J.H.W v C.W
| Jurisdiction | Bahamas |
| Judge | Madam Justice G. Diane Stewart |
| Judgment Date | 09 November 2022 |
| Court | Supreme Court (Bahamas) |
| Docket Number | 2021 |
BS 2022 SC 137
The Hon. Madam Justice G. Diane Stewart
2021
FAM/DIV/No. 00039
IN THE SUPREME COURT
Family Division
Glenda Roker for the Petitioner
Alfred Gray for the Respondent
The Petitioner, J.H.W and the Respondent, C.W were married on 18 th April 2015. There are no children of the marriage. The Petitioner filed a Petition on 25 th January 2021 praying for dissolution of the marriage on the ground that the Respondent has treated the Petitioner with cruelty since the celebration of the marriage. The Respondent filed an Answer on 11 th March 2021 merely denying the cruelty.
The Petitioner averred that following the celebration of the marriage, the Respondent's attitude towards him changed drastically. The Petitioner related various incidents which he considered cruel which included her speaking to him in a derogatory manner and calling him belittling names and other terms to emasculate him. Thereafter he alleges that they would fight all the time.
In his evidence he averred that he had moved in with the Respondent prior to their marriage because his parents had kicked him out of their home because he was a homosexual.
He maintained that homosexuality was not accepted and open on Harbour island or the Bahamas generally.
He maintained that the Petitioner was aware of his homosexuality prior to the marriage and that she had accepted him as a homosexual.
The Petitioner grew unhappy in the relationship and overtime the parties grew distant and intimacy between them dwindled. The Respondent became confrontational and there were arguments. These arguments revolved inter alia around his not making enough money, and his inability to pay the rent. As a result he began staying out late until the Respondent fell asleep to avoid the arguments.
The fights also resulted as a result of his partying with his friends and her non acceptance of his friends. Even though he took care of the home it often was not sufficient for the Respondent. She would call him gay, bi-sexual, and she would kick him out of the house.
After a while she would invite him to return and the same behavior would happen again. Sometimes he would be out of the matrimonial home for three months or more.
The Respondent used his friends against him. She would manipulate them to get him to change his mind on things which she thinks he should do.
He denied under cross-examination that he changed his lifestyle upon marriage. He admitted to dating a man before he went to Canada on holiday. He agreed to having a meeting with this man and the Respondent on his return from Canada.
He left the home permanently in August 2019. The counselling sessions were not successful.
The Respondent said she was okay with his bi-sexuality yet she called him disparaging and offensive names inclusive of calling him gay and homosexual and was always trying to demean and control him.
The pressures of the relationship and the pressures of his life led the Petitioner to begin drinking which subsequently caused him to react violently towards the Respondent. The Petitioner admitted that on one occasion he destroyed the Respondent's camera equipment.
On several occasions Petitioner had to stay with family members when the Respondent had banished him from the matrimonial home. The Respondent would also get her friends and family involved in their private marital issues which left the Petitioner feeling hurt and extremely embarrassed.
The Respondent would also threaten the Petitioner which resulted in verbal arguments which placed further strain on the relationship. The Respondent is aware of this. They attempted marriage counseling but the counseling failed.
The Petitioner left the matrimonial home in or about August 2019 and the parties have since made no attempt to reconcile or cohabitate. The Petitioner alleges that due to the Respondent's behavior he has experienced depression, embarrassment and hurt from the continued stress of the relationship.
The Respondent has denied all the allegations of cruelty contained in the Petition and averred that she has never been cruel towards the Petitioner. The Respondent alleges that at the time of the marriage she was unaware of the Petitioner's homosexuality which was the cause of the breakdown in the marriage. She further alleged that he admitted to being a homosexual and has since left the matrimonial home to live with another male whom he admitted was his lover. The Respondent also stated that the Petitioner's lover has contacted her to inform her that the Petitioner loves him and not her.
The Respondent further alleges that the Petitioner is guilty of acts of homosexuality contrary to the Matrimonial Causes Act Ch. 125 Section 16(1) (e) and that he is seeking a divorce by lying to the Court that she has treated him with cruelty
She averred that the “things” the Petitioner called cruel were her way of helping him build a life of value.
She states that all of the arguments were around her helping him and giving him advice. She acknowledged the age difference of 19 years. She stated that it allowed her to help him. She averred her main goal was to understand what he was going through and to help him.
She states that she was able to find him a job. She confirmed that he was reported to the police multiple times in Harbour Island and she also confirmed that she asked him to stay away as she was afraid. She had to protect herself as well.
She became aware that the Petitioner was an active bi-sexual after one year of marriage, and that it was fine that he would go out with his friends because she cared for him.
She never disrespected him for being homosexual, she tried to understand the struggles he was going through as a homosexual.
She stated that she never kicked him out of the home because of his homosexuality, but she was trying to help him change the course of his life. She did not try to help him in a rude way, but in a gentle way, but the Petitioner was a proud man and her acts were not well received.
Under cross-examination she admitted to putting him out of the home on several occasions. The first time was 2 years after the marriage.
She knew he was homosexual one year after the marriage as she saw it with her own eyes. She accepted his lifestyle. She denied calling him gay or homosexual or speaking to him in a harsh manner.
She acknowledged that there was a 19 year age difference between them. She accepted his bi-sexuality because she loved him.
She denied going to his father to pray the bi-sexuality out of him but admitted that she would go to his father to seek help for him on his issues.
The Respondent denied having a dominant personality but accepts that she has very strong values and standards.
She states that the Petitioner was not the strongest person and that was why she was there to support him. She denied stifling him or emasculating him.
She denied that money was important to her.
She stated that the Petitioner was cruel to her but she accepted his bi-sexual life and his homosexuality. She admitted to getting him banned from the United States of America and further denied using any derogatory terms or emasculating him.
Whether the Petitioner has been treated with cruelty by the Respondent as defined in the Matrimonial Causes Act so as to justify the granting of a decree nisi dissolving their marriage.
The Petitioner relies on the interpretation of cruelty as established in Gollins v Gollins [1963] AER 966 where it was held that cruelty is established where the physical and mental health of the two spouses are normal and the conduct of the Respondent is so bad that the other should not be called to endure it.
Further the Petitioner relied on inter alia Whacheil v Blower BS 2004 SC 71 where the court held that intention was not a prerequisite to establishing cruelty, rather the effect of the conduct on the Petitioner.
Finally the Petitioner submits that there is no defence pleaded other than a bare denial as established by Turner J in Mills v British Colonial Developmental Company Limited t/a British Colonial Hilton Nassau 2015 1BHS J No78 in citing Jessel MR in Anglo-Italian Bank v Weils who said:-
“When a Judge is satisfied not only that there is no defence but no fairly arguable point to be argued on behalf of the Defendant, it is his duty to give judgment for the Plaintiff.”
The Respondent in her submissions simply denies that there was any cruelty when the Court considers the evidence of both parties. The real reason for the Petition she maintains was to find a way out of the marriage to start life with his male friend.
The Respondent further submits that the Petitioner does not meet the test for cruelty and should be dismissed.
The Matrimonial Causes Act. Ch. 125 sets out the grounds on which a petition may be presented for the dissolution of the marriage. Section 16(1) states:-
“16. (1) A petition for divorce may be presented to the court either by the husband or the wife on any of the following grounds that the respondent —
(a) has since the celebration of the marriage committed adultery; or
(b) has since the celebration of the marriage treated the petitioner with cruelty; or
(c) has deserted the petitioner for a continuous period of at least two years immediately preceding the presentation of the petition; or
(d) has lived separate and apart from the petitioner for a continuous period of at least five years immediately preceding the presentation of the petition; or
(e) has, since the celebration of the marriage been guilty of a homosexual act, sodomy or has had sexual relations with an animal:
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