Jean Victor Morin v Mary Cecile Morin (SCA 2 of 1985) [1985] SCCA 1 (12 December 1985)

. IN THE SEYCHELLES COURT OF APPEAL ". , Jean Victor Morin Appell~. vis Mary Cecile Morin Hespondem; Civil Appeal No.2 of 198) Mr. J. E.sparpn for the appeLl.arrt Mr. B. Georges for the responden~ JUDGMENT The parties to this appeal were married on the .23rd June 1948.. They had 10 children all of whom are now adults. The appellant", the husband,is .~ged 71 ana. the respondent,the wife, 66 years. In August ,1984 the wife filed a petition for divorce. in the Supreme Court on grounds of desertion and adultery of the~usband. Apart from asking that her marriage be dissolved, the wife asked the Supreme Court that she be granted the sale occupation of the matrimonial home~l3ituated at Ba Le Ste Anne, Praslin. The husband resisted,the wife~s petition. After hearing the case/the learned trial Judge ·de- livered judgment on January 29, 1985. . He accepted the evidence of the wife and her witnesses and rejected tha't of. the husband and his witnesses. .,He..found there was not'sufficien~ evidence on the issue of adultery but granted a decr-ee nisi of divorce on the grounds of the husband's desertion •. In that respect the learned trial " Judg~':3 judgment runs as follows:- "Nonetheless the desertion without just cause has :been amply proved and I am satisfied beyond.reason- de- able doubt that the respondent serted his wife for 10 years and that they have never cohabited (now appellant) since then." The learned Judge considered the plea that a d ecr-ee should not be granted because of unreasonable.delay in br.inging the petition to court. In that respect the learned Judge said he was not prepared to use his powers to di£zmiss the petition under the proviso to section 10 of the Matrimonial Causes Act (Cap. 72). -2-i;···· .1'11", Lear-ned occupa t i.on of' the matrimonial c cn si.dez-i.ng the law and the facts the learned an order granting of Judge then 'turned to the issue of sole . After Judge made of occupation to the \v'ifethe sole right the mf-;-(.~~2~;.,rn(ini8.1home home by the wife. at Ba i e St e •. ltnne Pr as l i.n •. Thl husband now app eaLs to this Court on several grounds vh i ch may be surumarized as follows;- 1.. proved since. The learned Judge was »Tong to find desertion and that the parties have never cohabited 2. Desertion was put an end to - (a) (b) By resumption to December 1982; or of cohabitation from August by the parties returning to the'matrimonial home coupled_ wlth a bona fide approach to the deserte~spouse tion or life together. wit~ a view toresump- 3. intolerable hou:3e is unsupported The finding that it would be impossible and for the parties to live in the same by the evidence. The learned Judge was wrong to grant the res- of the matrimonial sole right to occupation 4. pondent homo in the circumstances of this case. The ground of appeal based on unreasonable withdrawn by counsel for the appellant delay was at the specifically hearing Grounds of the appeal. '1& 2 I have considered the evidence o'f the wife and. of her witnesses wh i ch the learned Judge accepted. I find that on 51>::h evidence he could properly and reasonably ~ L---"~· find that the husband had deserted his wife without cause for a period ,of at least two years immediately preceding the presentation of the petition as alleged. in paragraph 7 thereofc. The husband returned to the house, ref.erred to as lithe matrimonial homeJl, in 1982 only to look after it while the '.'lifewas av/ay in Eng l.and, Hhen she came back, from Eng Land there may have been a period during which the parties lived under the same roof. However there was no ev'Ldence \Vl:.at~)Qeverthat there wa s a reconciliation between >t"hem. On 'tne corrt rany; t-he parties were actively at odds, splittiu[' the ·family into two camps, 1"or or against either 'I'r~' ."!?rinciple stated in the case of Bartram ...v , Bar- tram 1<;31+( 2 All E. R. 270 applies here, namely, that de- sertion once established continqes until it is proved to have been brought to an end by a.true reconciliation. These two grounds of appeal must therefore fail. "Grounds ;z & 4 ..:.;....;"""-...:.....;c"'--~<_.. _._ As I pointed out in my juagment in the Didon case -(Civil App ea. L No.3 of 1983) the Supreme Court has power to exclude a former spouse from the matrimonial home after the marriage has been dissolved or annulled by making a property adjustment order under section 24( 1) (b) .of the United Kingdom Matrimonial. Causes Act 1973 as illustrated in that case and in the English case of Allen v. Allen 1974 3 All E. H. 38~. Before such an order is made it would be ~ght for· the Supreme Court to have regard to the principles laid down in the Figaro case (Civil Side No. 132 of 1981, ( . ,;..---' judgment dated 9th March 1982) although in that case the jurisdiction to be exercised fill under section 21(1) of the StatuE o.rMarried \.,TomenAct (Cap. 95) 0 It :.s immaterial that the learned Judge purported t o act unr.er- power-s which did not apply in thi~ case: (section 21(1) of Cap. 95, s , 24 of CaP. 72·.and Lnher-errt jurisd.ictj.on under the common law). He in fact· had the necessary power-s under seltion 24(1)(b) of the U. K. Act of 1973 as explained in the Didon caseo The Le ar-ned Judge did consider the principl,es laid down in the Eigaro case. He dealt with the evidence with care and then mad e the follovling finding ant order:-" (now appellant) I1FT'Om the evidence before me concerning the marriage and the violence exhibitedb;ythe respondent wot. Ld be LmpossLoLe and intolerable I)::-1. I'-~i€:s to liVe toge'cller :r «:cO:c'd:~llgJ_y Gr,'"n:lt: riS';'; at to t.ne occupation oi- :3aie St6. A1Ule Praslin.tI the in the same house. the petitioner I find that for 'i t to the matrimonial home the sale I see no reason why such finding and order should be disturbed. The effect of the order is that the husband is deprived of his right of usufruct in the hous~dUring the witets lifetime. _AS this orderaf'f'ects a right in rem i1; should be transcribed orregistered in the"Land Regis- ~er,as the ease may be. As, agfl,ip.st the ,husband, the order will remain effective until his death or until the death of11is ,.,rife, if this happens sooner. I would theref~redism,iss th~ appeal. I would order the appellant to pay .the r-e sponderrt ls costs of this app eaL, . Justic e~-t5f-·Appeal -to;. ... In The ~ey:cheUes Cour-t of ;..tJ~~Cll Je~m VJ.cto":.'l'o-rin !"opellant E'Bs~:ondent JudfmePT, --'~----_._- :)f Lav ,~\.).. .fhe r-esncnrien t, in this . 'f" • '( . appea. I ("t·lrs.l-'crin") sued her husband the appellant (Hr.i'-brin) for divorce, on the grounds of desertion and ach.tlt.- -81'Y, in tile ~\lpreme Cour-t., :::l"o", also prayed' to be granted the right of $01e occupatzi onof the matrimonial home, stating that sh,,; has nowher-e else to live find th"t she finds it int-vierable to live in the same house 2S l':r. The Leerr.ed tr.ial judge (i.-Icod J.) found that the allegr.r~ion of aduJ.t- ,..el-';Y had not h"en proved with sufficienf particularity, but that the desert- ...,io:owi.thout j" -,at, cause had been amp1yproved. He held that ¥.r. £1.>rinhad deserted his~iifefor 10 years and that.. they had never, cohabited since then. He pronounced. ':" decree nisi. oJ: divorce in her,favour~and also gr-ant-ed her- the sole right to. the occupation of thematr:i.monial home. Hr. 1brin has appealed to this Cour-t, His advocate Hr. Esparon has not 'pursued h ie ground of appeal agaif1~t the finding 'of desertion,nor his ground complaining that the marriage. ought, not to have .been dissolved be- -cause of the unr-easonab'Le.xie. Lay in filingber petition on the part of Mrs. Horin. Er. l"'-'paronconcedes theori&inal desertion byJ.:Fr. H:irin in 1972 but contends thiit the parties resumed .cohabt.tataon in 1982 t~us putting an end to t ..•.ie desertion; As to this~. the fac;ts accepted by the judge were . that in },ugust 1982 Mrs. }lorin had to go to England for medical treatment. while she was <'. Hay. Nr. ¥.orin moved back into the matrimonial home, at the request of one of his sons, so tbatthe home should·.not be left unoccupied during hrs NiL, 's .absence, ~.h€:nMr:s. llirin returned. she found }fir. }brin .living in the house. After violentqu~rrelsJ and some abortive litigation, . J".ir. Horin was persuaded to leave the. house.. The learned judge found that in.these cf.rcums tances there had been. no resumption of cohabitation. In Bartram - v - L.irtram(1949) ....uption in the (iesert;ion' by a husband whose wife was forced by economicatl.. .tt ::c- AER270 it, was held that there was no'interr- [:DY a_tt~entj.on:~t9 htwo; In ·the-':samt? w~1Y~~-:ip-:--tp.~~p~e~;e~~<?_a5~, }·ir. t"brin re- to 'do \4ithher husban4Jnp)l~f,~,~~ntil1to his :--; . room nor paiq t,hefalOily home. Elle refused J. U ;,1J. sr;e caul i to turn him out of' the house. Clearly intnese circum- 5-t.l~~-iC8S there It.~E~_· no intention on the part of;l-1rs. ~brin to resume. cohahit- atiom.~Jith :'tr-.'l'in'in and no interruption of t·il-. I1:>rinls desertion of his vri.f.e , I agree ••iti" the learned judge Is findirlg .on this ,poirlt: " . The main ground of appeaf is tbatthe Learned judge was ,.rang to grant of occupation of t.i-Jt>matrimonial home in the ci.r-cum- }irs. stances. of thls case . I,brin the sole right . . Hr. Esparnn' does not dispute that the learnedjudf5e .had jurisdiction to the order excluding one' spoused'rom the ,DUltrimonial.horne, but he subnnts in purporting to exclude Hr-, I-briricJromthe matrLrnonial home permanently, judge went. beyond the powers' conferred upon him by sections 24 and 25 of fuglishH'1trimonial Causes Act,of.19J3. In the case of lli.don- v - Didon Appeal NO., of 1983) this Court,disnp.~sed an order giving the wife i'.ull.andexci~~ive an appeal by the husband use of the matrimop.ial the youngest. child of the marriage at t.ai.ned the age of 18 years. 'lliemany children of .the marriage, 10 in all, are aged from to 25 years and do· not live in the matrimonial home bulin.their. own 'Jheparties are now 65 and 72 years of Hr. Horin deserted : his - . Tife more than 10 years ago .arid since .--'. .-. - --, -.-;-- ..there.lereconstant then. has quarrels. hhen he did live with.hisldi'e, On one occasion, Mr-. l-brin broke both his .;ife I s arms, an inCident, he could not now remember, but which was proved beyond-doubt; His daughter r-Jrs. ,Geffradeposed thst;"both her father and. mother nao Vi{)len~. tempers, and that ber father had told her :I •••••• that, he could not live ·.:itn mothe r and that if 1", st.aye~V1itll mother he would kill her. " }oms. Geffra also said that if her father and mother were to live tQgether, would 'be murder, although she could no,t.say who would murder- whom. "-. -' ey:LdBl1ce'of ;: c: _~:0 - -_ --. --- - - .- ;·ir.• '·brin . }!2. S liescr1;b&d,bv: - :-•.• : ,.:..·.'c,__-'; __ -. - .r -': .-. -.. .- the lear-ned being so 9ontr'i,:;ytot.he ob:v::i,olis,tmthas to be }-jdi ell Lou: . . "lot>vzith st~,ndi!!G h:Ls age,' heisobyiously of' ,'1 violent and unccntrolhble disposHion. He h"sapparently ncdifHc',:J.tyin ,finding other pIace s ~p'Which to live , as h e has' done JoT' the past ten year-s-and more.• . Tn mak:ing "he order excludingHr~ J;Pij.n from the m«:tr:imonial home, the learned judge, to order a settlement of t6'ielYingonhis in addition the property ,a.1.soc ip,vokeg the ~r/;_~~ ~'~>::'l-.':~.:~.~ ,-,---,--;[< .....v' -;,>.:~ --'::.-:;;', -- ;--' power - court ',s inherent jurisdiction under the com,'llonlaw. In all the circumstances of this case, J dono,t :teel justified 'in' interfering r-i.ght .tooccypy the, 't!ith the,order matri'~~~N£:~i:~:~:,'~r.d,·.~cc.~d~~~d.·d1sTi,~,~.: gj"ving the>wife ;the, •••• 'r;;;if,,,:,;,,;,;,';.u7;)t~;2""'" ,i;' :" ~~.·;'~~tC' c day,. -of •••• ,;19~51 " , •• ,0 , .••••• ~. •• " ~:.~<::~_.__~ "-';,,;t": :>'_'''::... -, ¥,.¥ "'~ ;:::::<-:...-.;..-,~-_" ~-' ·!·;';·~,.._:~~~)i~14;t,:~~r~'-"';t;' :-••• ,:,:;~~~:~-~':;,::~Li~.:JJj . - "" IN 'TIrE SEYCHELLES C01. J1l'f OF AFPEAL ••.. fI- ~ Jean Victor !o:lbrin vis Respondent Civil Apneal Ko. 2 of 1985 JUDGMENT The r'es ponderrt sued the appellant i'or divorce, on the grounds 'of deser t i on and adultery. She also pr~,yed. the Court that she 'De grant.ed the right of occupation of tpe matrimonial home. " The appellant resisted the petition. After hearing evidence the learned trial Judge found ,the allegation of adultery not proved but he was satisfied that the .~usband had deserted his wife for 10 years and they have never cohabi ted si.nce then. He accordingly pronounced a decree nisi of divorce ano. also granted the wife the sole right to the occupation of the matrimonial home. The judgment of the learned trial Judge is being challenged on the follovTing grounds: 1". The 'learned trial Judge was' wrong to find desertion arid that the parties have never cohab{ted-. 2. vas put to an end by Desertion (3. i r-esumpt i.on of cohabitation :from August to December 1982 or (b) by the parties returning.to the matrimonial home. 3. T:;.efinding that it would be impossible and intolerable fell' the parties to live in the same house is unsupported b:i evidence. 4. The learned trial Judge was wrong to grant the respondent soLe right to occupation of the mat.rimoni.af horne in the circumstances- of the case. The appellant is challenging the findings of fact by the learned t.ri a. L. Judge , I have closely scrutinized the record of this case and I find no reason to disturb the findings of the learned trial Judge. All the points made before us were also~ put to the Judge and the learned trial Judge in his considered judgment carefully weighed all the facts from both sides and. came to_the right conclusions. Grounds 1 to 3 fail." Ground 4. The learned trial Judge cited the following extract rrom the Figaro case: "It follows from what has been said above tha.t in . Seychelles the Supreme Court has power under section 21(1) of the Status of Married Women Act (Cap. 95) to exclude either spouse from the matrimonial home. The judge has power to make such order as he shall think fit. Such wide discretion must be exercised judicially after all the circumstances of the case have been taken into account -------- Before an order is made excluding a spouse- from ~he matrimonial home it must be shown tha;t it would be impossible or intolerable for both" spouses to liVe in the same house". It is not enough to.show that it would merely be unpleasant or inconvenient for them to ~ive under the same roof"" .." .. -" and said.the f'o. Ll.owi.ng in his judgment: "The facts of this case are that until a "few months ago the petitioner lived all her married life in-the "ma't rimon i.a. L home whereas her husband left it and deserted her 10 years ago. As the house was empty it appears that the husband moved into the house. He has not used the house himself for 10 years and it is surely obvious that the petitioner's need is far greater than the respondent's. From the evidence"before "--.. '3" me conce rrii.ng the mar-ri age and the violence exhi O:!.ted by the re sponderrt; I find tnat, it would be impossible and intolerable for the parties to live together in the same house. I accordingly grant to the petitioner the sole righ'G to the occupation of the Matrimonial Home at Baie St Anne, Praslin." In th~ context of the case and on the facts as found by the Lear-ned ,Judge I do not consider that he could have come to any other'conclusion than the one he did. Ground 4 fails. The appeal is accordingly dismissed with costs. Delivered at Victoria this __ <. ~ __ day of -..::...:....:...-,:...-_ ..._.,_1985. .'..... L ., . H Goburdhun Justice of Appeal . ~''''-''