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Martin v Martin [2003] TVHC 15; Case No 02 of 2003 (14 April 2003)

IN THE HIGH COURT OF TUVALU
FAMILY JURISDICTION

CASE NO: 2/03

KESIA MARTIN

v

GRAEME LEIGH MARTIN

James Duckworth for the appellant
No appearance by respondent

Hearing: 10 April 2003
Judgment: 14 April 2003

JUDGMENT

The appellant petitioned for divorce in the Resident Magistrate's Court and was granted a divorce on 17 January 2003. The petition included a prayer for joint custody of the children and maintenance for the wife but both were refused by the magistrate.

I heard submissions by counsel for the appellant but it appears that the respondent has not been served with the notice of appeal. The appeal cannot proceed and it is adjourned for service on him of the notice and grounds of appeal.

However, a perusal of the papers in the case has revealed a serious failure to follow proper procedures. It appears that some, at least, of these practices may have come to be regarded as the normal procedure in divorce cases and, in order to prevent future repetition, I intend to give an interim judgment.

In this case a petition was filed in the Resident Magistrate's Court on 8 July 2002. It was a wife's petition for divorce on the ground that the marriage had completely broken down. The petition does not conform to the form set out in the Schedule to the Matrimonial Causes (Magistrates Courts) Rules and so some essential matters are omitted. In particular there is no mention of whether or not there have been any other court proceedings. It appears that omission went unnoticed by counsel for the petitioner and the magistrate.

In matrimonial cases, it is a matter of the utmost importance. There may have been previous orders for maintenance or custody. They may have been made in other courts or other jurisdictions. It is vital the court knows of them before making any order itself because the new order may conflict with one already in force.

The Matrimonial Causes (Magistrates Courts) Rules were made for the previous Divorce Act and so are inappropriate in many aspects. However, the terms of section 32(2) of the Interpretation Act, Cap 1A, require that, insofar as they are applicable, they should still be followed. Rule 5 provides that a petition shall be in accordance with Form 1 and should also contain any other information required under the remaining paragraphs of that rule.

Had Form 1 been used in this case, the omission of reference to previous proceedings would not have occurred.

The most serious failure in this case arises from the fact than the divorce was granted without either party being present. It appears the court proceeded on the papers alone. They consisted of the petition, the marriage certificate and a letter sent by email from the respondent saying he did not oppose the divorce but suggesting he had insufficient money to pay maintenance.

Part III of the Matrimonial Proceedings Act provides that the only ground for divorce (with the exception only of the circumstances in section 8 which relate to marriages which are void) is that the marriage has completely broken down.

Section 9(2) sets out examples of matters which may be accepted as evidence to prove that the marriage has completely broken down and concludes:

"but no such evidence relieves the court from the duty to determine whether or not the marriage has completely broken down."

It is clear the granting of a divorce requires the court to determine whether the fact the marriage had completely broken down has been proved. There is only one method of proof permitted in any matrimonial case and that is by evidence.

Where the parties do not appear, there can be no evidence. The petition is not proof; it is simply a statement of the case the petitioner intends to prove. It is served to warn the respondent of the case that will be proved and is filed to advise the court. The matters stated in it will only become evidence when they are given on oath in court by the witness. It follows that no divorce case can be heard without at least the petitioner present.

Where the petitioner is present but the respondent does not appear, it can only proceed if there is an affidavit of service on Form 4 of the rules. In the present case, the email from the respondent shows he knew of the proceedings but that should not have been taken as sufficient. The court needs to be satisfied that the respondent has been served with the papers in the case. The fact he or she simply is aware of the case falls far short of that.

There were two children of the marriage and when the magistrate dealt with the question of custody he ordered custody of both to the respondent although one was 20 years old. One of the deficiencies of the present Act is that, whilst it states in section 12(1) who are children of the family, it never defines a child for the purposes of maintenance or custody.

For the avoidance of doubt in future, I rule that, in the absence of any other provision, the court should take the age a person is entitled to vote as the age of maturity for these purposes. That would mean that custody orders are only to be made for a child under the age of 18 years. I note that is also in accordance with the Custody of Children Act, Cap 20 that defines "Child" as "any person under the age of 18 years" and I understand from counsel that has been generally adopted in such cases.

In the present case, the only information of the actual age of the children was the date of birth stated in the petition. That was not evidence. When there are children to the marriage, the true age is most important and the evidence of the petitioner as to the dates of birth should always be supported by their birth certificates. If such a certificate cannot be produced, the petitioner must make application to the court for leave to proceed without it. The evidence may then be accepted in the same form, with necessary amendments, as an affidavit of marriage as set out in Form 2 of the rules. Leave should only be granted when there is sufficient reason; not simply to avoid the petitioner having to apply for one.

Having given custody to the respondent, the magistrate declined to make any order for maintenance. The reason he gave was, "Because the respondent will look after and care for the education of the children, this court will not be in a position to accept the petitioner's claim for maintenance". He had previously stated that the respondent "has provided this court with his financial position" by which he must have been referring to the email in which he says he has insufficient money. Once again, that is not evidence.

In all cases where there is a consent over custody or maintenance, the magistrate must have evidence of the position both of the children in relation to custody and maintenance and of the party seeking maintenance.

In order to ascertain the proper order in relation to maintenance, the court needs evidence of the financial status of both parties. Thus in any such case, there must be evidence of means of both parties either as direct oral evidence or by affidavit. That evidence must be detailed and full and supported by any relevant documents. If the court does not believe it is full enough, further evidence must be sought before any order is made. Where children are involved, it must include evidence of the children's present situation and, where a change is sought, the proposed new arrangements.

In all cases where there are children, the court must bear in mind that section 12(1) provides that their welfare is of paramount importance. That will include questions both of custody and maintenance. Section 12(2) provides:

"Accordingly, unless the court is satisfied that adequate arrangements have been made or will be made, for the welfare of the children it shall normally refuse grant a divorce or defer the grant."

It need hardly be stated again that the court will only be satisfied if it has evidence upon which to make such an assessment. In a case such as this where older children are involved, the court needs some evidence from them of their feelings about the question of custody.

All these matters may mean an adjournment but that should not deter the court from demanding sufficient evidence before granting the divorce.

I would remind all magistrates that under the latest Act, the grant of a divorce is the final order. There are no longer decrees nisi and absolute so it is essential that the court does not issue a decree until all such matters have been determined satisfactorily. Once the decree is issued, the court has very little power to correct any problems which may have arisen because of its failure to make proper and clear final orders.

In summary then, I would remind all courts that:

1. No divorce shall proceed unless at least the petitioner is present.

2. Even when the petitioner is present, the court cannot hear it unless the respondent is present or a proper affidavit of service has been filed.

3. No decree should be ordered in a case where there are children until the court has been satisfied on evidence that proper arrangements have been made.

4. No decision about maintenance of the children or a spouse shall be made until the court has received evidence, at least by affidavit, of the means of both parties unless one party, having been served, has failed to provide any evidence in which case the case can proceed on the evidence of the one party.

DATED this 14th day of April 2003

Gordon Ward
Chief Justice