Dalsou v Dalsou
| Jurisdiction | St Lucia |
| Judge | Wilkinson, J. |
| Judgment Date | 02 May 2012 |
| Neutral Citation | LC 2012 HC 13 |
| Docket Number | SLUHMT 102 of 2011 |
| Court | High Court (Saint Lucia) |
| Date | 02 May 2012 |
High Court
Wilkinson, J.
SLUHMT 102 of 2011
Mr. Ermiri Moise for the petitioner
Ms. Andra Gokool Foster for the respondent
Family Law - Cross-petition — Whether Court could allow cross-petition.
On July 11th 2011, the petitioner filed her petition and on September 1st 2011, the respondent filed his answer and cross-petition. On November 18th 2011, the petitioner, appeared in person and the court observed that she had filed a document titled ‘Response to the respondent's answer and Response to cross-petition’. The document was not in the nature/structure of pleadings so the court recommended that the petitioner seek legal advice to guide her through the process. At December 15th 2011, the petitioner appeared with counsel and on an oral application by counsel for leave to withdraw the document an order granting leave to withdraw it was made. The contents of the remaining documents are of no moment to this ruling.
The court has for some time observed that like this respondent, other respondents frequently file cross-petitions and then the majority of these suits are listed as undefended suits for hearing. Following this at the undefended hearing either the petitioner or the respondent withdraws their petition or cross-petition and the matter proceeds as an undefended divorce.
The court has for some time also inquired as to where is the authority to file a cross-petition when neither the Divorce Act, 1973 (“the Act”) nor the Divorce Rules 1976 (“the Rules”) provide for such a document and the court was often told that the respondent merely wanted to have his/her facts on record.
The court having not heard any submissions before on the issue of whether or not a cross-petition is a valid document in divorce proceedings asked counsel in the present suit to submit on the issue.
The sole issue is whether the respondent or any respondent for that matter is permitted to file a cross-petition being it conveniently set out with his answer or filed as a separate document when there is no provision for a cross-petition in either the Act or the Rules.
Counsel said that divorce and connected matters were governed by the Act and the Rules and where they were silent, then the court was to adopt and be guided by the applicable law, rules and procedures at England.
The Act and Rules she submitted were based on the Matrimonial Causes Act, 1973, the Matrimonial Causes Rules 1973 and 1977 at England and this was to be seen in that the language of both Acts and the Rules were similar. Such similarities included that there was a sole ground for divorce being that the marriage had broken down irretrievably. Further, like England either the husband or wife could petition the court for a divorce using the similar facts prescribed in the Acts, (a noted exception being that at the United Kingdom there was the additional fact of separation of two (2) years with consent of the other party) and the court was required to make a finding that a petitioner had satisfied the evidential burden of proving the irretrievable breakdown of the marriage. A divorce could only be granted on the petition of a petitioner.
Counsel further submitted that the pleadings of a respondent were prescribed by section 5(5) of the Act and this section was pivotal to the contention that the practice and use of language “cross-petition” in conjunction with an answer is in fact accepted by the court as the pleading to be filed by a respondent seeking the relief of a petitioner in divorce proceedings.
As to the content of an answer, she said the Rules were silent.
Counsel cited Rayden (Rayden on Divorce 14th edition Chap. 12 para.20):
“Cross prayers in answer. … It has been held ( Blacker v. Blacker [1960] P 146) by the Court of Appeal that an answer which claimed relief was a petition within the meaning of the rules, …”
Here she submitted that the Court of Appeal was applying the Matrimonial Causes Rules, 1957 that like the English Rules of 1973 and 1977 they had language similar and were identical in most respects to that of the Rules at Saint Lucia.
Counsel further submitted that section 6 of the Matrimonial Causes Act, 1950 had the same wording as section 5(5) of the Act and in Blacker v. Blacker Ibid, Hodson, L.J. said:
“For this purpose an original answer may be regarded as a cross-petition (see Faulkner v. Faulkner); for by s.6 of the Matrimonial Causes Act, 1950, the court may give to the respondent the same relief to which he or she would have been entitled if he or she had presented a petition seeking such relief.”
Reference was also made to Faulkner v. Faulkner [1941] 2 All ER 748 which counsel said established the authority for a court deeming and accepting that an answer that sought relief is a petition and that where the respondent in the answer sets up a substantive case the answer is really in the nature of a petition so far as the respondent's case is concerned.
A respondent at Saint Lucia she said must meet his legal obligation and to do this he must establish his substantive case and the right to the relief that he claimed to be entitled to pursuant to the Act and the Rules. The language of ‘cross-petition’ in conjunction with an answer to refer to the facts relied on and relief sought by the respondent in divorce proceedings was simply a mode or style of presenting the pleadings. The respondent must plead facts as required by section 4 of the Act in proof of the irretrievable breakdown and he could not seek his relief as a petitioner by simple denials in his answer. The authorities supported the view that whether referred to as a ‘cross charge”, “cross prayer”, or “cross petition” an answer to a divorce petition that seeks the same relief as a petition is a cross-petition.
She said that it had been accepted and remained the precedent of the High Court at Saint Lucia that a respondent seeking relief as a petitioner may do so by an answer (defending) conjunctively with a cross petition (seeking relief) and a respondent who filed pleadings in this form was properly before the court. This interpretation of the law (a) established the position of each party from their pleadings, (b) avoided administrative delays and waste of judicial time by allowing from the outset the consolidation of cross action since the Act and the Rules do not prohibit the filing of a separate petition by a respondent.
In conclusion, counsel said that all the authorities presented show that an answer which seeks relief must satisfy the requirements of a petition and therefore notwithstanding the nomenclature, a cross-petition included in the answer should be accepted by the court as an answer that seeks a cross prayer which must receive the court's due consideration. The use of the language ‘cross-petition’ was not procedurally irregular and in any event should not be deemed fatal to preclude the respondent from the exercise of his legal right to seek relief under the Act and Rules.
Counsel provided the court with the copy of the precedent for an answer from Rayden Ibid and therein was set out a cross-charge. She said it was a matter of pleading style how the respondent sets up his case. The precedent provided:
“16. Cross-charge: irretrievable breakdown of marriage. The said marriage has irretrievably broken down by reason of the matters hereinafter alleged.
17. Cross-charge of adultery and intolerability. The petitioner has since celebration of the said marriage committed adultery with ….
18. Particulars of alleged adultery. From in or about June 19…the petitioner frequently committed adultery with ….
Prayer. The respondent therefore prays:
(1) That the prayer of the petition may be rejected.
(2) That the said marriage may be dissolved.
(3) ….”
(4) That [the petitioner [and] the party cited] may be ordered to pay the costs of this suit.”
Counsel for the petitioner said that he did not oppose the submissions of counsel for the respondent as he believed that in a sense it was really what...
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