E.H.J v K.S.J

• Jurisdiction: Bahamas
• Judge: C. V. H. Strachan, J
• Judgment Date: 21 November 2023
• Docket Number: 2022 FAM/div/00438
• Court: Supreme Court (Bahamas)

BETWEEN

E.H.J

Petitioner

and

K.S.J

Respondent

BEFORE:

The Honourable Madam Justice C.V. Hope Strachan

2022 FAM/div/00438

IN THE SUPREME COURT

Family Division

Family law — Divorce — Cruelty — Petitioner claiming cruelty by respondent — Respondent claiming cruelty by petitioner — Grounds on which divorce may be obtained in The Bahamas — Whether the actions by the Petitioner and/or Respondent amounted to cruelty — obligation to show conduct grave and weighty — obligation to demonstrate health is affected.

APPEARANCES:

Bryann Hepburn for the Petitioner

Janet Lisa Bostwick Dean and Nioshi Ferguson for the Respondent

RULING

C. V. H. Strachan, J

;

Background Facts:

1 EHJ (“the wife”) and KSJ (“the husband”) were married on 27 ^th December 2014. There is one child of the marriage, E.K.A.J born on 29 ^th April 2015.

2 By a Petition filed 27 ^th July 2022, the wife, sought a divorce on the ground that since the celebration of the marriage the husband has treated her with cruelty.

3 The husband filed an Answer and Cross Petition on 17 ^th May 2023 denying the allegation of cruelty and prayed for the dissolution of the marriage on the ground that since the celebration of the marriage the wife has treated him with cruelty. Consequently, there are competing claims, each contending cruelty by the other party.

4 Both the wife and the husband gave oral evidence at the hearing of the matter in support of their case. Neither called any other witnesses at trial.

The Wife's Allegations in the Petition are as follows:

7(a) The Petitioner first took notice of a change in the Respondent's behaviour and attitude towards her about three (3) years into the marriage .

(b) The Respondent appeared to be very disinterested in the marriage and seldomly assisted the Petitioner with household chores or caring for the child of the marriage. The Petitioner was made to feel lonely and overwhelmed with shouldering the responsibility of taking care of the home and family .

(c) The Petitioner voiced on numerous occasions that she needed the Respondent to be more emotionally available. The Petitioner also spoke to the Respondent repeatedly about assisting with the household chores and helping with tasks like feeding and dressing the child of the marriage. The Respondent would typically give assistance for a short period of time and then revert to his normal lackadaisical behaviour .

(d) The Petitioner was diagnosed with Sclederma in 2019 and was admitted to the Intensive Care Unit during November 2020. The Petitioner's condition at the time was critical. In January 2021 the Petitioner was released from hospital .

(e) As a result of this condition, the Petitioner experiences joint pains, shortness of breath, reduced mobility, callouses on the skin and difficulty swallowing .

(f) Notwithstanding the Respondent being aware of the Petitioner's current limitations, the Respondent continues to neglect providing the Respondent with the assistance she desperately needs. The Petitioner is made to struggle to .

(g) The Respondent has gotten increasingly cold towards the Petitioner after her illness. It is not uncommon for the Respondent to show no concern when he hears the Petitioner coughing, vomiting, or gasping for breath. In these moments, the Petitioner feels abandoned and uncared for .

(h) The Respondent has in recent times made it clear to the Petitioner that he would expect sex in exchange for providing money for household expenses. This ultimatum has made the Petitioner feel hurt and dejected. The Respondent is aware of how Scleroderma has negatively impacted the Petitioner's image and desire for sex. The Respondent has been insensitive towards the toll these changes have put on her .

(i) There were periods of time when the Respondent would withdraw from the Petitioner. The Respondent also became angry and irritable for the most trivial things. The Petitioner felt lonely during these periods when the Respondent would withdraw himself

(j) The Petitioner has been advised that she has a life expectancy of years. She cannot live out her remaining days in a household devoid of love, compassion and understanding .

(k) The Petitioner is resolute in her belief that the marriage is beyond being salvaged .

8. There have been no previous proceedings in the Supreme Court or any Court of Summary Jurisdiction with respect to the marriage within the Commonwealth of The Bahamas .

9. That this Petition is not present or prosecuted in collusion with the Respondent .

10. That the Petitioner has not been accessory to or connived or condoned the Respondent's conduct hereinbefore alleged .

11. That there is no possibility of reconciliation .

WHEREFOR THE PETITIONER PRAYS:

1. That the marriage be dissolved

2. That there be a declaration pursuant to Section 73 (1) (b) (i) of the Matrimonial Causes Act, Chapter 125

3. That all ancillary matters be adjourned to Chambers .

4. That the Court may order such further or other relief as the Court may deem fit and proper in all the circumstances of this case .

The Husband's Allegations in the Answer and Cross Petition are as follows:

1. After admitting to the formal allegations which are enumerated in Paragraphs 1,2,3,4,6,8,9,9 and 10 of the Petition the Respondent denies the allegations of cruelty made by the Petitioner against him in his Answer as follows:

“ 2. Paragraph 5 of the Petition refers. It is admitted that the Respondent is self-employed and that he resides at the Pepper Street residence. It is further admitted that the Petitioner is employed with the Ministry of Immigration as a Clerk and that she resided at Pepper Street on June 23, 2022. The Petitioner vacated the Pepper Street residence in September 2022.

3. Paragraph 7 of the Petition refers .

(a) The Respondent does not admit or deny paragraph 7 (a) of the Petition. The Respondent denies that he changed his behavior and attitude towards the Petitioner about three (3) years into the marriage or at all .

(b) The Respondent denies that he was disinterested in the marriage. He admits that he did not assist with household chores; however, he hired a maid to assist in the home with the household chores and the Petitioner said she did not want the maid there. As a result, the maid was dismissed. The Respondent did and does assist with the child of the marriage. The Respondent is unable to speak to the Petitioner's alleged loneliness, but he is aware that she complained about the household chores which she would not allow him to hire any help to assist her with. For the reasons given herein the Respondent denies that the Petitioner had to shoulder the responsibility of taking care of the home. She chose to do so. Further, she did not have the responsibility of caring for the family as he assisted with their child and with family expenses .

(c) The Respondent admits that the Petitioner indicated that she needed him to be more emotionally available; however, the Respondent has not changed from the person that he was prior to their marriage. He was never a demonstrative person with respect to his feelings, but he demonstrated his love and affection for the Petitioner by working extremely hard to ensure that all her needs were met as best he could do so. The Respondent denies that he only assisted with their child periodically. As per the above he was always willing to provide the Petitioner with assistance for completing the household chores as he could not undertake doing them himself as he worked full-time as a self-employed refrigeration technician. Most of his clients are commercial clients - restaurants, hotels, and food stores- and he has to be on call 24/7 to make necessary repairs whenever they are needed. In order to make ends meet he would have to be on call seven (7) days per week .

(d) The Respondent admits Paragraphs 7 (d) and 7 (e) of the Petition .

(e) The Respondent denies paragraph 7 (f) of the Petition. The Respondent either personally gives the Petitioner any assistance that she needs, or he has hired or offered to hire her any assistance that she needs that he is unable to give because of his work demands .

(f) The Respondent denies paragraph 7 (g) of the Petition. The sadfact is that the Petitioner is constantly ill. The Petitioner always coughs, vomits, and gasps for breath. The Respondent cannot render 24/7 care, nor can he be there with her 24/7. The Petitioner refuses to understand this. When she experiences these symptoms in the Respondent's presence the Respondent ascertains either by asking or looking at her that she is well as can be expected and then moves on to whatever he was engaged with .

(g) Paragraph 7 (h) of the Petition refers. The Respondent denies that he ever told the Petitioner that he expected sex in exchange for providing money for household expenses or for any kind of financial gain. Despite the fact that the Petitioner says that she has a negative image of herself and a resulting decreased desire for sex as a result of her Sclederma the Respondent still desired his wife. He did not care what she looked like. The Respondent regrets that she feels that he was insensitive towards the toll that her illness put on her as at all times he sought to demonstrate care by providing for her and to reassure her by demonstrating that he continued to desire her .

(h) The Respondent denies the allegations made about him in paragraph 7(i) of the Petition in their entirety .

(i) The Respondent does not admit or deny paragraphs 7(j) and 7(k) of the Petition .

CROSS PETITION

4. The Respondent alleges that since the celebration of the marriage the Petitioner has treated him with cruelty .

• (a) When the Petitioner feel ill in or for her to be released from the hospital she had to have a lot of medical equipment at home and the home had to be prepared for her return. The hospital provided the Respondent with a...