Heron-Muir (Alva Melford) v Maureen Veronica Heron-Muir

• Jurisdiction: Jamaica
• Judge: SYKES J
• Judgment Date: 21 October 2005
• Judgment citation (vLex): [2005] 10 JJC 2102
• Court: Supreme Court (Jamaica)
• Date: 21 October 2005

IN THE SUPREME COURT OF JUDICATURE OF JAMAICA

IN THE FAMILY DIVISION

BETWEEN

ALVA MELFORD HERON-MUIR

PETITIONER

AND

MAUREEN VERONICA HERON-MUIR

RESPONDENT

Miss Hilary Phillips QC instructed by Grant, Stewart, Phillips and Company for the petitioner

Mr. Gordon Steer instructed by Chambers, Bunny and Steer for the respondent

FAMILY LAW - Divorce

1 CONTESTED PETITION FOR DIVORCE

SYKES J

2 1. A contested petition for divorce in these courts is so rare that not many persons can recall any. The parties were joined in holy matrimony by the venerable Reverend David Clark, a Marriage Officer of Jamaica, at the famous first Missionary Church, 58 East Street, Kingston, in the halcyon days of the city of Kingston on May 10, 1958. It was the first marriage for both of them. They were twenty eight years old at the time of the marriage.

3 2. As is common with many young couples then and now, they lived at several places in the city before finally settling at 25 West Kirkland Heights, Kingston 19. This is not the first petition filed by Mr. Heron-Muir. He filed a previous on December 13, 2002 (Suit No. F 2002/ M147) which was withdrawn in January 2003. He served the 2002 petition on his wife in December 2002. He filed this petition on February 17, 2004. Mr. Heron-Muir moved out of the matrimonial bedroom in December 2002. The couple sold the house at 25 West Kirkland Heights in March 2004. Mrs. Heron-Muir went to live in Miami in the United States of America while Mr. Heron-Muir went to live in another part of Kingston. They have not lived under the same roof since save for a visit to Miami by Mr. Heron-Muir in August of 2004.

4 3. What has been stated so far are the agreed facts. The respondent filed her answer on October 27, 2004, in which she says that (a) the marriage has not broken down irretrievably and (b) the parties have not separated and consequently have not been living separate and apart for twelve months before the filing of this petition. She vigorously challenges the assertion in Mr. Heron-Muir's petition: the Petitioner vacated the matrimonial bedroom on or about December 13, 2002, and has not resumed cohabitation with the Respondent. Her petition concludes with a prayer for a dismissal of the petition. The respondent amended her petition by deleting all the words after the word "petition" in paragraph one of her prayer. I shall examine the applicable law.

5 The relevant law

6 4. Sections 5 and 6 of the Matrimonial Causes Act (MCA) are the relevant provisions to be examined to resolve this petition. Section 5 provides

• (1) A petition for a decree of dissolution of marriage may be presented to the Court by either party to a marriage on the ground that the marriage has broken down irretrievably.

• (2) Subject to subsection (3) in proceedings for a dissolution of marriage the ground shall be held to have been established and such decree shall be made if and only if the Court is satisfied that the parties separated and thereafter lived separately and apart for a continuous period of not less than twelve months immediately preceding the date of filing of the petition for that decree.

• (3) -A decree of dissolution of marriage shall not be made if the Court is satisfied -that there is a reasonable likelihood of cohabitation being resumed.

7 Section 6 is as follows

• (1) The parties to a marriage may be held to have separated notwithstanding that the cohabitation was brought to an end by the action or conduct of one only of the parties.

• (2) The parties to a marriage may be held to have separated and have lived separately and apart notwithstanding that they have continued to reside in the same residence or that either party has rendered some household services to the other.

8 5. This statute changed the law considerably in Jamaica in respect of divorce. It removed the old law based primarily upon faultfinding with one sole ground, namely, irretrievable breakdown. Conceptually, this means that there is no necessity for the court to find any of the parties at fault. Once the marriage has irretrievably broken down with no prospect of reconciliation and the procedural hurdle of section 5 (2) is overcome, the Court must grant the petition.

9 6. It is well known that these provisions are virtually identical to sections 48 and 49 of the Family Act (1975) (Cth) (FA) of Australia. The Jamaican Act was passed in 1989 and by then there was a number of decisions of the Australian Family Court on sections 48 and 49 of the FA which are the same as sections 5 and 6 of MCA. I have not detected any difference in wording in the Jamaican legislation that would suggest that the Jamaican legislature intended to avoid or modify the interpretation put upon the equivalent Australian provisions. It is therefore reasonable to conclude that the Jamaican Parliament intended to import, for the most part, the Australian interpretation directly in to our jurisprudence. I say for the most part because my research has unearthed the Australian practice of requiring corroboration, in some cases, of the petitioner's evidence that they separated and lived separate and apart for twelve months before the presentation of the petition where the parties are still living under the same roof and have performed household services for each other. I shall indicate my views on this practice later on.

10 7. I should point out that neither the MCA nor the FA defines the phrases "broken down irretrievably" or "separated and thereafter lived separately and apart". It is therefore for judges to define these terms. Before I define these terms, let me state the conclusions that can be drawn just from the wording of the MCA:

• a. -the procedural bar of separation and living separate and apart for twelve months immediately preceding the date of filing of the petition for the decree of dissolution of marriage must be met before the Court can grant the petition;

• b. it is not necessary that both parties agree to dissolve the union. The decision of one to end the marriage relationship is sufficient It does not matter what the reason is;

• c. separation can still be established once the consortium vitae has been brought to an end even if the parties live under the same roof and provide household services for each other;

• d. it is quite possible for the marriage to have broken down irretrievably but the petition cannot be presented unless the twelve-month period of separation and living separate and apart has not elapsed. The aim of the legislature seems to be to provide the parties with an opportunity to salvage the marriage.

11 8. I now turn to defining the phrase "separated and thereafter lived separate and apart" . From my research it appears that the leading case is In the Marriage of Pavey 25 FLR 450. In that case the unanimous opinion of the Full Court of the Family Court of Australia approved the following definition of separation given by Watson J in In the Marriage of Todd (No 2) 25 FLR 260, 262

In my view "separation" means more than physical separation - it involves the destruction of the marital relationship (the consortium vitae). Separation can only occur in the sense used by the Act where one or both of the spouses form the intention to sever or not to resume the marital relationship and act on that intention, or alternatively act as if the marital relationship has been severed. What comprises the marital relationship for each couple will vary. Marriage involves many elements some or all of which may be present in a particular marriage - elements such as dwelling under the same roof, sexual intercourse, mutual society and protection, recognition of the existence of the marriage by both spouses in public and private relationships.

12 9. The Full Court made two modifications to this dictum, one stylistic and the other substantive. The Court said it would be more felicitous to use "breakdown" rather than destruction because the statute uses "breakdown" (see Pavey at 454). The substantive alteration is that the court would add to the list of marriage elements "the nurture and support of the children of the marriage" (see Pavey at 455).

13 10. The Full Court in speaking of section 48 stated that what the legislation contemplates is a "very serious alteration in the marriage, which the Act calls a 'separation', and the continuance of that state, for a period of twelve months" (see Pavey at 454).

14 11. To get a fuller sense of what is meant my the marital relationship or consortium vitae I adopt the following dictum of Selby J in Crabtree v Crabtree (No 2) [1964] ALR 820 as quoted by Wilczek J in In the Marriage of Batty 83 FLR 153, at, 156

[T]he question of consortium is ... a different matter from mat of physical separation. Consortium has been defined as a partnership or association; but in the matrimonial sense it implies much more than these rather cold words suggest. In (sic) involves a sharing of two lives, a sharing of the joys and sorrows of each party, of their successes and disappointments. In its fullest sense it implies a companionship between each of them, entertainment of mutual friends, sexual intercourse - all those elements which, when combined, justify the old common law dictum that a man and his wife are one person. It is not necessary that all these elements should be present to establish the existence of a matrimonial consortium; one or very few may exist and they may show that the matrimonial consortium has not been destroyed; that it is still alive, although in a maimed and attenuated form.

15 12. I also...