User-generated version by Tyler Forbes

© Copyright 2023, vLex Justis. All Rights Reserved.

Copy for use in the context of the business of the vLex customer only. Otherwise, distribution or reproduction is not permitted

Nurse v Nurse

Jurisdiction: Barbados
Judge: Douglas, C.J.
Judgment
30 May 1984
Date:
Neutral {:value=>"BB 1984 HC 27", :attribution=>"Judgment", :fulltext_available=>true,
Citation: :vid=>792617493, :url=>"/vid/792617493"}
{:value=>"BB 1984 HC 27", :attribution=>"Judgment", :fulltext_available=>true,
Reported In:
:vid=>792617493, :url=>"/vid/792617493"}
Docket
Family Division Suit No. 74 of 1984
Number:
Court: High Court (Barbados)
Date: 30 May 1984

Id. vLex Justis VLEX-792617493

Link: https://justis.vlex.com/vid/nurse-v-nurse-792617493

Text

High Court

Douglas, C.J.

Family Division Suit No. 74 of 1984

Nurse
and
Nurse

Mr. Ronald Toppin for the applicant.

The respondent did not appear and was not represented.

23 Nov 2023 14:32:23 1/4

User-generated version by Tyler Forbes

Family law - Husband and wife — Divorce — The parties were married for two years and were
living in the same house — The husband made an application for a divorce — The court
considered the Family Law Act, section 12(8) to see whether the parties had fulfilled the
requirements of the section — Court found that the section was not satisfied since it
contemplated that parties married for less than two years should see a person who comes within
the definition of marriage counsellor set out in section 3 of the Act — The section was not
satisfied if the parties had discussed the question of reconciliation together in the absence of a
marriage counsellor — Whether the decision would cause hardship to the applicant who was
leaving the island and would have to bring fresh proceedings while he was abroad — Court
found that there were no circumstances peculiar to this case — The applicant's departure was
merely an inconvenience but not a hardship sufficient to constitute a special circumstance —
Application dismissed.

Douglas, C.J.

The parties were married on 12th of June, 1982 when each was aged 20 years. On the 8th of
March, 1984 the husband applied for dissolution of the marriage which, according to the
husband, had broken down irretrievably. He alleges that the parties separated on the 5th of
January, 1983 and have lived separately and apart from that date. The husband sets out the
circumstances of the separation as follows–

“The wife moved out of the master bedroom on the 5th day of January, 1983 and ever
since then has refused to sleep with the applicant. Since a date prior to the said 5th of
January, 1983 the parties have not had sexual intercourse. Further the wife has not
cooked for the husband since she moved out of the master bedroom. There is no
communication between the parties who although they live at the same house lead
totally different and separate lives and do not interact. In addition, since the date of the
separation, the parties considered a reconciliation but the discussion proved totally
futile as the parties were unable to agree on anything.”

The husband states that there is no reasonable likelihood of cohabitation between the parties
being resumed. In his evidence before the court the husband explains the circumstances in
which the marriage took place. Her boyfriend had left her, and his girl-friend had left him. They
were going to class together. They both had plans to be on their own and they were a comfort
and a help to each other. After marriage he found fault with her for the following reasons — she
was “own-wayish”, she was independent, she was “dominant”, and she was “private”. The
husband says she compared him with her old boy-friend and told him she didn't love him. She
showed no interest in his plans and had plans of her own.

The husband strikes me as being immature and rather silly, but as there is, mercifully, no child of
the marriage, a decree would follow as a matter of course, but for the operation of Section 12 (8)
of the Family Law Act, 1981 which provides –

“Where an application for the dissolution of a marriage discloses that the parties have

23 Nov 2023 14:32:23 2/4

User-generated version by Tyler Forbes

been married for less than 2 years preceding the date of the filing of the application,
the court shall not hear the proceedings unless the court is satisfied that

(a) the parties have considered a reconciliation with the assistance of a

marriage counsellor, an approved marriage counselling organisation or some
suitable person or organisation nominated by the Registrar or other appropriate
officer; or

(b) that there are special circumstances requiring the hearing to proceed.”

As to the parties considering a reconciliation with the assistance of a marriage counsellor, the
husband states in his evidence –

“Six months after marriage we had a heated discussion. The pastor of the church was
called. He tried to counsel us. He came until late last year. She said nobody could
change her.”

I am not satisfied that this meets the requirements of section 12(8)(a), because the statutory
provision contemplates either a person who comes within the definition of marriage counsellor
set out in section 3, or a person named by the Registrar, or a probation officer or welfare officer,
or, in the alternative, a marriage counselling organisation approved by the Attorney-General.

As to the existence of special circumstances, Mr. Toppin refers to the applicant's plans to leave
the Island shortly, and the hardship of his having to bring proceedings afresh after the 12th of
June, 1984 while he is abroad. Counsel refers me to the case of Nuell (1976) 1 Fam. L.R. 11,239.
In that case Fogarty, J., in examining the facts in the light of section 14(6)(a) of the Australian Act
(the equivalent of our section 18(8)(a) came to the conclusion that the sub-paragraph was
satisfied because reconciliation had been clearly brought to the attention of the parties and they
had considered it. He continued –

“Were there any doubts about the matter, I would have been prepared to make a
declaration under sub-paragraph (b) that there are ‘special circumstances’. There is
no definition in the Act as to what is meant by ‘special circumstances’, but I, myself,
would be of the view that if the court were satisfied that the marriage had completely
broken down, that neither party was interested in its continuance and both desired a
divorce, particularly where there are no children, those facts would constitute special
circumstances. There would be no social or other worthwhile purpose in continuing
the marriage for another short period of time until after the parties have been married
for two years so that they could then re-apply.”

In the case of Philippe (1977) 4 Fam. L.R. 153 Connor, J. in the Family Court of Western
Australia, declined to follow the obiter dictum of Fogarty, J. in Nuell. The learned judge observed:

“The Act itself does not define ‘special circumstances’. As far as I am aware there are
no reported decisions on the meaning of the words in S.14(6)(b). The same words
were discussed in the Canadian case Baia v. Baia [1970] 3 O.R. 165 in relation to the
23 Nov 2023 14:32:23 3/4
User-generated version by Tyler Forbes
were discussed in the Canadian case Baia v. Baia [1970] 3 O.R. 165 in relation to the
abridgement of time between decree nisi and absolute. Special circumstances in the
Canadian statute were held to mean facts peculiar to the particular case which set it
apart from other cases and this I think is the proper meaning to be given to the same
words in s.14(6)(b)…..”

In another Australian case — that of Malgszko (1979) 5 Fam. L.N. 6.7 — Ellis, J. in the Family
Court of Australia, held that the facts that the marriage had completely broken down, that neither
party was interested in its continuance and both desired a divorce, there being no children of the
marriage do not constitute ‘special circumstances’ within the meaning of s.14(6)(b). To that extent
Ellis, J. was unable to agree with the dicta of Fogarty, J. in Nuell.

Mr. Toppin's submission is that these are decisions of courts of co-ordinate jurisdiction and the
court is free to follow either Nuell or Philippe. I do not think I can adopt such a course. In Minister
of Pensions v. Higham [1948] 2 K.B. 153, Denning. L.J. stated the general rule that where there
were conflicting decisions of courts of co-ordinate jurisdiction, the later decision was to be
preferred, if it was reached after full consideration of the earlier decision. This is, in my view, in
accord with the principle that the law should be reasonably certain, at whatever level it is being
declared. Applying the general rule, I would follow Philippe rather than Nuell.

In the instant case, there are no circumstances peculiar to this case. The husband's projected
departure from the Island may be an inconvenience, but it is not a hardship amounting to a
special circumstance. On the facts the applicant has not satisfied the requirements of Section
12(8) of the Family Law Act, 1981 and the application must be dismissed.

23 Nov 2023 14:32:23 4/4