Cox v Cox et Al
| Jurisdiction | Bahamas |
| Judge | Sawyer, J. |
| Judgment Date | 13 April 1994 |
| Court | Supreme Court (Bahamas) |
| Docket Number | Divorce and Matrimonial Side No. 105 of 1993 |
| Date | 13 April 1994 |
Supreme Court
Sawyer, J.
Divorce and Matrimonial Side No. 105 of 1993
Miss Daphne Duncombe for the petitioner
Mrs. Mizpah Tertullien for the respondent
Family law - Husband and wife — Divorce proceedings — Desertion alleged by husband who had left matrimonial home — Whether wife guilty of constructive desertion.
This matter first came on for trial on 17th May, 1993 as an uncontested petition.
On that occasion, Mrs. Tertullien appeared for the respondent (“wife”) and applied for leave to file an answer and cross-petition out of time while Miss Duncombe applied for leave to amend the petition to plead desertion as the basis of the petition rather than the previous ground of the wife living separate and apart from the petitioner (“husband”) for at least five (5) years immediately preceding the presentation of the petition.
Even though Mrs. Tertullien objected to leave being granted to amend the petition as prayed, I granted leave to Miss Duncombe to amend the petition and gave Mrs. Tertullien leave to file an answer and cross-petition out of time. On that occasion, Miss Duncombe had indicated that there was to have been no contest but that since her discussions with the wife's counsel she had been given express instructions to proceed with the petition.
The matter was then set down before me as a contested matter even though, in my view it should have been set down for trial before the judge assigned to chambers.
As the parties was before me with their counsel I proceeded to hear the evidence rather than adjourning it or taking it out of the list.
The parties were married on 26th August, 1961 when they were both 21 years of age.
There are six (6) children of the marriage all of whom are now adults.
When the parties were first married the wife remained in the home while the husband carried on with his job as a heavy equipment operator in New Providence as well as some of the Family Islands. The wife started working outside the home in or around 1962.
The husband spent a great deal of the time in the family Islands where his work took him while the wife remained at home and cared for the home and the children of the marriage.
It appears that there were frequent arguments between the parties during the marriage - mostly about money or the lack thereof. The husband's view was that the wife always seemed to think that he earned far more money than he in fact did. The wife on the other hand, spoke of asking the husband for money for various things such as one or other of their children's school fees or even to meet the mortgage payments on the matrimonial home. She also gave as an example that sometimes she would go to the husband's employer when he was working in Cat Island and sometimes she would get some money while at other times she would get no money.
The husband seemed to be suggesting that the wife nagged him about money and about women who would telephone him at the matrimonial home in connection with work that he was supposed to do for them. He also said that the wife would be discourteous to some women who were in fact customers and therefore caused him to lose some business.
The husband also complained that the wife would refuse him sexual intercourse and that she would go out at night without letting him know where she was going although he usually informed her that he was going out if he went out at night.
There was an incident in 1984, which led to the husband leaving the matrimonial home and remaining out of the house for two (2) years.
There is no doubt that on that occasion the wife had taken all of the husband's clothes and deposited them outside a house where a woman called “Patricia” lived because the husband had stayed out of the home all the previous night. The husband admits that he did stay out all that night but says it was because he had been drinking and he did not wish to drive. He therefore spent the night in a room at his uncle's club building. The following morning, as he was leaving the club, his uncle instructed him to drop off some keys to Patricia who was an employee of his uncle. This he did and then went to visit his sister who had come to New Providence from Inagua. He said that he did not know that his clothes had been taken to Patricia's house until after he called the wife at work and she told him that his clothes were at the house where he had spent the night.
The wife and one of their, sons, say that the husband was in fact at Patricia's house when they arrived there that morning; the son says he saw his father's car parked outside Patricia's house. Fortunately, I do not need to decide who was telling the truth about that incident for two (2) years later, the husband returned to the matrimonial home after being advised to do so by his uncle and brother.
Even if there was adultery committed by the husband with Patricia in 1984 before or after the day when the wife put out the husband's clothes, that incident was, in my view, closed by the subsequent return of the husband to the matrimonial home and the wife's accepting him back.
After the husband returned to the matrimonial home, he says that the wife's...
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