N10647
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

In the Matter of the Matrimonial Causes Act Ch. 282

MC NO. 33 OF 2018

BETWEEN
PHILIP DOTANA HEHONAH
Petitioner

AND
ANNE DAMALI ROBERT
Respondent

Alotau:	Toliken J
2023:	18th December

MATRIMONIAL CAUSES – petition for dissolution of marriage – uncontested petition – grounds – desertion and separation – both grounds proved to reasonable satisfaction of court – no mandatory or discretionary bars to grant of decree – Little to no chance of resumption of cohabitation – Order Nisi granted – Matrimonial Causes Act, ss 17, 21, 23, 24, 25, 27, 28, 29.

Cases Cited:
Papua New Guinean Cases

Loni v Loni (2020) N8250

Overseas Cases:

Hyde v Hyde (1866) 1 P & D 130 

Counsel:

P Palek, for the Petitioner
Respondent, nil appearance

JUDGMENT

18th December 2023 

1.	TOLIKEN J: This is an uncontested or undefended petition by the Petitioner Philip Dotana Hehonah for the dissolution of his marriage to Anne Dimale Nobert. I heard submissions and reserved. This is my short judgment.

JURISDICTION
2.	The Court is seized of jurisdiction to hear the petition because both the Petitioner and the Respondent are automatic citizens and are from Milne Bay Province. (Matrimonial Causes Act Ch. 282, s 14 (the Act)) Furthermore, the parties have been married for more than 3 years therefore no leave was required by the Petitioner to file the petition as required by Section 21 (2) of the Act.  They solemnized their marriage on 08th April 1987.
 
3.	The Petitioner was born on 30th August 1960 at KB Mission Hospital, Alotau District, Milne Bay Province. The Respondent was born on 19th September 1967 at Samarai Hospital, Milne Bay Province.

4.	At the time of filing his petition the Petitioner was a Correctional Officer based at Giligili Corrective Institution. He held the rank of Seargeant Major. The Respondent had left the matrimonial home and was residing here in Alotau Town.

GROUND S FOR DISSOLUTIONTHE PETITIONER ADVANCES 
5.	The Petitioner’s grounds for the petition are desertion and separation pursuant to Section 17(b) and (m) of the Act.

ISSUES
6.	There is no issue about the fact that the parties here were legally married, having contracted a statutory marriage. The only issues to determine for the petition to be granted are –

(1)	Whether the Respondent deserted the Petitioner; and

(2)	Whether the parties have separated

THE EVIDENCE

7.	To support his petition the Petitioner filed two affidavits - Affidavit Verifying Petition and Affidavit in Support both filed on 09th November 2018. I do not wish to summarize the evidence there. Rather I will refer to the relevant evidence therein when dealing with the issues.   

THE LAW

8.	At this juncture it must be stated that dissolution of marriage (statutory marriage, that is) is very much fault based. To that end the Act, s 17, provides for matrimonial offences. Except for the ground of separation, a petitioner must prove that the other party has been guilty of such an offence for a decree for dissolution to be granted. The standard of proof is “reasonable satisfaction of the Court.” (s 80 of the Act)

9.	The Act, however, provides for rebuttable mandatory bars as well as discretionary bars to grant of decree. Mandatory bars included wilful refusal to consummate (s 21), failure to pay maintenance (s 23), unsound mind (s 24), separation (s 25), condonation or connivance (s 27), and collusion (s 28).

10.	Section 29 of the Act also provides for discretionary bars. It says:

29.	DISCRETIONARY BARS.

The Court may in its discretion, refuse to make a decree of dissolution of marriage on a ground specified in Section 17(a) to (l) if, since the marriage–
(a) the petitioner has committed adultery that has not been condoned by the respondent or that, having been so condoned, has been revived; or
(b) the petitioner has been guilty of cruelty to the respondent; or
(c) the petitioner has wilfully deserted the respondent before the happening of matters constituting the ground relied on by the petitioner or, where that ground involves matters occurring during, or extending over, a period, before the expiration of that period; or
(d) the habits of the petitioner have, or the conduct of the petitioner has, conduced, or contributed to the existence of the ground relied on by the petitioner.

11.	It is apparent from this provision that the Court may in its discretion refuse to grant a decree if  the petitioner has committed adultery that has not been condoned by the respondent, or if so condoned, has been revived, or he is guilty of cruelty toward the respondent, or that before the respondent had deserted him, the petitioner  had deserted the respondent, or the petitioner’s conduct or behaviour contributed to the desertion.

12.	As I said in Loni v Loni (2020) N8250:
13.	The bars to a decree for dissolution bespeaks of the law’s reluctance to countenance or permit easy divorce and because of its traditional view of the sacredness and permanency of the marriage union. This is borne out in the classical common law definition of marriage that it is “the voluntary union for life of one man and one woman to the exclusion of all others.” (per Lord Penzance in Hyde v Hyde (1866)1 P & D 130 at 133) Divorce is still very much fault based in this jurisdiction and so a person seeking to dissolve his or her statutory marriage must prove to the reasonable satisfaction of the court one or more grounds under Section 17 of the Act, and further show that there are no mandatory or discretionary bars to prevent the grant of decree …

FACTS
13.	From the Petitioner’s Supporting Affidavit, I find the following facts; the parties (both automatic citizens and domiciled in Milne Bay contracted a statutory marriage at the Civil Registry in Port Moresby on 08th April 1987. After marriage they resided at the Bomana Corrective Institution between 1987 and 1989. They moved to Giligili Corrective Institution in 1989 and lived together there for 19 years until 25th August 2008 when the Respondent walked out of the matrimonial home after admitting that she was having an extra-marital affair. Cohabitation ceased then and has not resumed. At the time this petition was filed they had been separated and living apart for 10 years.

14.	They have three adult children namely Philip Dotana Hehonah born on 26th October 1987 (now a lawyer with Kumul Petroleum Holdings Limited), Mark Dotana Hehonah born 24th August 1994 (employed by the Plant Transport Pool (PTB) of the Department of Works, Alotau), and Naomi Dotana Hehonah born on 07th December 1996 who at the time of filing this petition was in her second year at the University of Papua New Guinea. The children are now living their separate lives. I find that the Petitioner was solely responsible for the children’s welfare and upkeep including their educational expenses.

15.	Since the Respondent left the matrimonial home voluntarily on 25th August 2008, she has married someone else. At the time of filing the petition she was employed by Islands Mobile Hire Cars in Alotau as Branch Manager.

16.	From the evidence before me. I find that the Petitioner has not condoned or at the grounds of the petition nor is their evidence of collusion.

DELIBERATIONS 

Issue 1:	Whether the Respondent Deserted the Petitioner.

17.	 Section 17 (b) of the Act provides for desertion as a ground for divorce as follows:

17. 	GROUNDS FOR DISSOLUTION OF MARRIAGE.
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:–
…
(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 two years;
…
18.	For the Petitioner to succeed, he must prove to the reasonable satisfaction of the Court that since the marriage that the Respondent:

1)	Willfully deserted the Petitioner,
2)	Without just cause or excuse,
3)	For a period of not less than two years.
4)	The petitioner did not contribute to the desertion.

19.	Having considered the evidence before me, I am reasonably satisfied that that the Respondent deserted the Petitioner and their children at Giligili Corrective Institution on 25th August 2008.

20.	 In the absence of evidence to the contrary, I am also satisfied that such desertion was without just cause or excuse. There is no evidence that the Petitioner was cruel to the Respondent, or that he committed adultery which remained uncondoned, or that he deserted the Respondent (whether actual or constructive) and failed to provide physically, financially or emotionally for the Respondent or their children, or that his negative habits and/or behaviour drove the Respondent into leaving the matrimonial home. 

21.	Did he have the habit of getting into long drinking sessions with friends and colleagues? Did he suffer from addiction to substance abuse which impacted negatively on his marriage and responsibility to provide for the family? Did he deny the Respondent her conjugal rights? Did he succumb to pressure from relatives for contributions to customary obligations to the detriment of his wife and children? Did he habitually give more time to work then to his family? Did he constantly violate her right to worship as she wished or prevented her from visiting or supporting her own family or relatives during their 10 years of marriage? These are, in my opinion, things or factors that may often contribute to discord between marriage mates. These are matters which in my opinion may constitute just cause or excuse for a marriage mate to leave the matrimonial home.

22.	I find that the Petitioner is guilty of none of these.

23.	The Respondent left the matrimonial home 10 years before the petition was filed. She has not returned or made any attempts to do so. Clearly then the parties have stayed apart for more than 2 years.

24.	This ground of the petition has therefore been made out. What about the ground of separation.
Issue 2:	 Whether The Parties Have Separated
25.	Section 17 (m) of the Act relevantly provides for the ground of separation as follows:
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 five years immediately preceding the date of the petition, and there is no reasonable likelihood of cohabitation being resumed;
…
26.	Section 25 of the Act defines separation and provides qualifications for grant or refusal of a petition for dissolution of a marriage on the ground of separation in the following terms:

25.	SEPARATION.
(1) In this section, “the ground of separation” means the ground specified in Section 17(m).
(2) 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 only of the parties, whether constituting desertion or not.
(3) A decree of dissolution of marriage may be made on the ground of separation notwithstanding that there was in existence at any relevant time–
(a) a decree of a court suspending the obligation of the parties to the marriage to cohabit; or
(b) an agreement between the parties for separation.
(4) Where, on the hearing of a petition for a decree of dissolution of marriage on the ground of separation, the Court is satisfied that, by reason of the conduct of the petitioner, whether before or after the separation commenced, or for any other reason, it would, in the particular circumstances of the case, be harsh and oppressive to the respondent, or contrary to the public interest, to grant a decree on that ground on the petition of the petitioner, the Court shall refuse to make the decree sought.
(5) Where, in proceedings for a 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 on the decree becoming absolute.
(6) The Court may, in its discretion, refuse to make a decree of dissolution of marriage on the ground of separation if the petitioner has, before or after the separation commenced, committed adultery that has not been condoned by the respondent or that having been so condoned, has been revived.
(7) Where petitions by both parties to a marriage for the dissolution of the marriage are before the Court, the Court shall not make, on either of the petitions, a decree on the ground of separation if it is able properly to make a decree on the other petition on any other ground.
27.    The following are explicit from this provision:
•	Where the parties to a marriage have stopped cohabitating due to the action or conduct of one the parties, this may constitute separation. 
•	A petition shall be refused or declined if the conduct of the petitioner, before or after separation, is harsh and oppressive to the respondent or contrary to public interest.
•	Where the Court is of the opinion that it is just and proper for the petitioner to provide maintenance for the respondent or provide some other benefit such as for instance through settlement of property, it shall not grant the petition unless the petitioner makes such arrangements prior to the order becoming absolute.
•	The Court shall not grant the petition if the petitioner has committed adultery before or after the petition which has not be condoned by the respondent, or if so condoned revived. 

28.	Now to succeed then on this ground the Petitioner must prove that:

(1)	They have separated and lived separately; and
(2)	The petition was filed not less than 5 years after separation; and
(3)	There is no likelihood cohabitation.

29.	So, has the Petitioner adduced evidence that the Respondent has separated from him as has been living separately from him for a period of not less than 5 years? Indeed, she has. She left the matrimonial home on 25th August 2008 and has returned. She had been living with another man for 10 years before the Petitioner filed for divorce. Since filing, another 4 years has lapsed. There is therefore very little to no likelihood at all that the parties will resume cohabitation.

30.	Notwithstanding that, are there any mandatory bars to decline the petition under s 25 of the Act. Has it been shown that the Petitioner was harsh and oppressive to the Respondent?  Does the Petitioner need to make arrangements for maintenance or provide other benefits such as settlement of property before a decree can be granted and made absolute? Or is the Petitioner guilty of uncondoned adultery?

31.	The evidence before me shows that none of these bars exists to deny the Petitioner his petition. 

CONCLUSION

32.	In conclusion I am satisfied that the Respondent had deserted the Petitioner without just cause for a period of not less than 2 years and that the Petitioner did not connive at or contributed the desertion.

33.	I am also satisfied that the parties have separated and living apart for a period of not less than 5 years and there is very little to no likelihood that they will ever resume cohabitation.

34.	Finally, there are no mandatory or discretionary bars to the grant of the petition.

ORDERS
35.   The Court orders that:
1.	The petition is granted and a decree nisi shall be issued for the dissolution of the marriage between the Petitioner Philip Dotana Hehonah and the Respondent Anne Damal Norbert.

2.	The parties shall meet their own costs.

Ordered accordingly.

________________________________________________________________
L B Mamu, Public Solicitor: Lawyer for the Petitioner:  
No appearance by the Respondent.