Laforet v Laforet (No. 1)
| Jurisdiction | Barbados |
| Judge | Hanschell, J. |
| Judgment Date | 27 June 1962 |
| Neutral Citation | BB 1962 HC 9 |
| Docket Number | No. 35 of 1962 |
| Court | High Court (Barbados) |
| Date | 27 June 1962 |
High Court
Hanschell, P.J.
No. 35 of 1962
Mr. H. Forde instructed by Messrs. Carrington & Sealy for the applicant.
Mr. W. Hanschell for the respondent.
Family law - Husband and wife — Divorce — Ground — Exceptional hardship suffered by petitioner.
Facts: The applicant wife who was pregnant applied for leave to present a petition for the dissolution of her marriage to her husband before the expiration of three years from the date of marriage. The grounds for the application were exceptional hardship suffered by her and/or exceptional depravity of her husband. The basis for the application was cruelty.
Held: (i) Considering the merits of the application subjectively and without any attempt to resolve the case as presented by the applicant was one which if proved, would amount to exceptional hardship suffered by the applicant; (ii) the interests of the unborn child would not be best served by the refusal of the application and there was no reasonable probability of a reconciliation in the short time remaining before the expiration of the three year period. Accordingly, the court's discretion would be exercised and leave given.
This is an application under section 2 of the Matrimonial Causes (Amendment) Act, 1948 of this Island for leave to present a petition for the dissolution of marriage before three years have passed from the date of the marriage. The application is instituted by summons as prescribed by rule 2 of the Matrimonial Causes Rules, 1957 of England, which, by the authority of Herbert v. Herbert, 1961, a decision of the Supreme Court of Barbados, are made applicable. This application is heard in Chambers. The applicant's grounds for this application are exceptional hardship suffered by her and/or exceptional depravity of the proposed respondent her husband. The summons is supported by an affidavit of the applicant as prescribed by the abovesaid rule and the proposed petition of the applicant is exhibited to the affidavit.
The respondent to this application has filed his affidavit in reply.
The affidavit of the applicant and the proposed petition disclose that the basis of the grounds of this application is cruelty by the respondent.
In the respondent's affidavit in reply the allegations of cruelty are denied and the issue of jurisdiction is specifically raised.
This application first came up for hearing on May 21, 1962. On that day, shortly after counsel for the applicant had begun his submissions, the court invited applicant and respondent to consider the question of reconciliation before going into the merits of the application, and suggested an adjournment in order to give time for both parties to approach reconciliation when they would still be unaffected by any submissions or discussion of the alleged cruelty in court in this matter. It was then submitted on behalf of the respondent that he would not be against reconciliation and that the impending birth of a child might still have a reconciliatory effect. It was also stated then that the respondent was supporting the applicant, intended to continue to support her and to accept full responsibilities for the impending birth.
For the applicant it was submitted that the chances of a reconciliation were very small. On her behalf the adjournment for this purpose was resisted at first. A suitable person, who was acceptable to both parties was named by one of them, to assist in effecting reconciliation. It was understood by both parties that anything which took place in the course for this attempt at reconciliation would be privileged and could not be put in evidence at the hearing of this application. The hearing was at this point adjourned to June 26, 1962.
When the hearing was resumed on June 26, 1962, the court was informed that the person named had seen both parties and reconciliation had not been achieved.
The hearing of the application was continued.
Before dealing with the merits, application was made on behalf of the applicant to strike out from the affidavit in reply certain portions which purported to deal with issues of fact in the proposed petition on the ground that they are not relevant to this application which it is submitted, is based on the affidavits and any cross examination thereon, and that it is not based on the proposed petition. Such portions of the affidavit in reply are parts of paragraphs 2 and 7 and the whole of paragraph 9. The portions of paragraphs 2 and 7 objected to both deal with the question of jurisdiction as set out in the proposed petition. Paragraph 9 is simply a denial by the respondent of alleged income and of the possession of stocks and shares, both income and possession being alleged in the proposed petition.
It is clear that the respondent is entitled to raise the question of jurisdiction in this application. (See Rayden on Divorce, 7th edition, p. 254 paragraph 8).1 rely on Simpson v. Simpson [1954] 2 All E.R. 546 C.A. as sufficient authority that an application such as this is based on the proposed petition, the relevant facts of which, are sworn to in the supporting affidavit of the applicant, and any affidavit in reply.
Consequently, the application to strike out from the affidavit in reply the portions referred to is refused....
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