after the ceremony instead of rearranging her departure. On her return from Australia she made allegations of adultery against him which he denied. All this was very embarrassing to him which eventually led him to leave the matrimonial home. It was only after this he says that he commenced to live with the woman he was accused of living with.

The Petitioner said that his main concern is his son as he did not want his son to be "hurt". He said that he "will do everything for him until he can stand on his feet". The son who is 17 years of age is with the Respondent at present.

In regard to the Respondent's conduct the Petitioner called his cousin BULU BIU KIMALEYA a Secretary, to testify on his behalf. She corroborated the Petitioner's evidence on some of the matters raised by him particularly as to how uncooperative she had been in regard to supporting her husband in fulfilling his obligation as head of family. She said that it was her child which was to be adopted; also she was the one accused of stealing the Respondent's dress.

The Respondent in opposing the Petition testified that their marriage was a happy one and they had acquired one property in England and one in Fiji in September 1990. She said that the relationship did not really deteriorate between them but the fact was that they lived so long overseas and after returning to Fiji she had to face "new things" such as "family traditional ways" which were "new to us". The meetings were normally held on Saturday mornings when shopping had to be done and in fact she was not required to contribute in the meetings. She said that she respected the gathering and not that she did not want to participate.

About the missing clothes she said that she was not told that the Petitioner had given them to his sister. She said that every time she went away she arranged with her niece to assist in the house. The Respondent said that when she returned from overseas in January 1991 she heard about his association with another woman. She found out that that was so after speaking to the woman concerned. She said that after he left she tried to bring him back to live with her. She said she still wants him back and "will not divorce my husband - covenant with Lord".

Both counsel made written submissions at the conclusion of the hearing and I had had considerable assistance from their able arguments.

I would begin by stating some of the elementary principles which apply to "constructive desertion".

What constitutes constructive desertion has been stated as follows in HALSBURY'S LAWS OF ENGLAND Vol 13 4th Ed. para.585:

"585. Doctrine of constructive desertion; relationship to behaviour. Desertion is not to be tested merely by ascertaining which party left the matrimonial home first. If one spouse is forced by the conduct of the other to leave home, it may be that the spouse responsible for the driving out is guilty of desertion; so, for example, if a husband without just cause or excuse persists in doing things which he knows his wife will probably not tolerate, and which no ordinary woman would tolerate, and then she leaves, the husband will have deserted her whatever his desire or intention may have been. There is no substantial difference between the case of a man who intends to cease cohabitation and leaves his wife, and the case of a man who, with the same intention, compels his wife by his conduct to leave him. This is the doctrine of constructive desertion."

It is further stated (ibid para. 585) that:

"It is to be observed that conduct by the respondent amounting to constructive desertion will, in the nature of things, constitute behaviour which is such that the petitioner cannot reasonably be expected to live with the respondent ..."

It has been recognised as early as 1864 that where one spouse behaves in such a way that the other is virtually compelled to leave, the former may be in law the deserter (GRAVES v GRAVES (1864), 3 SW & Tr. 350); in such a case the spouse who intends to bring cohabitation to an end or whose conduct causes the separation is said to be in constructive desertion.

A spouse who "orders the other to leave will be in desertion if the circumstances reasonably lead the other to believe that the command was meant and he acts upon it". (BROMLEY'S FAMILY LAW 6th Ed. p. 218 - 219).

In the case of constructive desertion the same four elements are present as in simple desertion: "there is a de facto separation, the eviction shows an animus deserendi, the facts negative any consent on the part of the spouse evicted, and there will be no desertion if the evictor had good cause for barring the other from the matrimonial home" (BROMLEY ibid p. 219).

It is necessary in cases of constructive desertion to prove both the 'factum' and the 'animus' on the part of the spouse charged with desertion.

I now turn to the question of whether the conduct of the Respondent was capable in law of amounting to constructive desertion. On the evidence, in my view, the answer to this is in the negative.

The Petitioner, in a nutshell, has alleged that the Respondent's conduct had driven him out and that it amounts to constructive desertion on her part. The Respondent has denied this allegation.

I have outlined hereabove the gist of the evidence adduced in this case. To succeed, the petitioner has to establish constructive desertion within the meaning of the tenor in section 15 of the Act. In this case it is for the court to decide whether the Respondent's conduct was such that or the words alleged to have been used were such that the petitioner was "compelled to move out of the matrimonial home" (to use his own words) and which finally conclusively and effectively showed an intention by the respondent to expel the petitioner from the matrimonial home.

Section 14 of the MATRIMONIAL CAUSES ACT CAP. 51 (hereafter referred to as the "Act") provides for grounds for dissolution of marriage and in s. 14(6) under which this action is brought states:

"14. Subject to this part, a petition under this Act by the party to a marriage for a decree of dissolution of marriage may be based on one or more of the following grounds:-

(a).....

(b) that, since the marriage, the other party to the marriage has without just cause or excuse, wilfully deserted the petitioner for a period of not less than 2 years; ..."

AND Section 15 of the Act defines the term "constructive desertion" as follows:-

"A married person whose conduct constitutes just cause or excuse for the other party to the marriage to live separately or apart, and occasions that other party to live separately or apart, shall be deemed to have wilfully deserted that other party without just cause or excuse, notwithstanding that that person may not in fact have intended the conduct to occasion that other party to live separately or apart."

On what constitutes 'constructive desertion', SIR JOCELYN SIMON P in SAUNDERS v SAUNDERS (1965) 1 AER 838 at 841 has stated:

"The generally accepted test of what conduct amounts to constructive desertion is this: has the defendant been guilty of such grave and weighty misconduct that the only sensible inference is that he knew that the complainant would in all probability withdraw permanently from cohabitation with him, if she acted like any reasonable person in her position. So stated, factum and animus and, indeed, absence of consensuality are intimately bound up. Unless the conduct is so grave and weighty as to make matrimonial cohabitation virtually impossible, the defendant cannot know that his wife will reasonably withdraw from cohabitation. Unless the conduct is of such a nature as to overbear the complainant's willingness to remain in cohabitation, her withdrawal will have an element of consensuality." (underlining mine for emphasis).

Upon a careful analysis of the evidence of the Petitioner including instances of her conduct which he alleged "compelled" him to leave the matrimonial bedroom, I do not consider that they meet the test of "grave and weighty" misconduct as applicable to 'constructive desertion' and in this regard I agree with Mr. Seru's submissions. I would hereafter consider briefly these instances.

The striking feature of this case is that the parties lived on good terms for close on to 20 years both overseas and in Fiji (since 1984) until the petitioner left the matrimonial home in February 1991. It was only in 1991 that the marriage allegedly broke down when the wife it is alleged by the petitioner did not adjust herself to living with the "extended family unit" and abide by traditional demands particularly in failing to adjust to the petitioner's high expectations that she would tow the line with him as far as his duties to his clan are concerned as its head. What I have already stated hereabove led to all the quarrels between them coupled with the petitioner's association with the woman referred to hereabove culminating in the petitioner leaving the matrimonial home. The petitioner was not happy with the manner in which she confronted the said woman in her attempt to ascertain the position about his involvement with her. It is borne out from the Discretion Statement that he met this woman in 1990 and commenced living with her in adultery in the very month, namely, February 1991, he left the matrimonial home allegedly because of respondent's conduct as outlined hereabove.

As Mr. Seru says, and I agree, that the instances outlined by the Petitioner fall short of the test provided in SAUNDERS (supra). My comments on the Petitioner's complaints are as hereunder. The complaint (a) about the Respondent not taking part as expected on Saturday morning meeting: it is clear that here she is not required to do any talking as according to Fijian custom it is the men who do all the talking in such meetings; (b) about her travelling overseas leaving the child and Petitioner to themselves: this was done with Petitioner's consent and approval; (c) about her "moodiness" during her University studies: it is understandable as it was only to be expected at times; (d) about her telling him to leave the matrimonial home: it was because of her discovery in relation to his association with another woman. That reaction is what is expected in such circumstances; (e) about her relationship to members of his family and her attitude towards her mother-in-law: these I would say are matters which relate to "wear and tear" of married life. In this regard the wife disagrees with the Petitioner and says in effect that it is to the contrary, namely, that the relationship with family members was good and that affection for her mother-in-law was there as on her return from UK she brought her a wooden suitcase. In any case, although one would expect a cordial relationship with other family members, to expect her to please all and sundry, as in this case, is not to be expected of her as her marriage is to the Petitioner and her marital obligations are towards him much more than to anyone else; (f) about the manner of confrontation with the other woman and his remark that if she proceeded to confront he will leave the matrimonial home: this gave rise to her remarks for him to "find another woman" as that woman is married with 7 children. Again these remarks are to be expected on the spur of the moment upon discovering his extra-marital affairs.

This indeed is a very sad case with, on the one hand, the Petitioner feeling that he is not getting the cooperation of his wife in his public life and on the domestic front and, on the other hand, there is the wife who after 20 years of Western-style living overseas finding difficulty in adjusting to "communal" life with attendant traditional obligations according to Fijian custom and to top it all up her predicament upon discovering the Petitioner's involvement in extra-marital affair.

No doubt it is the obvious duty of spouses to live together. Here because of the several instances stated hereabove the Petitioner has left the matrimonial home and blames the wife for bringing all this about resulting in the breakdown of marriage. It is obvious from the facts and upon the application of the law on the subject of constructive desertion, he has not shown just cause for leaving. As LORD DENNING said "we are not at liberty to grant a divorce simply because a marriage has untimely broken down" (HOSEGOOD v HOSEGOOD in BUCHLER v BUCHLER 1947 p. 25).

On the facts of this case, in my view, this is a clear case of "ordinary wear and tear of conjugal life". The situation such as here has been succinctly put by ASQUITH L.J. in BUCHLER v BUCHLER (1947) P. 25 at 74 where he said:

"Constructively, the deserter may be the party who remains behind, if that party has been guilty of conduct which justifies the other party in leaving. To afford such justification the conduct of the party staying on need not have amounted to a matrimonial offence, such as cruelty or adultery. But it must exceed in gravity such behaviour, vexatious and trying though it may be, as every spouse bargains to endure when accepting the other "for better, for worse". The ordinary wear and tear of conjugal life does not in itself suffice.... It may, no doubt, be galling - or, in some sense of the word, humiliating - for a wife to find that the husband prefers the company of his men friends, his club, his newspaper, his games, his hobbies, or indeed his own society, to association with her, and a husband may have similar grievances regarding his wife.

But this is what may be called the reasonable wear and tear of married life, and if it were a ground for divorce, a heavy toll would be levied on the institution of matrimony".

Among other things, in considering this Petition I have borne in mind the following statement of LORD GREENE M.R in BUCHLER v BUCHLER (supra) at p.28 which is apt:

"Where the desertion alleged is constructive desertion, it is particularly important to see that the circumstances necessary to constitute that offence are present before the final step of dissolving the marriage is taken by the court. It would, I venture to think be unfortunate if, under the guise of alleged constructive desertion, a new cause for divorce should imperceptibly creep into our law."

I quote further from LORD GREENE M.R's judgment from which it is made abundantly clear applying the principles applicable, that on the facts of this case the Petitioner has no hope of succeeding. I refer to the following passages (vide BUCHLER (supra) ibid p.29:

"Incompatibility of temperament or unhappiness in the marital relationship which is not caused by cruelty are not, by themselves, grounds of divorce: nor by themselves do they entitle the spouse affected to leave the matrimonial home and then to claim that the other spouse, even if he or she is alone to blame for the ill-success of the marriage, has been guilty of the grave matrimonial offence of desertion. It is as necessary in cases of constructive desertion as it is in cases of actual desertion to prove both the factum and the animus on the part of the spouse charged with the offence of desertion. The practical difference between the two cases lies in the difference in the circumstances which will constitute such proof. In actual desertion the spouse charged must be shown to have abandoned the matrimonial consortium in fact, and to have done so with the intention of deserting. In constructive desertion the spouse charged must be shown to have been guilty of conduct equivalent to "driving the other "spouse away" (per Bucknill J. in Boyd v. Boyd (2) from the matrimonial home and to have done so with the intention of bringing the matrimonial consortium to an end. In each case the intention may, of course, be inferred if the circumstances are such as to justify the inference".

LORD GREENE M.R. (at p.30) goes on to say in regard to what amounts to acts of expulsion:

"In the case of actual desertion the mere act of one spouse in leaving the matrimonial home will in general make the inference an easy one. In the case of constructive desertion where there is no such significant act as a departure by the spouse who is alleged to be in desertion, the acts alleged to be equivalent to an expulsion of the complaining spouse must be of such gravity and so clearly established that they can fairly be so described. If they do not satisfy this test, not only is expulsion in fact not proved but it is not legitimate to infer an intention to desert. A man may wish that his wife will leave him: but such a wish, unless accompanied by conduct which the court can properly regard as equivalent to expulsion in fact, can have no effect whatever. Conversely, where the conduct of the required nature is established, the necessary intention is readily inferred since no one can be heard to say that he did not intend the natural and probable consequences of his acts: (Sickert v. Sickert (I)). The crucial matter for consideration therefore is the nature of the conduct relied upon as equivalent to an expulsion of the complaining spouse.

It must, I think, be accepted that the acts sufficient to satisfy this test must be of a serious and convincing nature."

Further at p.30 he continues to state:

"But the necessary conduct must, from the very nature of the offence of desertion, obviously be of a grave and convincing character. Whether in any given case this requirement is fulfilled is, I think, a question of fact upon which a jury would require to be carefully directed. It would be for the judge to say whether the facts were capable of being regarded as equivalent to an expulsion from the matrimonial home."

On what amounts to expulsive conduct and whether the words are intended to be final and conclusive LORD MERRIMAN, P in LANE v LANE (1951) p. 284 at 288 has said:

"Each case must be judged on its merits. The wife, of course, must prove that the husband means, and continues at all material times to mean, what he says; if not, she fails: she cannot simply take him at his word if he does not mean it.

Whether the husband does mean it, and goes on meaning it at all material times, or not, may be inferred from all the attendant circumstances, including antecedent conduct or words, and from any subsequent utterances, writings or events which throw light on his intention. In deciding the matter, I think that the question whether in all the circumstances the words used are reasonably capable of bearing what I will call an expulsive meaning, is one of law; but if they are so capable it is a question of fact whether the husband did so mean them; that is to say, it is now for us to decide the question of law, and, if that is decided in the wife's favour, to decide further whether there was evidence to support the magistrates' decision in fact."

Upon a careful consideration of the case and the evidence and bearing in mind the principles involved and referred to hereabove I can come to no other conclusion but that the facts upon which the Petitioner relies upon are not of sufficient gravity to justify a finding that the respondent is guilty of constructive desertion. Just as the Petitioner was in his own way of thinking badly let down by the respondent in the manner he has narrated hereabove but which did not justify him leaving the matrimonial home, similarly, smarting under the shock of discovering his attachment with another woman led the wife to tell him to leave the home did not amount to a conduct of a character constituting desertion on her part. In fact she says that she wants him to return to her and in this case 'animus' and 'factum' has not been proved. On "animus" and "factum" LORD GREENE M.R. said in BUCHLER (supra) at p.45:

"As I indicated earlier in this judgment, constructive desertion requires both factum and animus and an indication by the husband to the wife that she may leave him if she likes (animus) is not enough, unless the conduct is such as to amount to an expulsion (factum). This is not, in my opinion, affected by the doctrine that a person must be taken to intend the probable consequences of his acts: for if the acts are not such as to justify the wife in treating herself as expelled from the matrimonial home no inference can be drawn from those acts of an intention to expel her. Mere wish to expel, even if it exists, without acts equivalent to expulsion is, in my opinion, insufficient to constitute constructive desertion."

To conclude, for the above reasons, I am not satisfied that the Petitioner has proved constructive desertion. As stated earlier the alleged instances of complaint all amount to usual "wear and tear" of married life. Despite adultery on the part of the Petitioner the wife still wants him back but this has not come about. Clearly this is not the case of a woman who wants to take everything and give nothing and therefore it cannot be said that her conduct has been such that she intended to bring an end to their matrimonial relationship or to expel him from their home.

The Petition is therefore dismissed with each party bearing his own costs.

D. Pathik
Judge

At Suva
9 December 1994

HBD0004J.93S