Papua New Guinea Law Reports - 1976
[1976] PNGLR 433
N62
PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]
HILL
V
HILL
Waigani
Prentice DCJ
22 September 1976
5 October 1976
MATRIMONIAL CAUSES - Dissolution of marriage - Grounds - Separation - Bars to relief - Harshness and oppression - Public interest - Religious beliefs of respondent not of themselves bar to relief - Failure of respondent to pay maintenance - Relevant considerations - Matrimonial Causes Act 1964 s. 30 (2).
The respondent to proceedings for dissolution of marriage on the ground of separation asked for the petition to be dismissed on the grounds that because of her religious beliefs it would be harsh and oppressive to her to be granted and also that it would be contrary to the public interest, as provided by s. 30(2) of the Matrimonial Causes Act 1964.
Held
(1)      In the particular circumstances of the case, the considerations arising from the respondent’s religious convictions alone would not render a decree of divorce “harsh and oppressive” to her; they should, however, be considered in association with other factors as a possible bar to relief.
McDonald v. McDonald (1964) 6 F.L.R. 58 at p. 69 followed.
Macrae v. Macrae (1967) 86 W.N. (Pt. 2) N.S.W. 121 not followed.
(2)      In all the circumstances, including the petitioner’s conduct over many years and during separation, his adulteries and failure to maintain his family, the religious beliefs of the respondent, the possible diminution of the respondent’s security should the petitioner be unable to meet any maintenance order, and the public interest in allowing the termination of hollow marriages and legitimating de facto husband and wife relationships, it would not be harsh and oppressive to the respondent or contrary to the public interest to make the decree sought.
(3)      It was just and proper in the circumstances for the petitioner to provide continuing maintenance for the respondent in the sum of K15 per week.
Trial
These were proceedings for dissolution of marriage on the ground of separation and in which the respondent wife sought dismissal of the petition on the grounds provided in s. 30 (2) of the Matrimonial Causes Act 1964, that it would be harsh and oppressive to her and contrary to the public interest for the decree to be granted.
Counsel
JA Griffin for the petitioner husband
LK Young for the respondent wife
Cur. adv. vult.
5 October 1976
PRENTICE DCJ:  The petitioner asks this Court for the exercise of its discretion (in the light of matters disclosed in a statement filed), to grant him a decree of divorce on the ground of separation, as allowed by s. 21 (m) of the Matrimonial Causes Act No. 18 of 1964.
I am satisfied that the parties to the marriage have been separated and thereafter lived separately and apart for a continuous period of more than five years immediately preceding the petition. I am satisfied from the facts which it will be necessary for me to set out in some detail later, that there is no reasonable likelihood of cohabitation between the parties being resumed, because of the attitude of the petitioner and another association of a long-standing nature which he has engaged in.
The respondent wife in her answer, asks for the petition to be dismissed on the grounds that it would be harsh and oppressive to her and contrary to the public interest that it be granted. The matters relied on for the latter ground of opposition are applied also to the first, with this addition in the case of the first — that she urges her religious beliefs in aid. She, in other words, seeks to rely on s. 30 sub-s. 2 of the Act.
The respondent is a practising Catholic; and she states that her attitude throughout the years since her husband left her has been informed by and based upon the advice of her parish priest. I may say at once that the respondent impressed me as a truthful witness. She states that she believes that her husband when he left her, had a problem with alcohol; and she has obviously continued and continues, to believe that she will be able to assist him through her loving attentions, in the difficulties she believes he will face. She believes that they will yet come together. Her belief is bolstered by similar cases of long estrangement she has heard of, which have ended happily. I am prepared to accept that she is completely genuine in her attitude and that there is no element of what is commonly called a “dog in the manger” outlook. I do not believe that she seeks to prevent her busband gaining happiness through contracting a legal marriage with another woman (with whom he is living) merely because she herself has been made wretchedly unhappy by, as she would say, his conduct in the past.
The ground (m) in the Papua New Guinea Statute is similar to that in s. 38 (m) of the Matrimonial Causes Act of the Commonwealth of Australia 1959-65. That section has been the subject of consideration by many of the Australian Courts. I know of no case where an argument founded on religious belief alone, has yet succeeded in Australia in grounding “harshness and oppression”. In Macrae v. Macrae[cdlxxxv]1 Herron C.J. expressed the opinion that the religious views of a respondent on divorce could never be a relevant consideration in a petition on this ground. Following his view previously expressed in McDonald v. McDonald[cdlxxxvi]2 he found such a consideration opposed to the policy of the Australian Act.
In the same case Sugerman J.A. at p. 137 collated the opinions of other judges as to whether opposition on religious grounds could establish harshness and oppression. After pointing out that each decision was on its own particular circumstances, he summarized as follows:
“... although there might be special cases in which the overriding of a religious objection could amount to harshness and oppressiveness this is not so in general, but the religious objection may be a fact to be taken into account with other circumstances. ...”
He went on to conclude on this point:
“... In my opinion the mere circumstance that a respondent feels constrained on religious or any other grounds to reject the advantages which, in the public interest, the legislature offers to him or her, to oppose the suit because of an objection to the institution of divorce, and to continue to treat himself or herself as married to the petitioner notwithstanding the dissolution of the marriage, does not of itself make the granting of a decree harsh and oppressive. To conclude otherwise would be, not to have regard to ‘the particular circumstances of the case’ but to reduce the scope of the ground of separation under s. 28 (m) by reference to a general argument which might be advanced against sanctioning dissolution on such a ground. This argument was no doubt considered and overruled before the ground was placed on the statute-book....”
Walsh J.A. (as he then was) stated at p. 142:
“... But the tendency of the cases has been to indicate that, generally speaking, the existence of such beliefs, however sincere and strong they may be, would not be regarded as affording much reason for holding that the granting of the decree would be harsh and oppressive. A statement to that effect is hardly to be considered as the enunciation of a rule as to the interpretation of the provision. It is really rather a statement of fact. The real justification for it, I think, is that the consequences to the respondent, consisting of the breaking up of the marriage by a guilty party, the loss of the personal and social benefits which a married woman may enjoy, the solitary existence of a person who cannot in conscience remarry, the disregard by the other spouse of vows which the respondent holds sacred, are all things which have occurred and will continue whether the decree is granted or not. Such additional consequences as flow solely from the granting of the decree, although they may be distressing to the respondent, will frequently not be of such a serious character that the granting of the decree can be considered because of them to be harsh and oppressive to the respondent. ...”
In a comparable section of the United Kingdom Act a decree of divorce on the ground of separation for five years shall be refused if it be shown that dissolution of the marriage would result in “grave financial or other hardship” to the respondent. In Rukat v. Rukat[cdlxxxvii]3 the Court of Appeal held that the view of the respondent wife (a Sicilian Roman Catholic) on the religious aspects of divorce and its consequence to a person living in Sicily did not in the circumstances of that case amount to the “grave other hardship” that was required to be shown. Lawton L.J. (at p. 210) stated that as far as he and counsel knew, no defence of such hardship had since the passage of the United Kingdom Act in 1969, succeeded to that point of time. The members of the Court however, seemed to leave open the possibility that evidence could be led in an appropriate case to demonstrate a combination of religious belief with social conditions that could result in a decree for divorce being held to constitute “grave other hardship” to an innocent respondent.
I would not wish to adopt Herron C.J.’s interpretation of the Australian section as appropriate to Papua New Guinean conditions — more particularly as no argument has been directed to me as to the possible differentiating social factors obtaining here. However, I would find difficulty as at present advised in making an interpretation of the Papua New Guinea section on a basis other than that adopted by Sugarman J.A. and Walsh J.A. I do not consider that the evidence in this case establishes that in the particular circumstances of the case (and this is what the section requires me to adjudge) the considerations arising from the respondent’s religious convictions alone would render a decree of divorce “harsh and oppressive” to her. I consider that I should nevertheless consider these matters in association with those others that are evidenced.
The parties were married according to the rites of the Catholic Church at Hobart in 1947; the petitioner was then aged 22 years, the respondent 24 years. They lived at various places in Tasmania until 1959 when the petitioner left the matrimonial home. There were born to them two boys, who are now 28 and 24, married and self-supporting. The petitioner left the home leaving debts behind him. He was made bankrupt in 1961, apparently for the amount of £48,000.
As the wife was receiving no maintenance from the petitioner for herself and the children, she sought and obtained a maintenance order in May 1960. Amounts of $24.00 per week for herself and $12.00 for each child were ordered to be paid. Thereafter numerous summonses were taken out to enforce maintenance orders; in December 1960, June and August 1961 in Tasmania. In October 1961 the orders were registered in New South Wales where the petitioner was then living. Further summonses to enforce orders followed, in July 1962 and February 1963. In April 1963 the Official Receiver was asked to recover arrears. In August 1963 the orders had been reduced because the petitioner’s earnings had lessened. Further enforcement summonses followed in June 1964, April 1965, June 1965; a warrant to commit in November 1966; summonses in March 1967, June 1967, March 1968; a further warrant to commit in October 1969 and a summons in the same month.
The petitioner states that he made application for a quashing of the maintenance orders following a heart attack in 1970 and an ensuing illness. He said that he believed the order had been quashed. The petitioner went to Papua New Guinea in 1972. It appears that he made no payments of maintenance after 1970. It was explained that between 1960-1975 amounts totalling $14,000.00 had been incurred by way of maintenance. From 1970-1975 the respondent was unaware of the petitioner’s address; but in April of that year the maintenance order was registered in Rabaul. As at June 1975 the arrears then current were $3,064.19.
In December 1975 this case was listed before Saldanha J. when the respondent asked for an adjournment. Since then the petitioner has made payment by way of maintenance into Court totalling K2,376.18, leaving $1,087.25 still unpaid. The petitioner proposes eliminating these arrears by ten monthly instalments concluding in January 1977.
The petitioner apparently lived with another woman in Tasmania between April 1959 and August 1960. In February 1962 he took up living with Jacqueline Alma Watts who has since changed her name by deed poll to Hill. They continue to live as man and wife. He desires to marry her if free to do so.
I have given consideration to the course of the conduct of the petitioner over many years, religious beliefs of the wife, possible diminution of the wife’s security if the petitioner becomes unable to meet any maintenance order I might make. I have had regard to the petitioner’s conduct during the separation, his adulteries and failure to maintain his family.
I have had regard to what have come to be known as the Blunt v. Blunt[cdlxxxviii]4 considerations — that there may be a public interest in allowing the termination of hollow marriages and legitimating de facto husband and wife relationships. I have done this though I believe a great deal of water has flowed under the bridge since Blunt v. Blunt. I think that where no questions of legitimacy or maintenance of children are concerned, society generally nowadays may be taken to have little interest in seeing a hallmark of legitimacy and the law’s forms being made available to shackle existing human relationships; when perhaps the only real result might be the creation of a further complication of mutual property interests. Assuming the appropriate legislation continues in being in Papua New Guinea, it may become necessary for the Court to re-think its attitudes in the light of the social conditions which develop.
I may say I find myself with the greatest sympathy towards the respondent wife. I believe I may properly extend to her the sentiments expressed by the Full Court of South Australia in Painter v. Painter[cdlxxxix]5. If, as I am sure she is, the respondent “is genuinely convinced the marriage tie indissoluble by human judgment the decree will not alter her belief or position — she can disregard it”.
As at present I find myself unable to come to conclusion that the factors particular to this case go beyond those in the “ordinary run-of-the-mill cases” spoken of by Walsh J.A.; and are such that it would either be harsh and oppressive to the respondent or contrary to the public interest that a decree should be made on the ground of separation.
Subsection 30 (3) of the Papua New Guinea Act reads as follows:
“Where, in proceedings for decree of dissolution of marriage on the ground of separation, the Court is of opinion that it is just and proper in the circumstances of the case that the petitioner should make provision for the maintenance of the respondent or should make any other provision for the benefit of the respondent, whether by way of settlement of property or otherwise, the Court shall not make a decree on that ground in favour of the petitioner until the petitioner has made arrangements to the satisfaction of the Court to provide the maintenance or other benefits upon the decree becoming absolute.”
Mr. Young, for the respondent, says that if I find the ground established and find against the existence of a bar under s. 30 sub-s. 2 of the section, it would be just and proper that I should make an order for maintenance for the respondent in association with a decree for dissolution of marriage.
The respondent wife has a pension payable to her as a T.P.I. war pensioner of at present $68.00 per week, and when it is let, a rental of $20 per week from letting portion of a property which she has fortunately inherited from her uncle. She is unable because of her health and age to accept employment; but has managed herself to effect repairs to her property, which is now worth some $20,000. She has currently some heavy repair bills outstanding on the house. She has bought a car for $4,000 on a personal bank loan. It is 17 years since she last had a holiday, and she still owes some fees on the boys’ schooling. In her husband’s bankruptcy she was allowed to keep some furniture. Her household appliances are worn and in need of replacement.
It is clear that the respondent has had a hard time bringing up the boys. For years she received no assistance from her husband for herself and them. Her present situation as to assets may truly be said to owe nothing to the efforts of her husband.
The petitioner has a small war pension of $11.20 per week. He is employed by W. R. Carpenter and Company at K206.00 per week and is allowed a K5,000 travelling allowance from which he must pay his expenses when travelling in Papua New Guinea as a company auditor. He has personal debts totalling K3,500. He rents his residence from his employer for K20.00 per week. Jacqueline Alma Hill, with whom he lives, is at present employed, but he expects that her position will soon be localised and she will lose her job.
Mr. Young submits that a figure of maintenance of $25.00 should be substituted for that claimed in the respondent’s answer. Mr. Griffin contends that the respondent is comfortably off and could further improve her financial position by re-arranging her car purchase. She is better off than the petitioner, he contends. He opposes the making of any order for maintenance. I consider that the history of the relations of the parties, the conduct of the petitioner on the one hand and the respondent on the other over the years, and their respective positions in life financially and generally, are such that it is just and proper that the petitioner should provide continuing maintenance for the respondent. I consider an appropriate amount to be one approximating that asked for in the answer and that if I were to make an order in that regard s. 30 sub-s. (3) would be complied with. I find the petitioner domiciled in Papua New Guinea under s. 18 (6) of the Act.
I find the issues of marriage and separation in the affirmative. I am satisfied that there are no children of the marriage to whom s. 64 applies. In the exercise of my discretion in that regard I make a decree nisi for dissolution of the marriage. I order that the petitioner pay to the respondent K15.00 per week for her maintenance. Being satisfied (with some doubt) that there are special circumstances why I should do so, I order that the period at the expiration of which the decree nisi will become absolute should be shortened to 28 days. By consent I order the petitioner to pay the respondent’s costs of the suit assessed at $250.00.
Orders accordingly.
Solicitors for the petitioner: Craig Kirke & Wright.
Solicitors for the respondent: White, Reitano and Young.

[cdlxxxv](1967) 86 W.N. (Pt. 2) N.S.W. 121.
[cdlxxxvi](1964) 6 F.L.R. 58 at p. 69.
[cdlxxxvii][1975] 1 All E.R. 343.
[cdlxxxviii][1943] A.C. 517.
[cdlxxxix](1963) 4 F.L.R. 216 at p. 220.