N1052

PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

KIRUHIA

V

KIRUHIA

Waigani
Los J

22 November 1991

FAMILY LAW - Dissolution of marriage - Grounds for separation - Continuous period of not less than five years - Whether interrupted by access visits to children - Matrimonial Causes Act (Ch No 282), s 17(m).

The Matrimonial Causes Act (Ch No 282), s 17, provides:

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

...

(m) that the parties to the marriage have been separated and afterwards have lived separately and apart for a continuous period of not less than 5 years immediately preceding the date of the petition, and there is no reasonable likelihood of cohabitation being resumed."

Held

Where the circumstances showed overwhelmingly that there was no hope of resumption of cohabitation, short periods of time spent under the same roof for the purpose of access to children of the marriage did not interrupt the period of separation.

Cases Cited

Crabtree v Crabtree (1964) 5 FLR 307.

Petition

This was the hearing of a petition for dissolution of marriage on the ground of separation.

Counsel

J Kemaken, for the petitioner.
M Kouro, for the respondent.

22 November 1991

LOS J: The petitioner and respondent went through a marriage ceremony in accordance with the rites of the Catholic Church at Wewak on 17 January 1976. They both come from the East Sepik Province though from different villages. The petitioner seeks a decree of dissolution of marriage on the grounds of separation. The respondent hotly contests the claim of separation. Section 17 of the Matrimonial Causes Act (Ch No 282) says:

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

...

(m) that the parties to the marriage have been separated and afterwards have lived separately and apart for a continuous period of not less than 5 years immediately preceding the date of the petition, and there is no reasonable likelihood of cohabitation being resumed."

The respondent acknowledges that there were occasional physical separations, but says these were for educational purposes. Other occasions were interrupted by the petitioner himself when he visited the respondent and the children at various places where the respondent and the children lived.

The separation began when the respondent and the children left the home at Goldie Barracks on 18 February 1982 and since then they stayed at the following places:

1. At Kwikila in 1982 as soon as they moved from Goldie Barracks and where the respondent took up a teaching position.

2. At a Boroko flat in 1983 when the respondent was studying at UPNG.

3. At Konedobu flat from 1984-1985.

4. At Gerehu Bible College in 1988 when the respondent took up Bible studies and she and the children resided at the college.

The petitioner was left at Goldie and later he lived at the following places.

1. At Goroka Teachers College where he was a Lecturer from 1983 to early 1984.

2. He went to the United Kingdom for studies at the end of 1983 to end of 1984.

3. After the studies he came to Goroka Teachers College again.

4. At UPNG where he was lecturing.

Apart from the admission by the petitioner that he did visit the respondent and the children at Kwikila, he denies visiting and staying with the respondent and the children at the Boroko flat and the Konedobu flat. He says that, when he returned from England, he brought presents for the children which he brought to the Konedobu flat and gave them to the children and he left to stay with his brother-in-law at a Doa Estate, Hiritano Highway. He admits that during a holiday in 1985 he went off with a female friend to Kimbe and that when the respondent and the children heard about it they went to Kimbe and took him to Port Moresby, but he denies staying with the respondent and the children as the respondent claims. He also says that when he came to teach at the University Main Campus at Waigani he did not stay with the respondent and the children, but he visited to see the children. While at the UPNG Campus he put a ban on visits by the respondent. This was put to the respondent and she admitted it by saying because "he was having a de facto relationship with other women".

As to the commencement of the separation both parties share the blame. And the continued physical separation was caused both by necessity for education and by choice. But all in all once the separation had started there was no turning back. I am prepared to find that the petitioner had visited the children and the respondent at Kwikila, Boroko and Konedobu, and stayed over as necessary to see and be with the children. I observed the respondent in Court during the lengthy hearing of this petition and that she is a strong and forthright person. It is my view therefore that the petitioner could only see the children if he was to humble himself in a way he had done. But all his actions from 1982 to the filing of the petition for dissolution of marriage, show that he has had no intention whatsoever to resume the marriage relationship. The fact that he is now in Canada with a different woman (the one he went with to Kimbe) and has two children from that relationship confirms that position.

As to the petitioner returning with the respondent and the children from Kimbe to Port Moresby, I do not put much weight on it. In the Papua New Guinean cultural setting, as the respondent and her line went to "recover" the husband who in their view was "stolen" by another woman, the petitioner would not have any other choice but to follow the wishes of the respondent and her relatives. The respondent’s evidence shows the petitioner’s predicament. She said "we confronted him and he got a shock. He surrendered to us".

The respondent relies on her strong religious convictions and argues that the marriage cannot be dissolved. It is not for me to pass judgment on this aspect. But the manifestation of the actions by the petitioner is that as far as he is concerned the marriage has ended. The respondent has also lived the life that of a single parent since 1982. She speaks confidently with a clear direction as to what she wants and where she is going. While this is a plus for her, by the same token it supports the evidence that the marriage has practically ended. It would be most unfair to compel the marriage between them when in fact they would only continue to live as they are now. It will only be an empty shell and it is no use forcing it.

I have found that the petitioner had stayed with the respondent and the children at different places for short periods. Does this mean the separation has been interrupted? In law parties may live under the same roof yet the evidence may be clear that they are living separate lives in terms of the marriage relationship: see the case of Crabtree v Crabtree (1964) 5 FLR 307. The petitioner’s reasons are clear: he wanted to be with the children. In my view spending one or two nights at the respondent’s flat is too small a period to disturb the long period of separation since 1982. At the time of hearing and this decision the separation still continues.

As to who caused the beginning of the separation, it is irrelevant under the Act. Section 25(2) of the Act says:

"For the purposes of Section 17(m) the parties to a marriage may be taken to have separated notwithstanding that the cohabitation was brought to an end by the action or conduct of one of the parties, whether constituting desertion or not."

I therefore grant the decree of dissolution of marriage as sought by the petitioner.

[His Honour then dealt with an application for maintenance in a manner not calling for report.]

There is no property to be settled.

Decree of dissolution granted

___________________

Lawyers for the petitioner: Joseph Sam Kemaken.
Lawyers for the respondent: Public Solicitor.