Thomas v Woods

JurisdictionTrinidad & Tobago
CourtHigh Court
JudgeRamkerrysingh, J.
Judgment Date20 November 2012
Neutral CitationTT 2012 HC 375
Docket NumberFH 652 of 2012
Date20 November 2012

High Court

Ramkerrysingh, J.

FH 652 of 2012

Thomas
and
Woods
Appearances:

Mr. St Clair O'Neil for the petitioner.

Ms. Kenesha Lightbourne for the respondent.

Family Law - Divorce — Unreasonable behaviour.

Ramkerrysingh, J.
1

The petition before me was prepared and filed by the petitioner in person. He relied on the fact of unreasonable behaviour to prove the ground of divorce, but the particulars were vague and unhelpful. The respondent filed an Answer in defence, denying behaviour and giving details of the marriage that threatened the petitioner's cause of action.

2

Because the petitioner was unrepresented, at the first Directions Hearing I suggested to him that he should seek legal advice and representation and on the Return Date Ms. Lightbourne appeared for him. I sent the parties out of court and spoke candidly with the attorneys. I intimated a mindfulness to give the petitioner the opportunity to amend his pleading, which Ms. Lightbourne welcomed, as she indicated that she had intended to seek permission to do so. Mr. O'Neil did not object provided he was given the opportunity to file an amended Answer if necessary, but after conferring with the parties the petitioner indicated, against Ms. Lightbourne's advice, that he did not wish to amend the petition and was anxious to proceed.

HISTORY OF THE MARRIAGE AND THE PERSONALITIES
3

Briefly the facts of the case are these: The parties were married in 2007. The petitioner was unhappy with his wife's unwillingness to initiate sexual intercourse. On realizing that she in fact had a problem in this area, the respondent made a concerted effort to change. By 2008 there was an increase in the frequency and enjoyment of sexual pleasure between the parties and the petitioner was happy with the positive change he had seen in the respondent. In 2009 he left Trinidad for England and while there became involved in another relationship.

4

The respondent discovered she was pregnant two months after the petitioner's departure. He rushed back to be with her and stayed throughout the pregnancy. He was also very attentive during this time. The baby was delivered by Caesarean section, but sadly did not survive. After the death of the child there was a noticeable change in the petitioner's attitude towards the respondent. He told her about his extra-marital affair and said that he did not love her. They quarrelled but he remained in the marriage, even praising the respondent for putting his indiscretion aside for the sake of their relationship.

5

The petitioner remained in Trinidad until May 2011 when he went back to England and either entered, or continued his extra-marital relationship — the evidence is not clear. About two months after his 2011 departure, he told the respondent that he had found someone else and she should move on with her life. By the time he returned to Trinidad in November 2011 he had completely worn himself out of the marriage and had already moved on.

6

The two main complaints of the petitioner were: (1) the respondent's “silent mode” and (2) her unwillingness to initiate sexual intercourse. Though, with respect to the latter, he admitted that once he made sexual advances the respondent did not reject him. What he took issue with, was the fact that she would not make the first move. By 2008 the respondent had changed and her efforts were commended by the petitioner who was pleased with the difference in her approach to sexual intercourse. There is no evidence that the problem persisted after that.

7

Intolerable behaviour of a sexual nature can take a variety of forms, ranging from frequency or infrequency, to offensive practices, to outright refusal, making it difficult if not impossible to categorise whether or not a complaint of sexual behaviour is intolerable, to the extent that a petitioner cannot reasonably be expected to live with a respondent. In these circumstances the court's role is inquisitorial and each case must be investigated in light of its own facts.

8

The learning in Sheldon v. Sheldon [1966] P 62 (C.A.) suggests that even refusal of sexual intercourse cannot be considered cruelty, nor I would add, intolerable, unless such refusal is grave and weighty. It is to be noted that in the instant case the issue was not one of refusal of sexual intercourse, but rather, in not taking the lead role, which, comparatively speaking, is less serious than refusal. Is the respondent's unwillingness to initiate sexual intercourse considered so grave and weighty that it can be categorised as unreasonable? It is my judgment that it is not, for reasons amplified below. But even if I am wrong, it is my finding that the problem did not persist throughout the marriage and in fact was eliminated in its first year, to the petitioner's satisfaction and he continued in the marriage.

9

The petitioner made known his displeasure about the respondent's reluctance to initiate sexual intercourse and she accepted that she needed to change in that respect. By 2008 there was a marked improvement, with the parties engaging in sexual intercourse three or four times a week. This continued until the respondent left for England in 2009 and again in 2011 when he left for the second time. Both parties agreed that the petitioner was pleased with the respondent's change in attitude and he complimented her about it.

APPLICATION OF THE LAW
10.1

must first thank both attorneys for their helpful submissions and I especially want to applaud the gallant efforts of Ms. Lightbourne who, although coming late into the matter and perhaps having been taken by surprise by the petitioner's stance to proceed with the trial, nevertheless continued on the day without seeking an adjournment.

11

It is the court's duty in cases of behaviour to examine the facts, to determine whether the behaviour complained of is such that any reasonable person would find it intolerable to live with the respondent. As stated earlier, the particulars of the fact of divorce in this case were very vague and, in my judgment lacked the detail necessary to prove the petitioner's case. Further and more detrimental to his case, even the bald facts particularised by him, turned out to be inconsistent with the evidence led at the trial. It is from the Answer that the full nature of the case is known.

12

The first part of the court's test as stated above is to determine the unreasonableness of the respondent's behaviour. Although the words of section 4(1)(b) “reasonably expected”, suggest that an objective test ought to be applied to determine whether behaviour is considered unreasonable, this is far from a textbook application. It is important to factor in the peculiar characteristics of the persons before the court. According to Rayden:

“the Court (in accordance with its duty to inquire, so far as it reasonably can, into the facts alleged) will have regard to the history...

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