MARCONI v.

MARCONI

Citation # BB 1986 HC 42
Country Barbados
Court High Court. (Family Division)
Judge Douglas, C.J.
Subject Family law
Date June 24, 1986
Suit No. No. 12 of 1986
Subsubject Husband and wife - Divorce - Grounds - Whether the applicant wife had grounds for a
divorce under the Family Law Act, 1981 S. 27(2) - Whether parties "separated" for one
year as required by the Act - During the period the parties engaged in sexual intercourse,
took a vacation trip together, the wife helped husband in restaurant and they entertained
friends together - Court found no separation within the meaning of the statute - Separation
only began when wife moved out of the matrimonial home.
Full Text Mr. Lawson Bayley for the wife.
Miss Sheridan Reece for the husband.

DOUGLAS, J.: The parties were married in Barbados on the 13th of June, 1981. The
husband is a resident of Barbados and the wife is a Barbadian by descent. There are no
children of the marriage.

In her evidence the wife says that 18 months ago she told the husband she no longer loved
him and wanted a divorce. In May, 1985 they went on a visit to New York and Canada in
an effort to patch up the marriage. The trip was not a success but on return the parties
continued to share the same bed and intercourse took place, according to the wife, only
when the husband insisted. She permitted intercourse to avoid a row. During 1985 the wife
helped out in the husband's restaurant up to Christmas eve, and, during 1985, when a
friend of the wife visited from Scotland, the parties went out together six or seven times to
entertain the visitor. In August 1985 (end of page 1) the parties moved out of the house,
which they shared with the husband's mother and sister and took an apartment.

The witness, Miss King, supports the wife's evidence by stating that for over a year the
marriage was going badly.

The wife left the matrimonial home on the 6th of January, 1986.

The husband states that the first intimation he had of the wife's desire for a separation was
just before the trip to New York. He told her that separation would not solve their problems,
that what they needed was more time together. After moving into the apartment the
husband told the wife that he was willing to change his ways, to be more calm, and to talk
things out before accusing her of anything.

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He admits that early in the marriage he forbade his wife visiting her mother. He also admits
striking his wife on three occasions. He admits that he is jealous of his wife and accused
her of being unfaithful without any justification.

The husband's sister, Luanne, gives evidence and states that the parties had
disagreements. She would want to go out and he would not want to go.

It emerges from the evidence that the husband is quite immature. His reaction to his wife's
telling him she wanted a divorce was to cry. His accusations of infidelity against the wife
were childish and unseemly. He would derive amusement by driving off just when his wife
went to open the door of the car. He admits driving his car with his wife sitting on the
bonnet in October 1985 and says he turned the steering wheel too hard and she fell off.
The wife states that the husband thought her falling was enormously funny and made a
joke of it. In my opinion this incident merely reflects the husband's silly and immature
disposition. (end of page 2)

The only point in this case is whether the wife has fulfilled the requirements of section 27(2)
of, the Family Law Act, 1981 which so far as is relevant to these proceedings' reads:-

" ... . on an application for a decree of dissolution of marriage, the ground [that the
marriage had broken down irretrievably] shall be held to have been established, and the
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 12 months
immediately preceding the date of the filing of the application for dissolution of marriage.'

Section 28 (2) of the Act provides:-

"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."

Miss Reece, for the husband cites In the Marriage of Pavey [1976] 1 Fam. L.R. 358 in
which the Family Court of Australia considered section 48 (2) of the Australian Family Law
Act, 1975 - 1976, which is identical with section 27 (2) of the Family Law Act, 1981. The
Court pointed that the only ground upon which a marriage can be dissolved is that the
marriage has broken down irretrievably and stated:-

"Section 48 (2) establishes that the only way this can be proved in Court is by evidence
which shows 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. However, this method of proving the ground should not obscure the fact
that the essential issue is whether the particular marriage between the parties has broken
down irretrievably."

Counsel also cites In the Marriage of Lane, 10 ALR 204 in which Murray J, stated at page
210:-

"The authorities say over and over again that where the parties are living together under
the same roof, great caution must be exercised in determining whether the consortium
vitae has in fact been destroyed. It usually involves considering attitudes of mind, and the

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difficulty of judicially determining that attitude in any particular case (end of page 3) may be
great ….. My own belief is that when both parties are residing together, the Court should
err on the side of caution on the question of the destruction of the consortium vitae, as
otherwise, as I have already said, it could lead to abuse and to injustice."

Mr. Lawson Bayley, for the wife, submits that in considering whether or not there has been
a separation within the meaning of the Family Law Act, the Court must examine the
intention of each of the parties. He cites In the Marriage of Spanos (1980) FLC 90 - 871 in
which the Family Court of Australia held that the occurrence or absence of intercourse
between married persons is a significant aspect but is not decisive of the issue and that it
must be weighed in the balance against the other concomitants which go to make up the
marriage in question.

In the Marriage of Todd (No. 2) 9 ALR 401 is helpful in determining whether in the instant
case there has been compliance with the requirements of section 27 (2). In that case
Watson J. observed:-

"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 relationships."

On the facts before me I find that the purpose of the vacation trip to New York and Canada
in April 1985 was to resolve the parties' difficulties, that the moving into their own
apartment in August 1985 was in furtherance of the same purpose, that the wife helped out
in the husband's restaurant business up to Christmas eve, 1985, that sexual intercourse
took place up to December 1985 and that the parties entertained the wife's friend from
Scotland by taking the visitor out as their guest. On these findings (end of page 4) I have
come to the conclusion that there was no separation within the meaning of section 27 (2) of
the Act until the wife moved out of the matrimonial home on the 6th of January 1986. In so
finding I do not accept that the wife remained in the matrimonial home up to that time
because she was terrified of the husband. She does not appear to me to be the sort of
person who would be easily cowed. In the result, the application must be dismissed
because it has not been shown that the parties have separated and have lived separately
and apart for a continuous period of not less than 12 months immediately preceding the
filing of this application.