Greenidge v Greenidge
| Jurisdiction | St Lucia |
| Judge | Bishop, J. |
| Judgment Date | 21 March 1966 |
| Neutral Citation | LC 1966 HC 2 |
| Docket Number | No. 77 of 1963 |
| Court | High Court (Saint Lucia) |
| Date | 21 March 1966 |
Supreme Court
Bishop, J.
No. 77 of 1963
D. A McNamara for the plaintiff
E. H. Giraudy for the defendant
Family law - Divorce — Plaintiff sought a declaration that he be legally separated from bed and board from his wife — Court ordered the separation as it was satisfied that the defendant had committed adultery.
William Carlton Greenidge the plaintiff in this action seeks an order from this Court that he be judicially separated from bed and board from his wife Olive Gloria Greenidge, the defendant in this action, and that she “be declared to forfeit all rights to community property”.
The reasons for the plaintiff's prayer are contained in the allegation made in a declaration filed on his behalf by solicitors on the 3 rd of October 1963.
Paragraphs 3, and 5 of the declaration are the paragraphs wherein the plaintiff purports to set out the grounds for his action.
Paragraph 3 reads thus: – “On or about March 1962, the plaintiff had occasion to remonstrate with the defendant and the defendant in early April, left the matrimonial house taking the two children aforesaid and all furniture and returned to her mother's home at New Village”.
Paragraph 5 reads thus: – “The defendant continued to frequent the company of other men and in or about August 1962, whilst living apart from the plaintiff, the defendant became pregnant for a person unknown to the plaintiff and gave birth to a female child on or about 24 th May 1963, the paternity of which is in dispute. The said child being named Renata Laurette Deborah”.
I wish to analyse ouch of these allegations as set out in the declaration of the plaintiff, and I will consider paragraph 3 first.
Article 160 of the Civil Code of St. Lucia 1957 states: “Either party may demand a separation on the ground that the other party has deserted the plaintiff without cause”.
Therefore this article creates a matrimonial offence of desertion without cause, and unless a plaintiff in his action for separation alleges positively and unequivocally that there was desertion without cause by the defendant then the allegation will be insufficient to afford a ground for a demand of separation. In other words, there is no matrimonial offence committed if a wife leaves the matrimonial home and returned to the maternal home. The offence only exists if such departure is a desertion without cause.
In his declaration the plaintiff alleged that sometime in March 1962 or thereabouts he “had occasion to remonstrate”, with the defendant and then in early April (no year is mentioned) the defendant “left the matrimonial house taking the two children… and all furniture and returned to her mother's home at New Village.”
It is my view that this plaintiff has pleaded opinion in his allegation that he “had occasion to remonstrate”. Whether or not the plaintiff was justified or had occasion to remonstrate because of something said or done by the defendant, or for whatever mason or conduct is a matter of opinion. The allegation should set out the facts on which the plaintiff relies. It should contain a statement of the facts which the plaintiff contend gave rise to remonstrate”. Briefly, what in substance did the defendant say or do? What did plaintiff say or do? In this case the defendant did not ask for particulars, nor were any particulars supplied or ordered. The Court is now in the position where it is not supplied in sufficient detail with the facts. The plaintiff has merely pleaded that in his opinion, there was, around March 1962 an occasion when he felt obliged to protest. Further, as I indicated earlier, the time when the defendant is alleged to have left the matrimonial home is not sufficiently stated so as to give the Court the relevant facts, and taking these two aspects of this paragraph…lt is my view that to plead in this way is not adequate enough.
As far as this allegation in the declaration is concerned it is clear to me that as it stands it does not afford the plaintiff a ground for separation from Bed and Board since there alas no clear allegation that the defendant deserted the plaintiff without cause, and failure to state in the pleadings that the defendant deserted without cause is a fatal omission.
Without attempting now to direct or to insist that pleadings should be devoid, of individuality or should follow a fixed and definite form nevertheless, I offer the suggestion that pleadings in such a case as this should follow as nearly as practicable the form of a petition in a divorce suit in England and to this end reference may be made to any of the textbooks on this subject for a suitable form.
Paragraph 5 of the declaration has been quoted above, and it may be contended that the declaration did not previously contain any allegation that the defendant “frequented” the company of men therefore the plaintiff should not plead that the defendant continued to do so. Again, it may be asked whether frequenting the company of men is a matrimonial offence known to law? Is the plaintiff accusing the defendant of prostitution? Is the plaintiff merely saying that the defendant is very often found in the company of men? I do not interpret the allegation to mean that the plaintiff is accusing the defendant of prostitution; again, it would seem to me that the plaintiff is merely stating an opinion rather than setting out facts in the allegation. It may be the plaintiff's opinion that she “frequented” the company of other men; if he states this he should also state in his declaration all the occasions on which the defendant was known to be in the company of men and the Court would then draw its own conclusions as to whether the defendant did indeed frequent the company of men.
The simple fact of being in the company of men often would not in my view – by itself be sufficient to regard the wife as committing a matrimonial offence. There would need to be other facts as to the circumstances surrounding her act of frequenting the company of men before, it could be regarded in the light of being a likely matrimonial offence or of contributing to form a matrimonial offence.
However, it would seem from the remainder of paragraph 5 that the allegation of the plaintiff is really to the effect that his wife whilst living apart from him by a mutual agreement made in the month of April 1962, gave birth to a female child in the month May 1963, and the paternity of such child is denied by him, or to quote his declaration “the paternity of which is in dispute”.
Again, in the case of such an allegation, I venture to suggest that the pleadings might follow the pattern to be found in a petition for divorce and set out unequivocally that the defendant during such and such a time committed adultery with a person unknown and give such particulars of the adultery as may be known to the plaintiff or as the plaintiff is in a position to prove as required by law.
What defence has been made to the allegations? In a defence filed on the 5 th November 1963 by her solicitors the defendant Olive Gloria Greenidge admitted paragraph 3 of the declaration; in other words, she admitted leaving the matrimonial home. However, she contended that she had a reason for so doing she gave as her reason “the plaintiff's repeated acts of cruelty”. It is not clear from this to whom the acts of cruelty were directed, and it is also interesting to observe that the solicitors for the plaintiff did not seek to obtain any particulars of the alleged acts of cruelty. Certainly the defendant's solicitor never pleaded any facts from which a finding of cruelty could be made. The law of this territory retakes it clear — in my view — that the facts relied on must be pleaded and pleaded in sufficient detail; and in this case the defendant's solicitor ought to have pleaded those acts or those facts which the defendant alleged amounted to cruelty and therefore whether the cruelty was at her or the children or at whom? Were the acts amounting to cruelty or to mental cruelty? Indeed there are no facts pleaded. Again I find it necessary to bring attention to a divorce petition and answer thereto as a guide to accept therein, where cruelty is alleged it is made unequivocally clear that the one party was, since the marriage, treated with cruelty and the specific acts of cruelty alleged are particularised as to act, date and place. Only by so doing can the other party know what to be prepared to answer. Can one party to a marriage of six years standing to be expected to come to Court prepared to answer acts of cruelty not set out? These would seem to me to be allegations made in such general terms or so vague as to be almost impossible to anticipate.
At this stage I should mention that I have only suggested that the form to be followed in pleadings in cases of this nature should be that used in divorce matters because the Civil Code by article 160 specifically states that the expressions “adultery”, “cruelty” and “desertion” shall have the same meanings as are assigned to them by the law of England and because the procedure used in all cases in the Supreme Court of this territory may – in the absence of provision therefor — be that which is used in England or at any rate such as the judge may approve.
The defendant has therefore pleaded – insufficiently – to an allegation, which for reasons explained earlier does not provide a ground for separation from Bed and Board. What therefore is the position...
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