Mills v Mills

JurisdictionBahamas
CourtCourt of Appeal
JudgeHogan, P.,Duffus, J. A.
Judgment Date18 Nov 1976
Neutral CitationBS 1976 CA 1
Docket NumberNo. 7 of 1976

Court of Appeal

Hogan, P.; Duffus, J.A.;

No. 7 of 1976

Mills
and
Mills

Family law - Divorce — Grounds on which divorce may be obtained in the Bahamas — Applicability of English Matrimonial Causes Act, 1973

Hogan, P.
1

This case comes to the court on a short but important issue.

2

The respondent petitioned the Supreme Court for a dissolution of his marriage on the ground that his marriage with the appellant had irretrievably broken down. The parties had lived separate, and apart for nearly twenty-six years. The breakdown was admitted by the appellant, but, in her answer, she denied, in effect, that this was a valid ground for a decree of divorce in the Bahamas. Her counsel contended that the order was without precedent in this country.

3

After a careful analysis of the statutory and other authorities, the learned chief justice in the court below came to the conclusion, which he described as “novel and startling”, that, because the statute law of the Bahamas had imported the law of England relating to the dissolution of marriage, the respondent was entitled to the relief he claimed. The matter was taken no further at that stage, however, pending the possibility of an appeal.

4

The appeal has been lodged on the sole ground that the chief justice erred in law when holding that the Court of the Commonwealth of the Bahamas has jurisdiction to hear and determine the petition herein for a decree dissolution of marriage on the ground of irretrievable breakdown of the marriage.

5

In stating his reasons for his decision the learned chief justice began with a valuable historical examination of the relevant statutes commencing with the Matrimonial Causes Act, 1879, (“MCA 18?9”), which carried the long title “An act to consolidate and amend the laws relating to divorce and matrimonial causes within the Bahama Islands”.

6

Section 2 of the Act provided that the Bahamian Court for Divorce and Matrimonial Causes should continue to have the same jurisdiction within these Islands as the Court for Divorce and Matrimonial Causes established under and by virtue of the Act of Parliament of the 20 th and 21 st years of her then Majesty's Reign, chapter 85, had in England, except in so far as such jurisdiction was altered by the Act.

7

In general this Bahamian Act of 1879 followed closely the terms of the English Matrimonial Causes Act 1857 (“MCA 1857”), reproducing verbatim most of the sections in the English Act. Coming to the grounds for divorce, however, it adopted a somewhat different approach. It applied the English law by reference; saying in Section XXV:–

“XXV. It shall be lawful for any husband or any wife to present a petition to the said court, praying that his or her marriage may be dissolved on any ground on which a similar petition could be presented to the Court of Divorce and Matrimonial Causes in England, and every such petition shall state as distinctly as the nature of the case will permit, the facts on which the claim to have such marriage dissolved is founded”.

8

From this the learned chief justice deduced that the Bahamian legislature, appreciating that the grounds for divorce in England might change from time to time, deliberately set forth, on a policy of adopting referentially whatever grounds might in the future be available in England. This, he thought, brought into operation the principle of construction enunciated by Lord Simmer in Union of South Africa v. Simmer (1918) A. C. 591 when he said (p. 596):–

“In the opinion of their lordships, it is not a legitimate interpretation of mere amending provisions to hold that they completely alter the character of the principal law, unless clear language is found indicating such an intention.”

9

The next step noted by the learned chief justice was the enactment in 1896 of the Bahamian Supreme Court Act (SCA 1896) which constituted the Supreme Court of the islands and by section XXXIII (subsequently re-numbered as section 29 in Cap. 35) vested in it, inter alia, the jurisdiction of the Court for Divorce and Matrimonial Causes and the jurisdiction of the High Court of Justice in England, which was not vested in the Supreme Court by other means, and in so far as such jurisdiction was applicable to the Bahamas. The section also vested in the Supreme Court the powers, authorities and jurisdiction of the lord High Chancellor of England and the Lord Chief Justice of England which were not already vested and in so far as the same should be applicable to the Bahamas.

10

The repealing provisions in “SCA 1896” were somewhat unusual. The main repealing section was section III which, inter alia, repealed those acts mentioned in the second schedule to the extent set forth in the last column of that schedule. The schedule did include the 1879 Act but section 25 was not mentioned in the last column so it escaped the appeal affected by section III but Section XLVII went on to make further provision for repeal.

11

It reads as follows:–

“Old procedure XLVII. The procedure prescribed in the Acts and parts of Acts

Acts to apply contained in the second schedule hereto shall be the procedure

till repealed to be used in the Supreme Court, until by Rules or Orders of court made under this Act provision is made for the pleading, practice, (sic) and procedure in the Supreme Court, and upon the making and publishing of such Rules and Orders as aforesaid the said Acts and parts of Acts in the said schedule shall be repealed.

How appeal to Provided, that such repeal is duly notified in the manner and

be notified form in which the action t of the Government of the Colony is usually notified.

Repeal may be Provided, also, that where provision is made as aforesaid in

gradual respect of the procedure prescribed by any one of such Acts or parts of Acts as aforesaid, such Acts or part of an Act, upon due notification as aforesaid, shall be repealed notwithstanding that any other Act or part of an Act contained in such schedule as aforesaid is not repealed as aforesaid.

Powers given And provided further, that all the powers and authorities

thereunder contained in the said Acts and part of Acts shall be vested in and

not to lapse continue to be exercised by the Supreme Court under such Rules and Orders of court as aforesaid notwithstanding the repeal of such Acts or parts of Acts as aforesaid.”

12

This is not an easy section to interpret — and I'm not sure that it is wholly consistent and intelligible but a general intent appears to emerge with reasonable clarity and the difficulty of giving any effect to the second proviso, in view of the generality of the repeal, need not now detain us. Where provision for procedure was made in an Act mentioned in the second schedule the intention appears to have been to let that procedure continue until new rules or orders were made, for “the pleading, practice, and procedure in the Supreme Court”, whereupon it would be superseded by the new provision. Thereupon the Act would be repealed but the substantive powers and authorities contained in the said Act would continue to be exercised by. the Supreme Court under the new rule etc., notwithstanding the repeal.

13

The intention might, perhaps, have been made more readily apparent if the section had been expressed to repeal only the procedural provisions in the acts named. Be that as it may the overall effect of the section including the provisos appears to have attained that end by other means: and by means which would void or minimize the difficulty of determining precisely what was covered by the expression “procedure”.

14

Consequently I am inclined to agree with the learned chief justice that the omission of this section XXV from the 1929 and 1965 Revised Editions of the Laws of the Bahamas may be open to question since, unless there has been some other repeal that has not been brought to the attention of the learned chief justice and of this court, the powers and authorities conferred by Section XXV as originally enacted would remain vested in the Supreme Court.

15

The matter may not have been thought one of great importance since section XXXV, as originally enacted, of SCA 1896 conferred very similar powers on the judges of the Supreme Court although the language of section XXV is more peremptory and, in so far as it differs from the section in the later enactment, it would appear to have continuing force and effect. Section XXXV of SCA 1896 has been re-numbered as section 32 in the current edition of the Revised Laws, the 1965 Edition, and, with the incorporation of later amendments, reads as follows:–

“The Chief Justice and every puisne judge shall be a judge ordinary of the Probate Side on the Divorce and Matrimonial Side of the court; and, subject to any rules to be made under this Act and to the laws in force in the Colony, the jurisdiction of the court of Probate, Divorce and Matrimonial Causes and proceedings may be exercised in conformity with the law and practice, so far as they are applicable, for the time being in force in England which shall be deemed to be hereby extended to the Colony”.

16

The learned chief justice stated that the first part of this section, dealing with Probate had, for years, been taken without question to mean that the English Probate practice was in force in the Territory and that the latest edition of Tristsam and Coote's Probate Practice was constantly referred to.

17

As for divorce, the learned chief justice drew attention to a number of Bahamian cases in which, relying on s. 32 of ‘SCA 1896”, the Supreme Court had acted under powers derived from English law e.g. Colebrook v. Colebrook [1970] No. 61 where action had been taken under section 14 (1) of the English Matrimonial Causes Act 1965, which deals with dissolution on a presumption of death and Anderson v. Anderson [1955] No. 41, where s. 18 (1) (b) of the English Matrimonial Causes Act 1950 had been invoked in regard...

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