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T v R [1980] VULawRp 3; [1980-1994] Van LR 7 (12 December 1980)

[1980-1994] Van LR 7

IN THE SUPREME COURT OF
THE REPUBLIC OF VANUATU

CIVIL JURISDICTION

Civil Case No. 79 of 1980

BETWEEN:

T
Petitioner

AND:

R
Respondent

Coram: Chief Justice Cooke

Counsel: M de Preville for petitioner
Mr P Coombe for respondent

JUDGMENT

[CONSTITUTION - PROTOCOL - FAMILY ARRANGEMENTS]

The Petitioner, Mrs. T, a French citizen born in Vila on the 1st September, 1941, was married to Mr. R, the Respondent, on the 22nd July, 1967 before the French Registrar of Marriages at Vila. On the same day the parties went through another ceremony of Marriage before the British Registrar of Marriages.

Mr. de Preville, representing the Petitioner, contends that the only ceremony which had any legal existence was that before the French Registrar. Mr. P. Coombe, who represented the Respondent, has conceded that if the first marriage was valid, the parties could not re-marry the second time. The fact remains that they did but for what reason it is not apparent.

There were eight children of the marriage, four of whom are now residing in Fiji with grandparents and four living in Vila with their parents.

The Petitioner seeks permission to apply for a divorce from this Court on the grounds that there has been no harmony in the marriage on account of the jealousy of the husband and on account of his brutality towards her. The Petitioner, in her statement to me in Chambers on the 1st December, stated that the marriage was happy up to 1974 when she took a lover and had a child by him. That recently she took another lover, a Papuan soldier. That she wanted to join him in Papua New Guinea. She admitted that it was her fault that a difference had arisen between her husband, the Respondent, and herself. She then stated she had about twenty lovers prior to and during marriage but had none since the Papuan soldier left. She finally stated she was not prepared to try a reconciliation.

Mr. de Preville submitted to the Court that such was alone sufficient for the Petitioner to seek leave of the Court to apply for a divorce.

To ascertain the true facts in this case the Court allowed the parties to be examined.

The Petitioner first gave evidence on oath. She said that the reason for the application for permission to apply for divorce was because she was hit on one or two occasions. She said her husband used to drink but ceased doing so in 1971. She contended that on the 27th September, 1980 her husband hit her on the left eyebrow and the corner of her left eye so hard that she had to go to the hospital and have stitches on the wounds. She further stated he had during the past few months, been correcting her morally. Under cross examination she admitted that when the Respondent hit her it was near the Papuan soldier camp at Tagabe, where she had spent the night in the woods with a Papuan soldier. That her husband, with a Papuan soldier, took her to the hospital for attention. It was 6.15 a.m. when she received the blow. She further admitted that she told her husband she had at least twenty lovers and wrote their names on a piece of paper (Exhibit 1). That was toward the end of August, 1980. She also said that the Respondent did say that if she were to go back to him all would be forgotten but that she could not go back because she did not love him any more. She further admitted that the Respondent only hit her once during the past nine years of marriage.

The Respondent then gave evidence and related how on the day before he hit his wife he had returned home at 5.30 p.m. to find his wife was not at home. The four children were in the house. He made their food and then went to the Police Station to report his missing wife, then he went home and the children told him their mother had gone off in a bus with a Papuan soldier about 3 p.m. on the 26th September. He said he looked all night for his wife in a taxi and about 5 a.m. he went home and there saw a Papuan soldier close to his house and inquired from him as to whether he had seen his wife. From the information he obtained it was clear that his wife was with a Papuan soldier. That later he went with the Papuan soldier toward the Papuan camp at Tagabe and there saw his wife coming from the fence near the camp and it was then he hit her once and then brought her to the hospital accompanied by the Papuan soldier. He stayed at the Hospital with her, then took her to the Police Station where both made reports and then took her home. He said he was prepared to take his wife back and had sufficient funds to provide for his wife and children. Mr. de Preville did not cross examine the witness.

The Petitioner blatantly had continuous love affairs and even gave her husband the names of the lovers. An ordinary man, knowing of such might be considered to have good reason to beat a wife or at least throw her out of the house but it seems the Respondent was too much in love with his wife to scold her. However, if that state of affairs continued there was bound to be some reaction by the Respondent and such did happen on the 26th and 27th September, 1980 when the Respondent returned home from work to find his wife, the Petitioner, missing from the house. Having searched for his wife all night he saw her, at about 6.15 a.m. on the 27th September, coming from the direction of the Papuan camp. The sight of the Petitioner coming from the camp area and the information he had obtained obviously disturbed his composure with the result he hit the Petitioner on the eye brow, felling her to the ground. However, it must have been a blow given in a moment of extreme anger because he immediately pulled her up and with the Papuan soldier brought her to the Hospital for treatment and later took her home. This is the only occasion the Respondent hit the Petitioner for the past nine years. It was a blow given in extreme provocation.

Whatever law applies to this case it is basic by any standards of law that there has to be a good grounds before a Court can permit an action for divorce to proceed. Certainly under English law there would be no grounds whatsoever on the facts before the Court and with the greatest respect to Mr. de Preville, Counsel for the Petitioner, and his submission that on the facts there is sufficient evidence to justify the Petitioner, under French law, to apply for permission to sue for divorce, I cannot agree. In my opinion there are no grounds at all on the facts. I feel it is my duty now to make it clear to all who seek Justice in this Court that in a case of this nature and with facts as now presented, this Court will not entertain any application for leave to apply for divorce. Accordingly, the application is dismissed.

Mr. Coombe has raised an interesting matter concerning the status of the Respondent. He has referred to Articles in that highly controversial document, the Protocol. I have to ask myself, is it really status? Under Article 93(2) of the Constitution it is stated that "Until otherwise provided by Parliament, the British and French laws in force or applied in the New Hebrides immediately before the day of Independence shall on and after that day continue to apply to the extent that they are not expressly revoked or incompatible with the independent status of the New Hebrides and wherever possible taking due account of custom."

The Petitioner and Respondent were married before a French Registrar of Marriages which in my opinion was a legal marriage. Why it was necessary to have a second ceremony before the British District Agent later I cannot understand. It appears to me that the whole question is governed by the broad, general, universal principle that French and English legislation, unless the contrary is expressly enacted or so plainly implied as to make it the duty of a Court of Vanuatu to give effect to the French and English laws, is applicable only to French and British subjects or to others who by coming into this country, whether for a long or short time, have made themselves, during that time, subject to the Jurisdiction here. Every person who comes into this country, for however limited a time, is, during his residence here within the allegiance of the state, entitled to the protection of the state and subject to all the laws of the state. The governing principal is that all legislation is prima facie territorial, that is to say, that the legislation of any country binds its own subjects and the subjects of other countries who for the time being bring themselves within the allegiance of the legislating power. Although I do not have to decide on the question raised by Mr. Coombe in view of my decision in the facts above, and the query raised is one which I would prefer to have more time to consider, it does seem to me, at this stage, that the Respondent, having lived here for thirteen years and made his home here, no matter what his status is, is subject to the laws of the State. Having been married under French law, seemingly without any objections, he is bound by French laws relating to that marriage, such laws remaining in force under Article 93(2) of the Constitution.

I order the Petitioner to pay the costs of this application.

12 December 1980

FREDERICK G. COOKE
CHIEF JUSTICE