Wife loses action to set aside ‘decree nisi’

IN 1968, husband Alexander Daniels by means of a trick on his wife obtained a ‘decree nisi’ in an undefended divorce suit.

By this trick, the wife Barbara Daniels did not defend or attend the divorce proceedings and continued cohabitation until October 18, when she learnt that the court had granted her husband a ‘decree nisi’ for the dissolution of their marriage.

Accordingly, she instituted a summons to set aside the ‘decree nisi.’

But High Court judge Justice Victor Crane who heard the application dismissed the action on the ground that the applicant had taken the wrong course and ought to have taken her information to the attorney general for action.

More particularly, the wife stated that a few days before June 12, 1967, the date when the citation and petition were served, he had persuaded her to resume cohabitation; after the petition had been served, he had instructed her to inform her lawyer that they had resolved their differences. She did so and about July 9, 1967, the conjugal state was resumed and sexual relations recommenced. It was not until October 18 that she learnt that the ‘decree nisi’ had been pronounced, and she accordingly took out a summons to set it aside.

Justice Crane held (i), there is no distinction between the application to set aside a decree nisi and one calling upon a petitioner to show cause why the decree should not be made absolute.

(ii) Under section 12 (1) of the Matrimonial Causes Ordinance, Chapter 166, the respondent was not a person entitled to apply to show cause, and, therefore, she could not apply to have the decree set aside;
(iii) Her proper course was to give the information at her disposal to the attorney general, as the Queen’s Proctor, for him to take such action as he considered appropriate.

The summons to set aside the ‘decree nisi’ was dismissed.

Senior Counsel Mr Rex H Mc Kay appeared for the appellant, while Mr Bernard De Santos, S.C., represented the respondent.

Delivering his judgment, Justice Crane said that on October 2, 1967, the husband obtained a ‘decree nisi’ of dissolution against the wife in an undefended suit. The wife, though duly served with the citation and petition, did not appear to defend.

According to the judge, “This is the wife’s application by way of summons for the following orders: that the ‘decree nisi’ be set aside; that she be at liberty to file an entry of appearance and an answer to the petition; that she be granted her costs and such further or other relief as may be just.

“The main ground on which her application rests as revealed in her affidavit in support, is that there was condonation following on which there was a resumption of cohabitation. This was brought about, she says, by a ruse on her husband’s part in the following manner: she had been persuaded by him a few days before June 21, 1967, the date the citation and petition were served on her, to resume cohabitation with him at 147 Garnett Street, Kitty, and was instructed by him to inform her lawyer not to proceed any further and to discontinue proceedings as differences between them had been resolved.

“ Accordingly, on or about July 9, 1967, the conjugal state was resumed and sexual relations recommenced. This state of affairs continued until October 18, 1967, when she left him having ‘heard that a ‘decree nisi’ had been pronounced against her on October 2, 1967, in proceedings which he had led her to believe were abandoned. She is now desirous of entering an appearance and filing an answer and, in the circumstances, prays that the ‘decree nisi’ be set aside.

“The husband strongly denies there was a resumption of cohabitation as alleged, or that he ever instructed his wife not to proceed further in defence of the petition, although he admits that his wife did return to the matrimonial home; he however insists that she performed no matrimonial chores nor slept in the same room with him when she returned. He brands the allegations contained in the affidavit in support false and malicious and designed to embarrass and cause him unnecessary expense. In paras. eight and nine of the affidavit in reply, he avers that this summons is misconceived both as to jurisdiction and for reasons of non-compliance with procedural requirements of Chapter 166 and the related rules, Justice Crane declared.

He added, having given this matter some thought, I must perforce agree that the objections raised by the husband are weighty and must prevail; and that I have no jurisdiction to entertain this application.`

Justice Crane agreeing with the objection of counsel for the petitioner that the correct procedure had not been observed, added, “What clearly ought to have been done by the applicant in this matter was for her to have given the information of what she has sworn to in her affidavit to the attorney general; he is the Queen’s Proctor in matrimonial cases, and it should have been left to him to take such proceedings under section 12 (4) of the Matrimonial Causes Ordinance, Chapter 166 as he thought fit, bearing in mind, as the extract from Halsbury’s Laws of England shows, that the real object of the interim period of six weeks is for the attorney general to make enquiries into the petitioner’s case.

Justice Crane declared that for the above reasons. “I must rule that it is now too late for the wife to enter an appearance and file an answer. These proceedings are misconceived and the orders sought are consequently refused.

Summons dismissed.