R v R
Jurisdiction | Turks and Caicos Islands |
Judge | Mr. Justice Anthony S. Gruchot |
Judgment Date | 06 February 2024 |
Docket Number | ACTION NO. D 47/23 |
Court | Supreme Court (Turks and Caicos) |
In the matter of an application to issue a petition within the specified period Matrimonial Causes Ordinance (Cap. 11.04) Section 7(2) (Divorce: Exceptional Hardship)
The Hon. Mr. Justice Anthony S. Gruchot
ACTION NO. D 47/23
IN THE SUPREME COURT
Mr George Missick of Geordins for the Proposed Petitioner
No appearance by the Proposed Respondent.
The Matrimonial Causes Ordinance (Cap. 11.04) (‘the MCO’) came into force on 28 th December 2012, repealing the much out-of-date Jamaican Divorce Law of 1879.
Section 7 of the MCO provides:
“Restriction on petitions for divorce within three years of marriage
7. (1) Subject to subsection (2), no petition for divorce shall be presented to the court before the expiration of the period of three years from the date of the marriage (hereinafter in this section referred to as “the specified period”).
(2) A judge of the court may, on an application, allow the presentation of a petition for divorce within the specified period on the ground that the case is one of exceptional hardship suffered by the petitioner or of exceptional depravity on the part of the respondent. But in determining the application, the judge shall have regard to the interests of any child of the family and to the question whether there is reasonable probability of a reconciliation between the parties during the specified period.”
The Matrimonial Causes Ordinance is broadly based on the Matrimonial Causes Act 1973 (‘the MCA’) in England and Wales. Section 3 of the MCA is almost identical in its wording to section 7 of the MCO.
A brief history of ‘the specified period’ is given in C. v C. (Divorce – Exceptional Hardship) 1. Ormrod LJ, giving the judgment of the Court stated:
“The legislative history of section 1 of the Act of 1937 is interesting and illuminating and we are indebted to Mr. Wilson for his research on this aspect of the case. From 1857 to 1937 there was no statutory restriction in point of time on the presentation of petitions for divorce, though the ground was, of course, confined to adultery, except in the case of a wife who could rely on rape, sodomy, etc. When the Marriage Bill, as it was originally called, was presented to Parliament in 1937, it provided for a considerable extension of the grounds for divorce and for nullity, but imposed an absolute ban on the presentation of petitions for a period of five years from the date of marriage. There was no “escape clause” of any kind. In this form, the Bill passed the
House of Commons and it seems probable that this clause was an important factor in securing its passage. But when the Bill reached the House of Lords clause 1 ran into very heavy opposition. Lord Atkin described it as a “terrible clause,” and was strongly supported by the legal peers, most of whom objected to any kind of time limit. Eventually the period of five years was amended to three years and Lord Maugham successfully moved a further amendment to introduce a proviso in the same terms as those which now appear in the first part of section 3 (2) of the Act of 1973. When the Bill returned to the Commons Mr. A. P. Herbert moved a further amendment which is now the second part of section 3 (2).”
The ‘specified period’ was further shortened to 1 year by the Matrimonial and Family Proceedings Act 1984 (England and Wales) which has been retained post the April 2022 introduction of no-fault divorces.
The position in the Turks and Caicos Islands remains as set out in paragraph 1, i.e. a petition for divorce may not be presented to the Court within a period of 3 years from the date of marriage has passed unless allowed by the Court on application showing that the proposed petitioner would suffer ‘exceptional hardship’ or the proposed respondent had demonstrated ‘exceptional depravity’.
Bucknill L.J. in Fisher v Fisher 2, cited with approval in C. v C. 3 opined that the provision was “ enacted not only to deter people from rushing into ill-advised marriages, but also to prevent them from rushing out of marriage so soon as they discovered that their marriage was not what they expected.”
The issues that arise is what is considered to be ‘exceptional hardship’ and ‘exceptional depravity’?
As a result of the ‘Specified Period’ of 1 year in England and Wales there have been few reported cases of applications being made to present a petition within that period.
In Fay v Fay 4 Ormrod LJ cited a passage from Hillier v Hillier and Latham 5:
“Section 3 of the Act of 1973, and its predecessors, have troubled judges who have to apply their provisions ever since these were first introduced by section 1 of the Matrimonial Causes Act 1937. The principal difficulty lies in knowing what standards to use in assessing exceptional hardship and what is meant by the phrase ‘exceptional depravity’ Both involve value judgments of an unusually subjective character, so much so that in the earlier cases in this court these appeals were treated as appeals from the exercise of a purely discretionary jurisdiction: Winter v. Winter [1944] P. 72 and Fisher v. Fisher [1948] P. 263. Later, in Brewer v. Brewer [1964] 1 W.L.R. 403, it was held that exceptional hardship or exceptional depravity involved provisional findings of fact.”
Ormrod LJ goes on:
“It is equally clear that the proviso was intended to provide for cases where the three year bar would operate unduly harshly and cause injustice. It seems therefore unlikely that Parliament intended to create two separate ways of avoiding the bar, although the proviso is expressed unequivocally in a disjunctive form. It is difficult to imagine a case where exceptional depravity does not cause exceptional hardship but it is possible that the draftsman was thinking primarily of hardship arising from the enforced delay in starting divorce proceedings.” (My emphasis)
He concludes “… it is now accepted that in dealing with these applications the judge may properly take into account hardship arising from the conduct of the other spouse, present hardship, and hardship arising from having to wait until the specified period has elapsed. In these circumstances it seems to be unnecessary in the great majority of these cases to rely on exceptional depravity with all its unpleasant overtones and difficulties.”
There is also the difficulty that perceptions and attitudes as to the standards of
“Hardship is a concept with which judges are familiar in various contexts though it is often difficult to decide whether it can properly be called exceptional. A considerable degree of hardship is inevitable when a marriage breaks down in the first three years.
Exceptional depravity, on the other hand, is much more difficult. The word “depravity” has fallen out of general use — it is not included in Fowler's Modern English Usage — so that it now conveys only a vague idea of very unpleasant conduct. In 1937 it may have carried to contemporary minds a much more specific meaning, but norms of behaviour, particularly in the sexual sense, have changed greatly in the last 40 years. It is unlikely that the meaning of “depravity” and “exceptional depravity” suggested by Denning L.J. in Bowman v. Bowman [1949] P. 353 would find much support today. In contrast, the change in the basis of divorce from the matrimonial offence to irretrievable breakdown with the expectation of relatively easy divorce may have increased the hardship involved in waiting for the specified period to elapse.”
In Fay v Fay 7 O'Connor L.J. (when the case was in the Court of Appeal) was of the view that “ … it must be clear, if leave under the section is to be given, “that there is something out of the ordinary in what has happened.”
Lord Scarman, giving the judgment of the House of Lords, set the test for finding ‘exceptional hardship’ as:
“… the section requires...
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