Scotland v Scotland

• Jurisdiction: Antigua and Barbuda
• Court: High Court (Antigua)
• Judge: Bishop, J.
• Judgment Date: 22 August 1978
• Neutral Citation: AG 1978 HC 34
• Docket Number: 46 of 1973
• Date: 22 August 1978

High Court

Bishop, J.

46 of 1973

Scotland

and

Scotland

Dane Hamilton for the petitioner.

Henson E. Stevens for the respondent.

Practice and procedure - Affidavit — Matrimonial causes Affidavit for dissolution based on alleged cruelty — Petitioner to disclose manner in which he condoned that cruelty.

Bishop, J.

1 On the 25 ^th March 1961, Ovasene Elizabeth Agusta Gabriel, spinster, was lawfully married to Austin Stratmore Scotland, in the Register Office in the District of Hackney in the Metropolitan Borough of Hackney, in England. They lived and cohabited at various addresses in England, then in Antigua, and in St. Thomas Virgin Islands. They finally cohabited at Bolans Village in Antigua.

2 On the 22 ^nd June 1961 their son, Tony Michael Stratmore, the only child of the family, was born in England.

3 Just over twelve years after they were married, on the 17 ^th August 1973, a petition seeking dissolution of their marriage was filed by the wife, on the ground that since the celebration of the marriage her husband had treated her with cruelty.

4 On the 26 ^th September 1973 appearance was entered on behalf of the husband, also herein called the respondent; and then nearly two months later, an Answer was filed. In it the respondent denied the cruelty alleged and made the alternative assertion that if the respondent was guilty of cruelty then it was condoned by his wife, the petitioner “knowingly living and cohabiting with the respondent, cooking for him, and having sexual intercourse…. up to the middle of September 1973 even after the filing of the petition.” The respondent sought dismissal of the petition.

5 On the 9 ^th November 1973, or a day after the Answer was filed, the solicitor for the petitioner filed (a) summons for leave to amend the petition “as shown in red on the copy of the petition lodged” and (b) an ex parte summons “for an order until further order nisi restraining the respondent from molesting the petitioner and from continuing to live at the matrimonial home…. pending the determination of the petition….” New orders may have been made by a Judge in chambers, in respect of these applications, but to date none have been filed. In my view the solicitor for the petitioner should have drawn up and ensured the filing o the Orders which may have been made by the Judge before the Registrar provided his certificate that the proceedings in the cause were correct on the 29 ^th March 1978. This Court would have been made aware of the dates of the Orders of the judge.

6 On the 20 ^th March 1974, an amended petition was filed. Then on the 11 ^th November of that year, or more than seven months later, what purported to be an amended Answer was filed. I say “purported to be” because it was not so headed nor were the amendments clearly shown in the customary manner. It is clear on the Amendment Petition that it was made pursuant to an Order of a Judge in chambers, nor was there on the Record any clear indication of the date of service of the amended petition on the respondent's solicitor.

7 On the 4 ^th December 1974 an ex parte summons similar to that filed on the 9 ^th November the previous year, was filed on behalf of the petitioner; and on the 10 ^th February 1975, Nedd J. made an Order in the terms of the summons.

8 It was hen on the 19 ^th September 1977, almost three years after the purported amended Answer was filed, or over four years from the date the petition was filed, that different solicitors filed a Reply to the answer. Rule 18 of the Matrimonial Causes Rules 1937 states that no Reply shall be filed without leave except where relief is claimed in the Answer in which case a reply may be filed within fourteen days from the delivery of the Answer. Was there compliance with this Rule? It would seem not.

9 The solicitors who filed that Reply filed a notice of change of solicitors some five months later (on 15 ^th February 1978).

10 It seemed to me, in the absence of explanation, that the delay in the completion of the pleadings and in taking the necessary steps thereafter, was inordinately long.

11 I wish not to make these observations. The petition in the Judge's copy of the Record (this copy was filed on 21 ^st February 1978) differed from the original petition filed in August 1973. The former had only nine paragraphs before the prayer. The latter appeared to have had an erasure and then paragraphs 10 and 11 were added immediately before the prayer. It would seem that these paragraphs may have been added to the original petition subsequent to the date of...