Sikaffy v Sikaffy

• Jurisdiction: Belize
• Court: Supreme Court (Belize)
• Judge: Dickson, J.
• Judgment Date: 03 August 1976
• Docket Number: Petition No. 10 of 1975
• Date: 03 August 1976

Supreme Court

Dickson, J.

Petition No. 10 of 1975

Sikaffy

and

Sikaffy

Mr. M.C. Turton for Petitioner

Mr. D.R. Lindo for Respondent

Family Law - Husband and Wife — Divorce

Family Law - Husband and Wife — Order of non-cohabitation

Facts: The ground was allegation by husband of desertion by wife — Cross-petition by wife on grounds of cruelty — Non-cohabitation order in force in favour of respondent wife — Alleged desertion terminated by order — Usual for divorce court to inquire into matter afresh where previous proceedings were before the magistrates for maintenance

Order granted in previous proceedings on grounds of persistent cruelty — Person against whom order made petitioned for divorce on grounds of desertion — Effect of valid order of non-cohabitation on subsequent divorce proceedings where one party alleged desertion by other party to marriage

Held: Allegation of cruelty corroborated and proved — Petitioner's petition dismissed — Respondent's Cross-petition granted — Custody of two children granted to respondent.

Petitioner's Petition dismissed.

Dickson, J.

1 The petitioner, Mr. Sidney Sikaffy, by his petition as amended prayed that his marriage with Mrs. Nadine Sikaffy be dissolved on the ground of desertion. He also claimed custody of the two children of the marriage, namely, John Sikaffy born on 3rd June, 1969, and Gina Sikaffy born on 16th June, 1970. The parties were married on 29th June, 1968, at the General Registry, Belize City. They are both Belizeans and are domiciled in Belize.

2 The respondent in her answer to the petition denied the allegation of desertion, and she has cross-prayed that the marriage be dissolved because of the petitioner's cruelty. In this case, I do not propose to give lengthy narratives of evidence. These are contained in the notes of evidence. It is sufficient to make findings of fact on the evidence, and to apply the law to the fact.

3 The petitioner as he was bound to do, in paragraph 6 of his petition as amended, pleaded that there were previous proceedings in the Magistrate's Court in Belize City relating to the marriage. He further averred that as a result of the respondent's application to the summary jurisdiction, she obtained an order of noncohabitation, custody of the children and maintenance, based on the ground of persistent cruelty. A certified copy of the proceedings in the Magistrate's Court was admitted in evidence as Exhibit P 2. The order was made under the provisions of sections 2 and 3 of the Married Persons (Protection) Ordinance, Chapter 185, which are similar in terms respectively with sections 5 and 4 of the English Summary Jurisdiction (Married Women) Act, 1895. Where, as in this case, the Magistrate's Courts have power to make provision that a wife is no longer bound to cohabit with her husband, while such a provision is in force, it has the effect in all respects of a decree of judicial separation on the ground of cruelty: section 4(a) of the Married Persons (Protection) Ordinance. Also 12 Halsbury 3rd Ed. para. 510.

4 What is the effect of a decree of judicial separation or non-cohabitation order? A decree of judicial separation or the making of a non-cohabitation clause terminates desertion as long as the decree remains in force: Halsbury ( ibid) para 511, In Harriman v Harriman [1909] P. 123: the respondent in that case had deserted the petitioner and never returned to her or contributed to her support. In March, 1906, a stipendiary magistrate, upon the complaint of the petitioner that the respondent had deserted her, made an order under section 5 of the Summary Jurisdiction (Married Women) Act, 1895, that the respondent should pay a specified weekly sum to the petitioner for her support; the order contained also a provision under section 5 (a) of the Act that the petitioner should no longer be bound to cohabit with the respondent. In 1907, the respondent committed adultery, and in December, 1907, the petitioner presented a petition for dissolution of the marriage on the grounds of adultery and of desertion for two years without reasonable excuse. It was held inter alia that the effect of the non-cohabitation clause in the Magistrate's order was to prevent the continuance of the desertion after the date of the order; that there had therefore not been desertion without reasonable excuse for two years by the respondent, so as to satisfy the requirement of section 27 of the Matrimonial Causes Act, 1867; and that the petitioner was not entitled to a decree for dissolution of the marriage, In that case, Cozens Hardy M.R. in delivering his judgment said at page 121:

“It was contended though not very strenuously, that desertion without reasonable excuse for more than two years had been proved. But in my opinion it is impossible that the petitioner, who in March, 1906, obtained an order that she should no longer be bound to cohabit with her husband, can be allowed, in the absence of any further evidence on her part, to say that her husband's desertion continued after that date.”

5 The kernel of his Lordship's judgment is contained in this vital passage:

“By obtaining the order she not only expressed her desire that cohabitation should not be resumed but prevented it. The order cannot have less effect than separation deed made after desertion and such a deed would prevent the period of desertion from running on.”

6 Harriman v. Harriman was approved by the House of Lords in Cohen v. Cohen [1940] A.C. 631 at p. 644.

7 In the instant case, although (as we have seen) there was an averment in the petitioner's pleading to the previous proceedings in the Magistrate's Court, petitioner's Counsel had not considered the implications of those proceedings and in fact they did not occur to him until this Court raised the matter during the hearing. At that stage, a copy of the previous proceedings was not available to this Court and an adjournment was applied for...