Irvin Moses v Lynne Moses

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EASTERN CARIBBEAN SUPREME COURT
TERRITORY OF THE VIRGIN ISLANDS
BVIHMT 2011/0030
BETWEEN:
IRVIN MOSES
Petitioner
V
LYNNE ELIZABETH MOSES
Respondent
Appearances:
Mr. Patrick Thompson of McW Todman & Co. for Petitioner
Ms. Tamara Cameron of Farara Kerins for Respondent

2012: September 26th
2012: October 15th

JUDGMENT
[1] Ellis J: By Petition filed on 20th May 2011, the Petitioner petitioned this Court for a decree absolute
dissolving his marriage to the Respondent on ground that the marriage has broken down
irretrievably because the Respondent has behaved in such a way that he cannot reasonably be
expected to live with her.
[2] The particulars pleaded in the Petition are set out follows:
i. “The Respondent has been mentally and verbally abusive to the Petitioner
throughout the course of the marriage.
ii. The Respondent has no interest in participating in sexual activity with the
Petitioner.
iii. The Respondent has a negative impact on the children of the marriage due
to the Respondent’s ill-tempered nature and tendency to destroy items in the
course of our arguments.
iv. Both parties have frequent arguments and disagreements and the
Respondent is argumentative and unreasonable.
v. The total effect of the Respondent’s behaviour during the marriage is the
Petitioner cannot be reasonably expected to live with the Respondent.”
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[3] In her Amended Answer filed on 24th August 2011, the Respondent denies the Petitioner’s
allegations including the particulars of unreasonable behaviour pleaded. She states rather that;
“The Respondent would prefer that the parties make attempts to continue the marriage
but does not oppose the grant of divorce as it is clear that the Petitioner no longer
wants to be married to her. In any event the Respondent does not agree to a divorce
on the basis of her behaviour.”
[4] When the matter came up for directions before Olivetti J on 5th December 2011, the Parties were
ordered to attend counselling. The Petitioner attended 2 out of the 3 prescribed counselling
sessions. The Parties did not reconcile.
[5] On the next occasion when the matter came up for hearing the Respondent indicated that she
believed that the marriage can be salvaged and that she would oppose the Petition. The matter
was set down for trial on 26th September 2012.
THE LAW
[6] It is clear that under the Matrimonial Proceedings and Property Act, a Court cannot hold the
marriage to have broken down irretrievably unless it is satisfied on a balance of probabilities that
the Respondent has behaved in such a way that the Petitioner cannot reasonably be expected to
live with the Respondent.
[7] The appropriate test to determine whether the Petitioner has established this fact is as adumbrated
in the case of Livingstone-Stallard v Livingstone-Stallard [1974] 3 W.L.R. 302 which has since
been followed and applied in O’Neill v O’Neill [1975] 1 W.L.R. 1118, Thurlow v Thurlow [1976] 3
W.L.R. 161 and Bergin v Bergin [1983] 1 W.L.R. 279.
[8] The Court notes that the Court in Livingstone-Stallard v Livingstone-Stallard expressly did not
follow the dicta in Pheasant v Pheasant [1972] 2 W.L.R. 353 which was cited and relied on by
Counsel for the Respondent in her submissions. Indeed, Pheasant v Pheasant has not been
recently followed or applied.
[9] In Livingstone-Stallard v Livingstone-Stallard, the petitioner filed for divorce relying on the
ground that the marriage had irretrievably broken down within section 1 (2) (b) of the English
Matrimonial Causes Act 1973. The Court found as a fact that although there had been major
incidents, the Petitioner had been subjected to a constant atmosphere of criticism, disapproval and
boorish behaviour by the Respondent. The Court held that the Petitioner was entitled to a decree
nisi.
[10] In considering the appropriate direction, Dunn J stated the test as follows:
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“Would any right-thinking person come to the conclusion that this husband has
behaved in such a way that this wife cannot reasonably be expected to live with
him taking into account the whole of the circumstances and the characters and the
personalities of the parties.”
[11] The Court accepts that this correctly states the test to be applied. The words “reasonably be
expected” prima facie suggest an objective test. Nevertheless, in considering what is reasonable,
the Court will have regard to the history of the marriage and to the individual spouses before it. The
Court must therefore consider this petitioner and this respondent in assessing what is reasonable.
Having regard to all the circumstances of this case it must consider whether this particular
Petitioner can or cannot be expected to live with this particular Respondent.
[12] The English Court of Appeal in O’Neill v O’Neill affirmed this approach and also stressed that no
other extraneous concepts should be imported into the test, such as that the behaviour should be
‘grave and weighty’. The appropriate approach, therefore, is primarily concerned with assessing
any conduct which is not utterly trivial and in looking at that conduct objectively, in the light of its
effects on this Petitioner.
[13] The Court accepts that it is unrealistic to take each individual act in isolation; rather the whole
context involved and their knowledge of each other, cause and effect must be examined bearing in
mind the personalities of the parties.
THE PARTIES’ EVIDENCE
[14] The Petitioner’s evidence is that his marriage has deteriorated over time. In his witness statement
he stated that as the marriage has progressed he noted that whenever he argued with the
Respondent she would seek to belittle him. He attributes this to the fact she is a qualified
accountant and therefore earns significantly more than he does. He indicated that the Respondent
constantly reminded him of this fact and that she insisted on maintaining separate bank accounts.
In addition she was quick to remind him of what property belonged to her. He stated that this
demeaning and belittling attitude continued throughout the marriage.
[15] Under cross examination, the Petitioner stated that because of the disparity in their earning
capacities, his wife pays for practically everything in the household. He stated that when he makes
any suggestion for purchases, she would respond dismissively indicating that he would have to pay
for it himself. Ultimately, all major financial decisions were taken by the Respondent because she
controlled the purse strings. He stated that as a result, he was made to feel like a “nobody” in the
front of his children. He admitted that many of their arguments arose out of what he terms the
“money issue”.
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[16] Although the Respondent denies that she was at any time mentally and verbally abusive to the
Petitioner, her evidence on this matter did not directly contradict the specific evidence of the
Petitioner. Rather it was during the cross examination of the Petitioner that the Respondent’s
counsel sought to suggest that it was the Petitioner’s difficulty in keeping within the agreed budget
which was the source of contention between the Parties.
[17] The Petitioner also gave evidence that earlier in the marriage he has suggested that they attend
marital counselling. He testified that his suggestion was abruptly rebuffed by the Respondent who
refused to attend the sessions suggesting that it was Petitioner (and not her) who had the problem.
This evidence was also not contradicted by the Respondent in her evidence.
[18] The Petitioner also claims that following the birth of their first child, the Respondent began to
display less and less interest in their physical relationship. He claims that this situation worsened
after the birth of their second child. In his witness statement he indicates that they would go for
long periods from 1 month to 6 weeks without physical relations and without any plausible
explanation or excuse from the Respondent.
[19] Under cross examination the Petitioner freely admitted that this has been a constant complaint
throughout his marriage. Although he conceded that there were times when his wife would initiate
intimate relations he stated that these were seldom. He testified that he considered it intolerable to
have to make an appointment when he wanted to be intimate with his wife. The Petitioner
concedes that he has regularly brought up his dissatisfaction with their physical relationship and
that it has often led to arguments.
[20] The Respondent denies that she has no interest in a physical relationship with the Petitioner. In
support of this she stated that in or about July/August 2010 while on a family trip she had
consensual relations with the Petitioner on more than one occasion with at least two incidents
being initiated by her. She describes their sex life prior to the filing of the Petition as active. She
further indicated that since the filing of the Petition, they have had sexual encounters once, on 23rd
October 2011 and again 9th March 2012.
[21] Under cross examination, the Respondent has testified that on several occasions she has yielded
to the sexual demands of the Petitioner when she did not want to. She indicated that at times she
felt sexually degraded and ill-treated by the Petitioner. It also clearly concerns her that the
Petitioner constantly criticised her for what she termed “her inadequacies” in the presence of the
children.
[22] Both the Petitioner and the Respondent admit that these differences led to many arguments
between them. The Respondent however testified that she is a peaceful and tolerant person and
that these arguments were usually instigated by the Petitioner. During cross examination, the
Respondent admitted that there were times that she became so upset that she would throw and
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destroy household items. Her evidence is that the first of these incidents took place in 2009 and
that her reaction was provoked by the Petitioner who would deliberately say hurtful things to her.
[23] The Respondent also freely admitted that following one such disagreement, she threw out the
Petitioner’s clothing from the matrimonial home. When questioned by the Petitioner’s attorney, the
Respondent conceded that when she did this she fully expected that he would leave the home.
[24] The Petitioner stated that he did in fact leave the home within 2 – 3 months of presenting the
Petition and has never recommenced residence. He indicated that since then, he has resided with
his mother and his brother and also with a woman with whom he admits to having an intimate
relationship.
ANALYSIS
[25] The Respondent stated in her witness statement that the real reason that the Petitioner wants a
divorce is to pursue an adulterous relationship. The Petitioner has admitted that he is currently
involved in an extra marital relationship; however he indicates that this is not the reason why he
wants a divorce. He asserts that their relationship has worsened over time and that he is tired of
the years of arguments, the constant accusations, criticisms and denigration.
[26] In direct contrast, the Respondent indicated that there has been no significant deterioration in the
relationship over the course of the marriage. In her words, the marriage was “constantly on the
same page”. She described the difficulties experienced in the marriage as being part of the normal
vicissitudes of married life and not sufficient to warrant the dissolution of the marriage.
[27] The Court finds it impossible to accept this contention. The Court does not condone the Petitioner’s
pursuit of an extra-marital affair and there is no doubt that in so doing he is partly to blame for the
breakdown of the marriage. However, the Respondent has not filed a cross prayer on the basis of
the Petitioner’s behaviour and on the authority of Birch v Birch [1977] 7 Fam. Law 172 the Court
cannot refuse the Petition on the basis of the Petitioner’s behaviour alone.
[28] In any event having reviewed the unchallenged evidence in this case and the admissions made by
the Respondent, the Court finds that Petitioner has behaved in such a way that the husband
cannot reasonably be expected to continue to live with her. The Parties’ emotional and physical
relationship has deteriorated and that the Parties marriage has irretrievably broken down.
[29] Both parties confirmed that there have been several arguments about a number of issues
pertaining to the marriage. Some of these arguments appear to have taken place in the presence
of the children of the marriage. The Respondent has admitted to somewhat intense altercations
with the Petitioner. Although the Petition did not disclose this, the Court accepts the Petitioner’s
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oral evidence that on occasion, the Parties disagreements have turned physical albeit with minor
“pushing and tugging”.
[30] The Respondent admits to throwing and destroying items during arguments. She also admits that
she threw the Petitioner’s belongings out of the matrimonial home and that when she did so she
expected him to leave.
[31] The Petitioner’s evidence that he felt humiliated and belittled by the Respondent was not traversed
during the trial. The Petitioner indicated that the Respondent’s cumulative behaviour has impacted
him negatively. He gave evidence that he has been constantly criticised and moreover that the
Respondent has indicated that she is sick and tired of him and has on occasion asked him to
leave. The Petitioner has reacted to this by leaving the matrimonial home.
[32] There is no doubt from the evidence of both Parties that there has been significant discordancy in
their physical relationship and while this alone would not have been sufficient to ground this petition
it is apparent that it has not assisted. Despite the fact that they have had at least two sexual
encounters since the filing of the Petition, all attempts at reconciliation have proven fruitless, no
doubt because the Petitioner finds it intolerable to continue with the marriage. The Parties have
lived apart for over 1 year and they acknowledge that recently their only real communication
appears to be in connection with their children.
[33] Applying the test to the facts of this case, the Court finds that a decree nisi of divorce should be
granted to the Petitioner.
[34] It is therefore ordered as follows:
i. The said marriage be dissolved unless sufficient cause be shown to the Court
within 2 months from the making of this decree why such decree should not be
made absolute.
ii. Ancillary matters are adjourned to Chambers to a date to be fixed by the Court
Administrator on application by either party.
iii. No order as to costs.
…………………………………………
Vicki Ann Ellis
* High Court Judge