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Ilaisa v Ilaisa [1998] VUSC 16; Matrimonial Case 004 of 1997 (27 May 1998)

IN THE SUPREME COURT OF
THE REPUBLIC OF VANUATU

Matrimonial Jurisdiction

Matrimonial Case No. 04 of 1997

BETW>BETWEEN:

GLENDEN ILAISA
Petitioner

AND:

DELMAY ILAISA
Respondent

AND:
:

ALICK TERRY
Co-Respondent

Coram: Acting Chief Justice Lunabek Vincent, J

Counsel: Mr Stephen Joel, Public Solicitor for the Petitioner
Mrs. Delmay Ilaisa in person (not legally represented)

LIGN="CENTER">JER">JUDGMENT

By Petition dated 09^th of April 1996, Mr. Stephen Joel, the Public Solicitor, Counsel for the Petitioner/Husband herein, sought a denisi for the dissolutiolution of the Marriage between the Petitioner/Husband and the Respondent/Wife. The couple has two (2) children in their marriage. The Petitioner seeks also to have the custody of the child Jessica, a female, born on 23^rd February, 1989 and be allowed reasonable access to the child Toata Ilaisa, a male child, born on 14^th December, 1995. This petition was transferred from the Magistrate’s Court to the Supreme Court under Section 1(c) of the Magistrate’s Court (Civil Jurisdiction) Act 1981 CAP 130. The Respondent has been advised about her right to get a lawyer at the beginning of these proceedings.

The Petition was filed on the ground of adultery under section 5 (a)(i) of the Matrimonial Causes Act CAP 192.

The Petitioner, Glenden Ilaisa gave evidence that he was lawfully married to the Respondent, Delmay Ilaisa on the 31^st January, 1988 at the Nambatu SDA Church, Port Vila. After the marriage, they have two (2) children, namely:

Jessica Ilaisa, a female child, born on 23^rd February, 1989.

Toata Ilaisa, a male child, born on 14^th December, 1995.

The Respondent/Wife is from the Solomon Islands and she got Vanuatu citizenship after their marriage. Both are domiciled in Vanuatu.

The Petitioner gave evidence that his wife had committed adultery in 1994 with one Alick Terry, the Co-Respondent. He testified that his wife admitted to him about her adultery. On or about 23^rd October, 1995 the Petitioner had purchased an airfare ticket for his wife to go to Solomon Islands.

After some custom meetings held to sort out the differences between the couple and the Co-Respondent, the Petitioner was not satisfied about the outcome of the custom meeting and decided to divorce his wife.

He gave also evidence that his Wife/Respondent refuses to divorce, she refuses the Petitioner to have custody of the children and she refuses any settlement. He says arrangements were made on the basis that he will have the custody of the child Jessica Ilaisa and the Respondent/Wife will have the custody of the child Toata Ilaisa and a reasonable access to be allowed to both of them to get access to each of the children. He also gave evidence that there are some difficulties related to access arrangements.

He confirms finally that the best way for both is for the Court to dissolve the marriage so that each of them can live their own life.

The Petitioner says also that he never committed adultery when cross-examined by the Respondent.

The Respondent/Wife’s evidence is that she refuses the dissolution of her marriage with her husband/Petitioner.

She admitted she committed adultery with the Co-Respondent one Alick Terry sometimes in 1994. She confessed her adultery to her husband sometimes in 1995.

She returns from the Solomon Islands on 16 January, 1996 with Toata, the male child. She attended a custom meeting to settle their differences. She testified that at the end of the meeting, there were fines and compensations paid. They shook hands. She thought this settled everything then. So she said she refuses the dissolution of the marriage because she believes she can reconcile with her husband.

She further gave evidence that the adultery took place in 1994. She confessed her adultery to the Petitioner/Husband in 1995. She returned to Vanuatu on 16 January 1996. She gave evidence that after her return to Vanuatu, her husband visited her and spent the night with her until December 1997. She said the last time the Petitioner came to see her and spent the night with her was on 6 January 1998. She said they spent the night together and have sexual intercourse on continuous basis every week until 6 January 1998.

Under cross-examination, she confirmed that on 16 January 1996 after she returned from Solomon Islands, she was at home and her husband had sexual intercourse with her. She confirmed also that after the Petitioner files the divorce Petition on 9^th April 1996, he still had sexual intercourse with her until 6^th January, 1998.

The lawits its application to the facts.

Section 5 (a) (i) of the Matrimonial Causes Act CAP 192 says:

5. "… a petition for divorce may be presented to the Court either by the Husband or the Wife -

(a) on the ground that the Respondent-

(i) has since the celebration of the marriage committed adultery …"

The evidence establishes that the Respondent has committed adultery. She admitted that matrimonial offence. There is no dispute about that.

Section 9 of the same Act provides:

"(1) …

(2) On the hearing of a petition for divorce it shall be the duty of the Court to enquire, so far as it reasonably can, into the facts alleged and whether there has been any connivance or condonation on the part of the petitioner and whether any collusion exists between the parties, and also to inquire into any countercharge which is made against the petitioner.

(3) If the Court is satisfied on the evidence that –

(a) the case for the petitioner has been proved; and

(b) where the ground of the petition is adultery, the petitioner has not in any manner been accessory to, or connived at, or condoned the adultery …; and

(c) the petition is not presented or prosecuted in collusion with the Respondent or either of the Respondents,

the Court shall pronounce a decree of divorce, but if the Court is not satisfied with respect to any of the aforesaid matters, it shall dismiss the petition."

In this case, after investigating into the facts alleged I am satisfied that there has been no connivance on the part of the Petitioner and that there is no collusion which exists between the parties.

However, there are material evidence indicating the possibility of the existence of condonation.

In this case, condonation is not pleaded. It is not necessary that condonation should always be pleaded but failure to plead it does not relieve the Judge of the duty of investigating that question if there is any material indicating the possibility of the existence of condonation. [see Niko –v- Niko. Judgment of the Supreme Court – Vanuatu. Civil Case No. 69 of 1996 dated 21 June 1996 (unreported)].

Condonation of matrimonial offences means the conditional forgiveness of all such offences as are known to or believed by the offended spouse, so as to restore as between the spouses the status quo ante [see Halsbury’s Laws of England, 3^rd Edition, Volume 12].

The material evidence indicating the possibility of the existence of condonation is the evidence of the Respondent to the following effect. She committed adultery with the Co-Respondent in 1994. She confessed her adultery to her husband in 1995. Her husband has full knowledge about his wife’s adultery. There is no dispute about that. The Petitioner files the divorce petition on 9^th April 1996. The Respondent/Wife gave evidence that after the filing of the Petition, the Petitioner/Husband visited her at her home, spent the night with her, had sexual intercourse with her. This happened every week until December 1997 and the last time the Petitioner/Husband visited his Wife/Respondent and spent the night and had sexual intercourse with her was on 6 January 1998.

Condonation may be expressed or implied. In the case of a guilty wife, resumption of sexual intercourse with the husband is condonation by him if he had full knowledge of the offence, but it is not condonation if the resumption has been induced by her false statements or fraud [which is not the situation in this case].

Further a husband who resumes sexual intercourse with his wife knowing that she had committed adultery once with a man and suspecting that she has done more than once, condones all the previous acts of adultery with that man.

As to corroboration of condonation, the Courts are always slow to act on the uncorroborated evidence of a guilty party seeming to establish condonation by sexual intercourse after full knowledge, but the Court may come to that conclusion on the evidence of the guilty party alone.

The effect of condonation is that if condonation is proved, the Court will act on it, even though it is not pleaded.

By perusing the language of Section 9(3) of the Matrimonial Causes Act CAP 192 referred to above, I am of the view that paragraphs (a); (b); (c) of the Sub-Section 3 of the Section 9 have to be considered and applied together. This means that if the Court is not satisfied with respect to any of the matters provided in Section 9(3) (a), (b), (c) of the Act, then it shall dismiss the Petition.

In this case, applying Section 9 (3) (a), (b), (c) of the Act to the facts alleged relating to the possibility of the existence of condonation, I come to the conclusion that the Petitioner/Husband has condoned the adultery of his wife. Condonation is, therefore, proved.

On the basis of these considerations, the divorce petition is hereby dismissed and I so rule. I make no order as to costs.

I have also been informed that the Petitioner and the Respondent lived separately and there are some arrangements made between parties in respect to de facto custody of the two (2) children of the marriage and I have also been informed that there are difficulties arising out of the access by one spouse to one of the child who is under the de facto custody of the other spouse.

Any arrangements of the couple in respect to custody of the children cannot waive the statutory powers of the Court to provide interim measures for the custody, care and control, maintenance and education of the children of the marriage.

The attached interim orders were therefore made to that effect.

Dated at Port Vila, this 27^th day of May 1998.

LUNABEK VINCENT, J
Acting Chief Justice.

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