T.D v P.D

• Jurisdiction: Bahamas
• Judge: Strachan, J
• Judgment Date: 01 November 2023
• Docket Number: 2023/FAM/div/00077
• Court: Supreme Court (Bahamas)

BETWEEN

T.D

Petitioner

and

P.D

Respondent

and

A.N

Co-Respondent

BEFORE:

The Honourable Madam Justice C.V. Hope Strachan

2023/FAM/div/00077

IN THE SUPREME COURT

Family Division

Family law — Divorce — Adultery — Cruelty — Desertion — Petitioner claiming adultery, cruelty and desertion by respondent — Respondent claiming desertion by petitioner — Whether the actions by the Respondent amounted to adultery, cruelty and/ or desertion — Whether the actions by the Petitioner amounted to desertion — Exercise of the Courts discretion where discretion has not been prayed in the Petition — Exercise of the courts discretion where discretion statement not in conformity with R.28 Matrimonial Causes Rules

APPEARANCES:

Yolanda Rolle for the Petitioner

Ranard Henfield for the Respondent

No appearance for the Co-Respondent

RULING

Strachan, J

;

Background Facts

1 The Petitioner, T.D, and the Respondent, P.D., were married at St. Mary Magdeline, Glinton's, Long Island on 15 ^th August 2015. The Petitioner is an administrative assistant and the Respondent is a ship master.

2 There are two children of the marriage namely J.B.M.D. born on 24 ^th July 2011 and P.Z.D born on 5 ^th December 2018.

3 By a Petition filed 13 ^th February 2023, the Petitioner, sought a divorce on three grounds, that since the celebration of the marriage the Respondent has committed adultery, the Respondent has treated the Petitioner with cruelty and that the Respondent has lived separate and apart from the Petitioner for a continuous period of at least two years immediately preceding the presentation of this Petition. As the third ground to which the Petitioner relied does not exist under the Matrimonial Causes Act, the court granted leave to the Petitioner to amend the petition. The third ground was amended to two years desertion.

4 The Respondent filed an Answer and Cross Petition on 13 ^th October 2023 admitting the allegation of adultery, however he denied the allegations of cruelty and desertion. He prayed for the dissolution of the marriage on the ground that since the celebration of the marriage the Petitioner has deserted the Respondent for a continuous period of at least two years immediately preceding the presentation of the petition.

5 Both the Petitioner and the Respondent gave oral evidence at the hearing of the matter in support of their case.

6 The Co-Respondent, A.N. did not enter an appearance, did not file an answer and took no part in the proceedings.

The Petitioner's Evidence

7 The Petitioner alleged in her Petition filed 13 February 2023 that:

PARTICULARS

• (a) Shortly after their marriage the Petitioner and the Respondent were forced to relocate from their native Long Island to live in Nassau after Hurricane Joaquin destroyed their home and forced the closure of their jobs.

• (b) The Respondent shortly after the move to Nassau became very controlling and even became physically abusive toward the Petitioner if she didn't cook him a meal, didn't in his opinion say the right thing or even wear the right thing. The Petitioner recalls being physically attacked by the Respondent even while holding their first child, who was at the time an infant in her hand.

• (c) The Respondent's behaviour and pattern became suspicious to the Petitioner as he began to sleep out and often would not come home for days on end without any form of communication to the Petitioner. This proved very stressful for the Petitioner who was caring for an infant and felt that she was being abandoned and forced to carry all of the weight of the family physically, emotionally and financially. The Petitioner suspected very early on that the Respondent was having an extra marital affair however, she could not prove it neither did she have any specific individual to suspect at the time.

• (d) During this period 2017-2018 the Petitioner not wanting to expose herself to any possible sexual sickness was not intimate with the Respondent and was in fact proposing, for the sake of peace and to give the Respondent some space, to visit her father out of the jurisdiction.

• (e) The Respondent found out about the Petitioner's plans and forced a sexual encounter between him and the Petitioner shortly after which the Petitioner discovered that she was pregnant, and the Respondent advised her that it was an intentional act on his part. Due to the state of their relationship this discovery caused the Petitioner to spiral into a state of depression to the point that she was unable to attend work for a period of two weeks (2) as the Respondent in his customary fashion continued to ignore the Petitioner and carry on with his suspicious and independent lifestyle to the exclusion of the Petitioner and their minor son.

• (f) During her pregnancy the Respondent remained physically abusive to the Petitioner who on several occasions was admitted to hospital for stress and with bruises from the Respondent's physical attacks.

• (g) After the birth of their daughter the Respondent denied paternity of the child and advised the Petitioner that he would not be taking care of the children of the marriage anymore and he took a job and relocated to Abaco Island leaving the Petitioner to care for the children of the marriage all on her own. The Petitioner being financially unable to bare this burden alone was forced to move in with her grandmother so that she and the children of the marriage could have a place to stay without fear of being evicted.

• (h) While in Abaco the Respondent sent the Petitioner a photo of a young lady, the Co-Respondent, advising her that this was his girlfriend and that he had moved on with his life. This devastated the Petitioner who then advised the Respondent that his chances with her and reconciling their marriage were exhausted.

• (i) The Petitioner continued to experience stress over this most embarrassing situation as many of her clients from her then place of employment would constantly tell her how they would see the Respondent out with the Co-Respondent in very intimate positions and circumstances.

• (j) The Petitioner had occasion to travel to Abaco as a decision was made to have their son live with the Respondent for a period during which time, she unknowingly encountered the Co-Respondent for the first time without incident.

• (k) Hurricane once again touched the Petitioner and the Respondent's life as the Petitioner had to aid in the rescue of the Respondent and their son after the passing of Hurricane Dorian. The Petitioner recalls that after the Respondent and their son were secured the Respondent in her presence got on his cellular phone and phoned the Co-Respondent to see if she as ok telling her “I can't live if you are not safe and ok.” The Petitioner was very insulted by this given all of her efforts to ensure that the Respondent was secured. This incident was compounded when the Petitioner on another rescue mission having fallen asleep in the deck of the boat had to be awoken to the news that while she is sleeping the Respondent was on the boat in very intimate moments with the Co-Respondent without shame, apology or discretion.

• (l) The Respondent after Hurricane Dorian was forced to relocate to Nassau and rented the Petitioner's former apartment unit in Faith Gardens. The Petitioner wishing to see if their relationship could be repaired and wanting her marriage to work in order to raise her children in a home with both parents actively in the home moved in with the Respondent and once again she, their daughter and the Respondent were all living under the same roof as their son was being schooled in Long Island and lived with his grandparents. Despite what the Petitioner thought was a glimmer of hope the Respondent's behaviour did not change and the Co-Respondent then began to torment the Petitioner's life. The Respondent resumed his practice of physically abusing the Petitioner and they would argue constantly.

• (m) Due to the Petitioner's suspicion she and the Respondent were not intimate since their last encounter that resulted in her last pregnancy. On being confronted with the question of his infidelity the Respondent would become hostile and deny the accusations of the Petitioner until one day when he out rightly told the Petitioner “I want new Pussy and I want to be single.”

• (n) The Respondent told the Petitioner that he wasn't giving her anything for the children and in the year 2020 the Respondent told the Petitioner that if she isn't prepared to give him sex, she must pack up her and her daughter and leave. On preparing to leave the Respondent once again attempted to physically assault the Petitioner who had to call the police for assistance to leave.

• (o) Within less than a week after the Respondent threw the Petitioner and their daughter out of his apartment the Co-Respondent moved in with her daughter, who the Petitioner suspects is also the Respondent's child. The Petitioner on confronting the situation was told by the Respondent that she is the devil as she is causing problems with him and his girlfriend.

• (p) The Co-Respondent during the pandemic constantly harassed the Petitioner constantly calling her cellular phone and telling her that she is taking better care of her son, who was living with his father at the time, than the Petitioner ever could. This angered the Petitioner.

• (q) The Respondent's abusive nature carries over even into his relationship with the Co-Respondent as the Petitioner's son and the Respondent were thrown out of the apartment by the Co-Respondent after a fight in which the Petitioner's son was almost hit by a missile.

• (r) The Petitioner has recently discovered that the Respondent has proposed to the Co-Respondent.

• (s) There has been no intimacy between the Petitioner and the Respondent since on or about the year 2018

The Respondent's Evidence

8 In his cross petition, the Respondent sought a divorce from the Petitioner...