Blackstone v Blackstone

• Jurisdiction: Antigua and Barbuda
• Judge: Davis, C.J
• Judgment Date: 18 July 1975
• Neutral Citation: AG 1975 CA 2
• Docket Number: Civil Appeal No. 4 of 1975
• Date: 18 July 1975
• Court: Court of Appeal (Antigua and Barbuda)

Court of Appeal

Davis, C.J.; St. Bernard, J.A.; Peterkin, J.A.

Civil Appeal No. 4 of 1975

Blackstone

and

Blackstone

Family law - Divorce — Appeal against grant of a decree nisi to husband — Evidence that a petition had been filed but not disposed of by final order — Whether this rendered the hearing of a second petition a nullity.

Davis, C.J

1 This is an appeal against a decree nisi pronounced on 9 ^th May 1975 in favour of the petitioner/respondent and the granting to him of the custody of the children of the marriage. The petition was filed on 23rd April 1975 and was marked “undefended” in the List.

2 One of the grounds of appeal was that service of the petition was not effected on the appellant, but having regard to the conclusion to which I have arrived, it is not necessary to determine this issue. Suffice it to say that petitions in divorce matters must be served personally (except otherwise ordered by the Court) and the affidavit of service must always show the means of knowledge of the person served. The ground of appeal which in my view is substantial and which is not without difficulty reads as follows:–

“That the learned judge ought not to have heard the petition as there was at the time another petition before the Court by the same petitioner which. had not been dismissed or otherwise disposed of by final order.”

3 It is common ground that the petition by the same petitioner was filed on 23 ^rd April 1974, to which answer was made, but the petition was never heard or dismissed. But it is alleged that the parties had decided to abandon it.

4 The rule as I understand it is that a divorce petition once filed, cannot be withdrawn or abandoned but must be dismissed or otherwise disposed of by final order. As no steps were taken in this case to have the petition of April 1974 dismissed, the question arises as to the effect that...