Lockhart v Lockhart
| Jurisdiction | Bahamas |
| Judge | Hall, J. |
| Judgment Date | 04 April 1995 |
| Court | Supreme Court (Bahamas) |
| Docket Number | No. 95 of 1994 |
| Date | 04 April 1995 |
Supreme Court
Hall, J.
No. 95 of 1994
Ms. Jeanne I. Thompson, counsel for the petitioner.
Mr. Roger L. Minnis, counsel for the respondent.
Family law - Husband and wife — Application for divorce by husband on ground of wife's cruelty — Husband admitted adulterous affair — Finding that any cruelty present was on the part of the petitioner and not the respondent — Petition dismissed.
The parties, both of whom are counsel and attorneys of the Supreme Court, were married on 18 October, 1975.
On 10 January, 1994, the husband petitioned the court for divorce, alleging cruelty. The particulars were that the respondent was manipulative; had committed several serious financial irregularities after she had joined his practice; had refused to assist the family financially (there are two children of the marriage, one of whom, although she would have attained her majority before the petition was filed, is at present enrolled in a university in Canada); had become “a religious fanatic”; had once threatened the gone so far as to stage petitioner admitted an petitioner with a rifle; and had her own “kidnapping”. The adulterous relationship which had commenced in 1982 and was continuing.
In what must stand as one of the most remarkable pleadings ever filed in this court, the respondent (who does not cross-petition for divorce) in her answer, which, with its affidavit but exclusive of exhibits, runs for 30 pages attacks the petitioner's allegation of cruelty as:
“… duplicitous and is a carefully orchestrated plan on the part of the petitioner to force the respondent to cross-petition so that the petitioner can save face by withdrawing his petition whilst at the same time achieving his desired objective …”.
She continues that she has told the petitioner that “she does not WANT a divorce” and that she herself had “ample grounds to divorce the petitioner since 1977/78”. She accuses the petitioner of “attempting to manipulate the court system by ‘trumping’ up charges against [her]” and that he has admitted to her on a number of occasions that the only ground he could possibly use is that of five years separation. She exhibits what she describes as “the petitioner's research notes in his own handwriting”, on the provisions of Section 29 of the Matrimonial Causes Act, Chapter 111. She names nine women in addition to the woman with whom the petitioner admits his adulterous relationship as a partial list of “his many paramours”. She denies financial irresponsibility in the home or financial impropriety in the office. She pleads that the petitioner had “ceased to live a moral lifestyle” after he was called to the Bar in 1978, and she “neither admits nor denies becoming a religious fanatic during the course of the marriage as this is a purely subjective assessment”; however, she does admit to the practice of her faith in a way which, employing the most neutral word one can use to describe it, is enthusiastic. Her answer is liberally laced with scriptural references and quotations.
She prays that the petition be dismissed because:
“By virtue of her Christian convictions and religious beliefs, the respondent would be a social outcast in her church, and she would be deprived of dying as a married woman which would be an anathema to her own religion and moral grounds as the word of God clearly states in Matthew 19:9 in the words of Jesus, ‘And I say unto you whoever shall put away his wife, except to be for fornication and shall marry another committeth adultery; and who so marrieth her which is put away doth commit adultery and further in 1 Corinthians 7:10 & 11, in the words of Saint Paul, ‘And unto the married I command, yet not I, but the Lord let not the wife depart from her husband: But if she depart, let her remain unmarried or be reconciled to her husband; and let not the husband divorce his wife’.”
Thus was issue joined between the parties, which resulted in a hearing requiring nine court fixture days (spread between 8 April, 1994 and 27 January, 1995, as my ordinary assignment on the criminal side of the court permitted) six of which were devoted to the reception of viva voce evidence. My longhand notes run to 118 foolscap pages. A court reporter was available for four of these days and the transcript so recorded is 497 pages long.
I do not intend to traverse the bulk of the evidence in this judgment because, in my view, much of it was irrelevant and inconsequential and of assistance only so far as it highlighted the spite, bitterness and pettiness in which the parties wont to engage. Indeed, were “irretrievable breakdown” or “irreconcilable differences” grounds for divorce in The Bahamas, a mere formal nod to the evidence, to complete the record, would have been all that is required for the judgment in granting the petition for divorce since it is abundantly clear that the parties have become so divergent in their attitudes, orientation and lifestyle that, in the respondent's own words, “it would take a miracle [by which she means extraordinary divine intervention] for the marriage to survive”.
I have often considered it necessary to remind practitioners on this side of the court that, notwithstanding the extensive amendments enacted by Parliament in 1983, by Section 16 of the Matrimonial Causes Act, Chapter 111 (“the Act”) divorce in The Bahamas is based on the concept of the “matrimonial offence”. One such “offence” according to Section 16(1)(b) is “cruelty” which, by Section 2, is liberally defined as including:
“…voluntary conduct reprehensible in nature or which is a departure from the normal standards of conjugal kindness on the part of one party to a marriage thereby occasioning injury to the health of the other spouse or a reasonable apprehension of it on the part of that other spouse and being conduct which, after taking due account of all the circumstances of the case, would be considered to be so grave and weighty a nature that should such other spouse be called upon to continue to endure it, would be detrimental to his or her health…”.
P.M. Bromely in the 4 th Edition of his Family Law, at page 205, refers to the matrimonial offences as the :
“…traditional theory [which] implies that an innocent spouse should not be divorced against his or her will, particularly bearing in mind that many spouses have a conscientious objection to divorce…”
By section 18(c) and (d)(ii) of the Act, the court may dismiss a petition for divorce if it finds that the petitioner has during the marriage been guilty of adultery or cruelty towards the other party to the marriage and, by section 16(4) and 19(1)(b), even if a petitioner establishes cruelty, the court must be satisfied that the petitioner has not in any manner condoned the cruelty.
It was against this legal background that at the commencement of day six, 19 December, 1994, when the shape of the evidence had become apparent, that I alerted counsel that I would require written submissions from them at the close of the case and that they should concentrate on the question of condonation. At the close of the evidence on day eight, 21 December, 1994, I adjourned the matter into chambers, and I made the following observations to the parties and their counsel:
“THE COURT: (a) First of all, let me say that I don't expect or invite any comments by either side on what I'm about to say, not today. I suspect that such comments will be forthcoming on [the day set for submissions]. It is with some hesitation that I proceed to what I am about to say, because I recognize that it may be perceived that I may have prejudged the issues which this case has thrown up. All of the evidence has not come in, and I have yet to hear submissions and addresses; but, on the other hand, I think that it would only be proper for me to indicate to counsel what impressions I have of the evidence as I have heard it. I remain, and I say for the record, open to persuasion having heard and read such submissions as would be forthcoming.
(b) I know that a conventional view of the role of a judge in an adversarial system is that, on this side of the court, as on any other side of the court, the judge sits back passively; parties file whatever actions they wish to in court and, except in the most egregious circumstances, the court at the end of the day decides what the decision is.
(c) I am not sure that that conventional and passive view of the judge's function is altogether in all cases correct, and this is on the record so that if counsel feel that I am in error, no doubt they would invite the Court of Appeal to set me right.
(d) I am concerned that in this case there is a large volume of evidence I would have to consider when it comes to writing a decision in this matter. Much of the evidence as I understand it and as I recall it I propose to ignore, because I do not see that it is relevant to the issues in this suit. Some of it may perhaps be relevant to ancillary matters, should we reach that stage, and there may be sound practical reasons why counsel would not have wished to, as it were, insulate the evidence relevant to the hearing of the petition from other matters to avoid at a later stage a replication, but, nevertheless, certainly any evidence that I as the judge deciding the petition would consider I would think would have to be confined to what is relevant to the petition and much of what I would have heard and noted would be matters that I would not pass on.
(e) Some other matters may be relevant to some other applications, which may have been filed, or may yet be filed, and I certainly would not touch any such question, such as those dealing with the business relationship between the parties. I certainly will not touch any such evidence unless it should turn out to be absolutely necessary to the determination of any issue that I have to...
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