EASTERN CARIBBEAN SUPREME COURT
IN THE HIGH COURT OF JUSTICE
COMMONWEALTH OF DOMINICA
NATASHA LISA JERVIER Petitioner
JERRY BERNARD MAXWELL Respondent
Before: The Hon. Justice Brian Cottle
Mrs. Singoalla Blomqvist Williams for the Petitioner
Mrs. Dawn Yearwood-Stewart for Respondent
[2013: July 10th ]
[ July 11th ]
 Cottle J: This is an Application for Leave to present a Petition for divorce before the expiry of 3
years following a marriage. In the Commonwealth of Dominica parties to a marriage are not
permitted to Petition for divorce within 3 years of the marriage unless a court determines that the
party presenting the petition has suffered exceptional hardship or that the other party has displayed
 In the present case the Applicant seeks the leave of the court on the basis that she has suffered
exceptional hardship and continues to do so. The Respondent denies that the circumstances put
forward by the proposed Petitioner amounts to exceptional hardship so as to justify the grant of
 The Applicant’s Affidavit in Support revealed complaints by the Applicant that the Respondent was
denying the Applicant her conjugal rights to her great distress. She swore that the husband only
wanted to be intimate once each month. Even at that rate the husband would complain that the
wife was too sexually demanding. The marriage lasted 10 months before the wife left the
matrimonial home. She says that intercourse occurred only a few times during that period and
when it did, the experience was brief and frustrating for her. The tension this caused led to
violence in the union. She went so far as to tearing the husband’s trousers on one occasion when
he tried to get dressed and leave the marital bed before satisfying her.
 The wife says that she is now 28 years old. She wishes to start a family. She wants to get out of a
“sexless, loveless, violent, relationship” so she can try to find another suitable partner. Because of
her religious views she does not wish to embark on other relationships before her marriage is
dissolved. She also says that she is the principal provider of the finances of the family. There is
no hope for reconciliation according to the wife.
 The husband for his part accepts that there have been difficulties on the domestic front. He says
the wife abused him verbally and thus adversely affected his sexual performance to the extent that
he resorted to an “energy pill for men” and alcohol in an effort to meet the ‘abusive demands’ of the
wife, but these only made him ill.
 He says that the hardships and ********* experienced by the wife do not go beyond the pale of
those usual in a marriage. He prays that the wife’s application be rejected as he fully intends to
honour his marriage vows to love his wife until death.
 Counsel for the parties referred the court to a number of authorities including the English cases of
Brewer v Brewer  1 All ER 539 a decision of the UK Court of Appeal and Fay v Fay  2
All ER 922 from the House of Lords. These cases were also referred to in a number of authorities
from the High Court of Botswana to which counsel for the husband pointed the Court.
 In Kgosiemang v Kgosiemang  (2) B.L.R, Kirby J refused to grant leave to a husband who
complained that the wife had accused him of being unable to provide for her. She publicly accused
him of infidelity and sexual inadequacy. She threatened to assault him and actually did assault him
on two occasions. She was overly possessive and paranoid and had deserted the matrimonial
home taking with her jointly owned property and attempts at reconciliation had failed.
 The legal position as I discern from the authorities is that at this stage the court is not called upon
to try the issues raised in the affidavit. Rather, the court should look at the wife’s affidavit in this
case and decide if the facts alleged if proved, could amount to exceptional hardship on the part of
 Mwaikasu J. in Maswabi v Maswabi 1999 2 B.L.R put it well. The hardship suffered by the wife
must be out of the ordinary, judged by the prevailing standards of acceptable behavior between
spouses, in order to permit the court to grant leave. The wife in this case has suffered hardship.
She continues to do so. If her application is refused she must wait in the shambles of her marriage
for the expiry of the prescribed period before she can petition for the divorce. During this time she
is denied the opportunity of embarking on a new potentially fulfilling relationship. And in the
background she hears the ominous ticking of her biological clock as she approaches age thirty.
 The House of Lords in Fay’s case says that it is right to consider the hardship suffered by a young
wife in having to wait for the elapse of three years from the date of marriage before petitioning for
divorce. Having carefully considered the facts of this matter I am unable to say that the suffering
being experienced buy the wife is of so exceptional a character as to justify granting her leave to
petition for divorce at this time. I note that the wife endured 10 months before leaving the
matrimonial home. Since then a further year has passed. In a little over one year from now she will
be able to present a petition for divorce if she still so desires. The application for leave is refused.
High Court Judge
EASTERN CARIBBEAN SUPREME COURT