Papua New Guinea Law Reports - 1964
[1964] PNGLR 13
PAPUA NEW GUINEA
[SUPREME COURT OF JUSTICE]
HUTTON
V
HUTTON
Port Moresby
Smithers J
8 October 1962
MATRIMONIAL CAUSES - Divorce a mensa et thoro - Jurisdiction of Supreme Court to grant divorce a mensa et thoro in Papua - Beneficial nature of such jurisdiction - Matrimonial Causes Ordinance 1941-1958, ss. 5, 6, 11, 12, 13, 14, 15.
Where both parties are resident in the Territory of Papua the Supreme Court has jurisdiction to grant a divorce a mensa et thoro according to the principles and rules upon which the Ecclesiastical Courts would have acted prior to the Matrimonial Causes Act 1857 (20 & 21 Vict. c. 85).
This jurisdiction is conferred by Part II of the Matrimonial Causes Ordinance 1941-1958 and is not restricted by sections 12 to 14 of the Ordinance.
Importance of jurisdiction to grant a divorce a mensa et thoro discussed.
Summons:
The nature of the defendant’s application and the arguments of his Counsel are set out in the judgment.
Counsel:
Kilduff, for the Plaintiff.
White, for the Defendant.
SMITHERS J:  In this case the Plaintiff one Denise Hutton seeks relief as against her husband Geoffrey Hutton by way of a decree of judicial separation or a divorce a mensa et thoro.
The amended Statement of Claim makes it clear she does not allege that either she or her husband are domiciled within the area of the jurisdiction of this Court. She does allege, however, that both she and the defendant are resident within the Territory of Papua.
By summons the defendant seeks an order that the service of writ be set aside on the ground that this Court has no jurisdiction to grant a decree of judicial separation to a person not domiciled in the Territory and has no jurisdiction to grant a divorce a mensa et thoro to anybody.
(His Honour then held that the Court had no jurisdiction to grant a decree of judicial separation to a person not domiciled in the Territory and continued:)
However, I consider that this Court has jurisdiction to grant a decree for divorce a mensa et thoro to a wife who is and whose husband is resident in the Territory of Papua.
By Part II (sections 5 and 6) of the Matrimonial Causes Ordinance 1941-1958, the Court is given jurisdiction to grant a divorce a mensa et thoro unless elsewhere in the Act or Rules thereunder this jurisdiction is taken away. Section 5 says that there shall be vested in the Supreme Court jurisdiction in respect of divorces a mensa et thoro, suits of nullity of marriage, suits of dissolution of marriage, suits for restitution of conjugal rights, suits for jactitation of marriage and in all causes suits and matters matrimonial (except in respect of marriage licences).
Section 6 provides that in all suits and proceedings other than proceedings to dissolve any marriage, the Court shall proceed and act and give relief on principles and rules which, in the opinion of the Court, shall be as nearly as may be conformable to the principles and rules upon which the Ecclesiastical Courts of England acted and gave relief prior to the Imperial Matrimonial Causes Act 1857, but subject to the provisions of this Ordinance and to the rules and orders made under this Ordinance.
Mr. White does not concede that Part II does constitute a grant of jurisdiction complete in itself. The contention is that to be an effective grant of jurisdiction in respect of any subject matter referred to in section 5 there is required a provision such as section 11 setting forth grounds for dissolution of marriage and authorising certain persons to claim relief on those grounds, or section 12 setting forth grounds for a decree of judicial separation and authorising certain persons to claim relief on those grounds.
It is to be noted, however, that sections 5 and 6 constitute Part II of the Ordinance and that that part is headed “Jurisdiction”. Also, sections 5 and 6 are quite capable on their ordinary grammatical construction of meaning that the Court is endowed by those sections alone with jurisdiction in respect of the subject matters mentioned in section 5. Section 6 contains a direction to the Court that it shall give relief in respect of those subject matters according to the principles upon which the Ecclesiastical Courts acted prior to 1857.
It is also to be noted that sections 11 and 12 deal rather with grounds of relief than with a grant of jurisdiction. Their presence is to be explained by the fact that the Ecclesiastical Court did not grant divorce a vincula. Therefore, grounds for such relief cannot be found in Part II. Similarly, a decree of judicial separation is a novelty and its grounds cannot be found in Part II. In respect of these subject matters separate provisions such as are found in sections 11 and 12 were essential. Not so, however, in respect of the subject matters known to the Ecclesiastical Court. Thus jurisdiction in the Supreme Court of this Territory in respect of nullity and restitution of conjugal rights is undoubted (see section 15), but there are no sections standing in the same relation to those subject matters as sections 11 and 12 stand in relation to dissolution of marriage and judicial separation. Jurisdiction in nullity and restitution of conjugal rights rests squarely on Part II. There is no reason for thinking that jurisdiction with respect to divorce a mensa et thoro should not be similarly based.
I therefore see no reason for rejecting the ordinary grammatical meaning of these sections.
Mr. White also contends that sections 12 to 14 are to be interpreted as impliedly expressing an intention on the part of the legislature that those sections are to “cover the field” of relief by way of separation within the marriage bond and as restricting the grant of jurisdiction in Part II accordingly. This argument has force because, since 1857 in most jurisdictions, divorce a mensa et thoro has been abolished and the decree of judicial separation is regarded as having taken its place. Nevertheless, the Papuan Ordinance is the material document which governs this case and it is by its terms that the matter must be decided.
It is to be observed in the first place that there is in the Ordinance no express abolition of divorce a mensa et thoro or prohibition of that class of relief. In this respect the Ordinance differs from the Matrimonial Causes Act 1864 (28 Vic. No. 29) of Queensland by which no doubt this Ordinance was to some extent inspired. See section 2 of that Act. A similar express provision appears in the Victorian Marriage Act, now section 67 of the Act of 1958.
So far as sections 12, 13 and 14 are concerned they are positive in form and relate only to persons domiciled in the Territory. They provide for relief by way of a decree for judicial separation on at least one ground not available to a spouse seeking a divorce a mensa et thoro in the Ecclesiastical Court. Namely ground “(d) failure to comply with an order for restitution of conjugal rights”. See Graveson “A Century of Family Law” p. 314 and Hals. 3rd Ed. p. 286 para. 559. The section itself recognises that the grounds (a) to (d) do not coincide with the grounds on which a divorce a mensa et thoro might have been granted. It expressly adds to grounds (a) to (d) “(e) Any grounds for which a divorce a mensa et thoro might have been pronounced prior to the Matrimonial Causes Act 1875”. It is not without precedent that the grounds for relief by way of judicial separation available to claimants domiciled in the lex fori are more generous than those available to claimants for such relief who are merely resident therein. See Matrimonial Causes Act N.S.W. 1899-1957, sections 31 and 32. Rational reasons are available to support such a law.
If the precise terms of the Ordinance are read without attributing restrictive implications to sections 12 to 14, then the Ordinance succeeds in substance in enacting such a law. In cases where spouses are resident but not domiciled in the Territory they may have relief by way of a divorce a mensa et thoro on traditional grounds, but domiciled spouses may have relief by way of judicial separation on wider grounds.
It appears therefore and is important that whatever view is taken as to the existence or otherwise of jurisdiction to grant a divorce a mensa et thoro sections 12 to 14 have work to do. The argument that it is intended to cover the whole field of what one may call separation within the bonds of marriage is therefore weakened.
A divorce a mensa et thoro was considered by the Ecclesiastical Courts appropriate for a spouse resident in the jurisdiction. See Armytage v. Armytage[xiii]1. This was for the very good reason that:
“According to the principles and rules upon which the Ecclesiastical Courts gave relief cruelty and adultery were grounds for a sentence of divorce a mensa et thoro which did not dissolve the marriage but merely suspended either for a time or without limitation of time some of the obligations of the parties.”
See page 195. The relief had relation to the current circumstances of the lives of the spouses at the place where they were residing. It was available to give urgent relief to a spouse actually in the jurisdiction from wrongs being currently suffered in the jurisdiction and for the protection of one spouse against another so long as they remained in the jurisdiction.
Every practical consideration points to the necessity of such jurisdiction in the Court of any community. Spouses in physical peril or suffering humiliation through adultery in the place of residence should not be without a remedy in the forum of their residence. The Court of Domicil may be far away and inaccessible to an injured spouse. Relief is given in the forum of the residence with full recognition of the maintenance of the matrimonial bond which is the concern of the Domicil.
It frequently happens that married persons live in this Territory for the best part of their married lives but never acquire a domicil in the Territory. In such cases resort to the court of the domicil by the ordinary spouse for the purposes of the kind of relief under discussion is quite unrealistic.
In my opinion, therefore, (a) Part II gives the Court jurisdiction to grant a divorce a mensa et thoro according to the principles and rules upon which the Ecclesiastical Court would have acted prior to 1857; (b) there is no compelling or persuasive reason to consider sections 12 to 14 as restrictive of the grant of jurisdiction contained in Part II; (c) having regard to the beneficial nature of the existence of the jurisdiction to grant a divorce a mensa et thoro the plain words of Part II should only be modified by an equally plain express or implied provision and none such is to be found; (d) the Ecclesiastical Court would give relief where both parties were resident in the jurisdiction.
Accordingly, I think the Court has jurisdiction and the summons will be dismissed.
Summons dismissed.
Solicitor for the Plaintiff: Stan Cory and C. F. Kilduff.
Solicitor for the Defendant: Norman White.

[xiii](1898) p. 178.