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Vaiangina v Lopeti [2009] TOLawRp 60; [2009] Tonga LR 448 (24 September 2009)

IN THE SUPREME COURT OF TONGA
Supreme Court, Family Jurisdiction, Nuku'alofa

FD 94/2009

Vaiangina

v

Lopeti

Salmon J
24 September 2009

Divorce – adultery allegation needs co-respondent joined – not named – petition dismissed

The petitioner petitioned for divorce on the ground that the respondent behaved in such a way that the petitioner could not reasonably be expected to live with the respondent. The respondent had been improperly associated with a named person with whom she was now living. The named person was said to be the petitioner's cousin.

Held:

1. Where adultery was alleged the person with whom the adultery was alleged to have been committed must be joined as a co-respondent.

2. This was not done and therefore the petition was dismissed.

Statute considered:

Divorce Act (Cap 29)

Rules considered:

Divorce Rules

Counsel for the petitioner : Mr Fili

Judgment

[1] This is an undefended petition for divorce. The grounds for the divorce are those set out in s 3(1)(g) of the Divorce Act (Cap 29). This Clause provides as a ground for divorce that the respondent has behaved in such a way that the petitioner cannot reasonably be expected to live with the respondent.

[2] In this case the allegation is that the respondent has been improperly associated with a named person with whom she is now living. The named person is said to be the petitioner's cousin. In evidence the petitioner said his wife had told him she was in a de facto relationship with the named person and was pregnant to him.

[3] Rule 5 of the Divorce Rules provides:

(1) Where a petition alleges that the respondent has committed adultery, every person with whom the adultery is alleged to have been committed (if still alive) shall be made a co-respondent in the cause unless:

(a) the person is not named and the petitions states that his or her identity is not known to the petitioner; or

(b) the Court otherwise directs on an application made ex-parte before issue of the petition.

(2) Where a petition alleges unreasonable behaviour under section 3(1)(g) of the Act on the ground that the respondent has been guilty of an improper association (other than adultery) with a person named, the petitioner shall apply to the Court at the time when the petition is issued for directions whether such person should be made a co-respondent in the cause.

It is clear from the rule that where adultery is alleged (as it is in reality in this case) the person with whom the adultery is alleged to have been committed must be joined as a co-respondent. This has not been done in this case and the petition must therefore be dismissed.

[4] Petition dismissed accordingly.