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Robert v Jim [2022] PGDC 110; DC9039 (15 February 2022)

DC9039

PAPUA NEW GUINEA

[IN THE DISTRICT COURT OF JUSTICE

SITTING IN ITS FAMILY COURT JURISDICTION]

FC 168 of 2021
BETWEEN

REGINA ROBERT
Complainant

AND

WINNIE JIM & SANDRA JAMES
Defendants

Lae: J Morog

2022: 25 Jan & 15 Feb 

CIVIL- Action for adultery – status marriage – dissolution of – partner of status marriage calls it quit – cohabitation with another women – failure to discharge burden of proof on act of adultery.

Cases Cited
Kopland Oa & Esther Korua –vs- Nelson Korua [1999] PGNC 69; N1871
Pondrilei v Tau [2008] PGDC 102; DC823

References
Adultery & Enticement Act
District Courts Act
Marriage Act

Counsel

Complainant, for the In Person

Defendants, for the In Persons

Lae, 2022

1. J Morog : This is an action for adultery where the complainant claims that she is still married to the first defendant when he committed adultery with the second defendant.

2. The first defendant denies that he was married to the complainant at all material times. He says that the complainant left him for almost six years and so he moved on with his life with the second defendant and they have solemnized their marriage under the Marriage Act which is evidenced by their Marriage Certificate provided in Court.

3. This is a case where I take guidance from a similar case which was disposed of in the District Court upon the application by the defendants that the complainant failed to disclose a cause of action. The case of Pondrilei v Tau (2008) DC 823.

4. In Pondrilei’s case, the complainant lived with the first defendant for 22 years as married couple and they had grown up children and while in that relationship the defendant husband entered into a statutory marriage with the second defendant on 27/12/06 which was evidenced by a certificate of marriage. The complainant sued for adultery that was alleged to have taken place on the 28/12/06.

5. The Court in that case saw no problem with dealing with the case on the basis of “status marriage’ that subsisted. However, due to the certificate of marriage the court lacked jurisdiction to decide on the voidability of the statutory marriage. Especially where the alleged adultery happened after the solemnization of the marriage. So, the court transferred that case to the National Court to deal with the matter.

6. In the case at hand the complainant and the first defendant met in 2014 and decided to get married. While the complainant was pregnant with their first child she went to Mt Hagen to attend to her mother’s funeral in 2015. After the burial of her mother the complainant remained in Mt Hagen, for various reasons, until 2021. In July 2021 she came to Lae and now pursuing her compliant of adultery which is the case before me now.

7. Meanwhile, the defendants met in 2017 and cohabited as couple since and the second defendant clearly deposed that she knew that the first defendant was free, not married when they met.

8. When the complainant came back in July 2021 and was pursuing her claim for adultery with the local committees the defendants solemnized their marriage in September 2021 and their Marriage Certificate is produced in Court.

9. I ask the first question whether the complainant was married to the first defendant. It seems that the complainant and the first defendant had what was referred to in the Pondrilei case as ‘status marriage’. Unlike statutory marriage or customary marriage, status marriage does not seem to have a recognized way of dissolving it.

10. The first defendant contends that he was deserted by the complainant for about five to six years and so he decided take the second defendant as his wife which he did. The second defendant says that she met the first defendant in 2017 and they have cohabited since then until they solemnized their marriage in September 2021.

Law

11. Section 2 of the Adultery & Enticement Act 1988 (the Act) defines the act of adultery where a spouse engages in voluntary sexual intercourse with a person other than his or her spouse. A spouse includes a party to a relationship between a man and a woman which can reasonably be considered as subsisting relationship having the status of a marriage as defined by section 1 of the Act.

12. Section 19 of the Act says the complainant has to prove his or her case on the balance of probabilities.

13. In the case of Kopland Oa & Esther Korua –vs- Nelson Korua Unreported Numbered Judgment by Injia J (as he then was) the Court said the complainant has to establish that there was a subsisting marriage as a first and foremost. The further outlined the three types of marriage namely statutory marriage, customary and status marriage. The last being regarded as such in light of the definitions of a spouse and the act of adultery under the Act.

Finding

14. I find that there was neither statutory nor customary marriage between Regina Robert and Winnie Jim except a brief status marriage in 2014 when they lived together before Regina left for Mt Hagen while pregnant.

15. In statutory marriages the Marriage Act provides for the processes for its dissolution while in customary marriages are dissolve under the parties’ custom and the District Court issues the certificate of dissolution of customary marriage under section 22A of the District Courts Act. In this case of ‘status marriage’ there is no clear legal pathway of dissolving such relationships.

16. The fact I find in this situation is that the Winnie Jim felt and decided that Regina deserted him for five to six years and he found a new wife and that was tantamount to Winnie calling it quits of whatever relationship he had with Regina (status marriage).

17. In 2017 when he cohabited with Sandra James then the concept or principal of presumed marriage applied hence a new status marriage. While they were living together Regina came to Lae in July 2021 and raises the issue of adultery.

18. I also find and say here that Regina does not clearly identify the instance(s) of sexual intercourse by the defendants which the onus is on her to establish. Rather, she premises her claim for adultery on the presumption that since they were living together as a couple, they have committed adultery. The law is clear that he who alleges must prove that allegation by lawful evidence.

19. I find also that Regina complains of adultery prior to the solemnization of statutory marriage between the defendants. That distinguishes this case from the case of Pondrelei so I have jurisdiction to hear the case and decide on the issue of adultery.

20. It suffices that the complainant has not discharged her burden of proof on the following questions;

1. Whether she had a subsisting marriage with the first defendant; and
2. Whether her spouse had voluntary sexual intercourse with the second defendant prior to September 2021; and

21. The first defendant clearly deposed that he decided to end their status marriage during the years between 2015 and 2021 when they were not cohabiting as a couple.

22. Furthermore, in relation to the second defendant she had honest and reasonable believe that the Winnie Jim was not married and she entered into relationship with him. Therefore, section 9 (1) (c) of the Act applies in her (Sandra James) defence.

Orders

The court finds the defendants not liable/guilty for adultery

The case is dismissed.

Complainant In Person

Defendants In Person