Springer v Springer
| Jurisdiction | Barbados |
| Judge | Reifer, J. |
| Judgment Date | 16 January 2015 |
| Neutral Citation | BB 2015 HC 1 |
| Date | 16 January 2015 |
| Docket Number | 74 of 2013 |
| Court | High Court (Barbados) |
High Court
Reifer, J.
74 of 2013
Mr. Ernest W. Jackman Attorney-at-Law for the defendant/Wife
Mr. Arthur E. Holder Attorney-at-Law for the respondent/Husband
Family Law - Husband and wife — Divorce — Whether the parties were separated pursuant to section 28 of the Family Law Act, Cap 214 where the applicant and respondent still lived as husband and wife and there was no destruction of consortium vitae — Unilateral and uncommunicated intention to separate and bring the matrimonial relationship to an end — Application for dissolution dismissed.
Barbados is a “No fault” jurisdiction with Irretrievable Breakdown being the sole ground for dissolution of marriage. This ground is only held to have been established “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 12 months immediately preceding the date of the filing of the application for dissolution of marriage”: section 27(2) Family Law Act, Cap. 214.
This was the focus of this application filed in February 2013. The Application
In said Application, the defendant/Wife alleged that the parties separated in 2011 (they married in May 1993) and lived separately and apart since that date. She alleges that it was at this date that she moved out of the matrimonial home after finding out that the respondent/Husband was having affairs. She moved to an apartment owned by the parties.
On October 15th 2013, the respondent/Husband filed a document titled Affidavit in Answer in which he disputed that the parties had separated in 2011, deposing at paragraph 2 thereof, that the parties “continued to cohabit as husband and wife up to when I was served on the 13th day of February 2013 with the application for dissolution of marriage.”
Outside of the bald conflicting statements in the filed documents, the Affidavits filed by the parties did nothing to address the issue of when, or if, there was a separation. The defendant stated that it occurred in 2011 and the respondent stated that it did not.
This Court therefore conducted a trial to settle this fundamental dispute of fact.
The parties hereto were the only witnesses before the Court.
Bearing in mind that the burden of proof lay with the defendant, her evidence was interesting. These extracts resonated with this Court:
“I have lived separate and apart from 20th August 2011. It was a long process. My moving out was a culmination of a lot of things: his affairs and I started to go back to school. I would be studying and he would be keeping noise. I moved out from the matrimonial house at Upper Kew Road and moved to 1st Avenue Jackson, St. Michael…
… I slept in Jackson when I first moved out but I slept in Kew Road on weekends. Initially we still used to sleep together, he would come once per week to Jackson and I would go to Bank Hall on Thursday night to Sunday morning. This continued up to February 2013…”
When it was put to her in cross-examination that she continued to wash and cook for her husband, after stating categorically in her evidence-in-chief that she stopped washing and cooking for him in 2011, she stated:
“You would be correct. In August 2011, I had moved out. My husband would sleep at my house on Sundays and I would feed him. I would say yes I would wash his clothes at that time — clothes we wear to the beach. I would not cook from Thursday to Sunday. I neither cooked nor washed. Mr. Springer would cook all the time. He would cook for me.
Q: Up to February 2013, you and Mr. Springer were still intimate?
A: Yes.”
The defendant gave further evidence which did little in this Court's opinion to clarify these equivocal acts. She told the Court that the parties had a very strained relationship; that she wanted to file for divorce in 2012 when she found two postcards from two different sets of women and children. She told the Court that when she asked the respondent to explain, he gave a rambling story; she told him that she had had enough and was going to file for divorce; he begged for another chance. She stated that she initially gave him another chance, but after finding out that he was “dealing” with one of the same women who was sending him postcards, she changed her mind.
Significantly, it is her evidence that this discovery was made on February 4th 2013.
The respondent's evidence in response was as follows:
“We still co-habited as husband and wife long after that date. My wife moved to Jackson in August 2011. When she moved, I would go to 1st Avenue Jackson about once a week and then I started going twice per week and then I would be there whole week. Up to July 2012, I was sleeping there every night up until I was served with this document in February 2013. Every night would mean from Sunday night to Thursday I would be in Jackson. During that period we lived as husband and wife. In our relationship I do the cooking and maintenance of the family. This continued until January 4th 2013. My wife was still cooking and I was eating from her during that period of time. Her explanation as to why she left in August 2011 is that she liked up there and wunna always making noise down here. I gine up Jackson and do my studying and when you want me you will know where you can find me for whatever. I understood her to mean her intimate relations”.
When asked in cross-examination if the marriage had broken down, he responded as follows:
“The first time I know about this was when I was served. Me and Mrs. Springer was doing things, going to the sea, eating together, working together; I took responsibility for the matrimonial home even the apartment where we lived together. I exercise in one room and my wife in the other until I got my foot hurt in January of this year.”
It was his evidence that even after the service of the divorce application the marriage was not over; he persuaded the defendant to go to counseling as recently as October 2013, she however attended one session and then said ‘that she is not going back and that she wants out’. He confided that he still does not ‘want out’, but is powerless in the face of the defendant's decision.
Section 28 of the Act provides the meaning of separation.
Separation in this context, relates to the disintegration or breakdown of the matrimonial relationship or “consortium vitae”. Section 28 states:
“28 (1) The parties to a marriage may be held to have separated, notwithstanding that cohabitation was brought to an end by the action or conduct of only one of the parties.
(2) The parties to a marriage may be held to have separated and to 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.”
In the Australian case of In the Marriage of Todd (No. 2) (1976) 25 FLR 260 at 262; (1976) FLC 90–008 at 75,079 the Court found that the parties lived separately and apart although they existed under the same roof, as they had not restored the marital relationship. Watson, J. examined three (3) concepts: (a) separation, (b) living separately and apart and (c) resumption of cohabitation. In his oft cited statement, Watson, J. stated as follows:
“ In my view ‘separation’ means more than physical separation — it involves the destruction of the marriage 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...
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