IN THE SUPREME COURT OF BELIZE A.D. 2001

Action No. 96 of 2000

 

Between	(ESTHER FRAZER	PETITIONER
	( ( ( And ( (
	(HUBERT FRAZER	RESPONDENT

H. Elrington for Applicant/Respondent
S.M. Pot for Respondent/Petitioner

J U D G M E N T

AWICH J:

Notes:

Matrimonial cause and Application to file appearance and answer late, Respondent did not intend to defend petition on ground of cruelty, pregnancy of petitioner unknown to respondent before time to file defence expired.

This is judgment in the application of Mr. Hubert Frazer who was the respondent in a petition for divorce filed on 27.7.2000 by his wife, Esther Frazer the petitioner. The petition deposed to cruelty in detail, and that the marriage had broken down irretrievably. She also disclosed that there had been proceeding in court in 1999, leading to a decree of judicial separation.

Mr. Frazer did not enter appearance or file answer to the petition. Over two months later, on 11.10.2000, he filed the application, the subject of this judgment, asking in effect to be allowed to file appearance and reply so that he proceeds to contest the petition and oppose the divorce.

Learned Counsel Miss S. M. Pot for the petitioner, respondent in the application, vigorously opposed the application mainly on the grounds that a long time had passed, the applicant has no good defence, he even deposed so in his own affidavit in support of his application for leave to file answer late. Miss Pot cited two cases as authorities for her submission namely; Collins v Collins [1972] 2 All ER 658 and Spill v Spill [1972] 3 All ER 9.

The reason the applicant changed his mind about not defending is, that he discovered that the petitioner was pregnant only after he had failed to answer the petition in time. It follows that the applicant wants to introduce adultery in the petition. Is that good reason for allowing him to file answer late and defend the petition?

In my view I think that is good reason. Divorce case is about status and reputation and sometimes ancillary matters - matrimonial property and custody of children. Whereas the applicant might be prepared to admit bad reputation for cruelty, he might also wish to disclose what he alleges is misconduct on the part of the respondent/petitioner, misconduct which he did not know about until time to file answer had elapsed. I think it is good reason if material fact is discovered after time has expired to file a pleading. In Collins v Collins supra leave was refused because all the controversies leading to the separation and divorce would be investigated on the applicant's (the wife's) claim for periodic payment anyway, and the petition was on the neutral ground of separation not adultery. In Spill v Spill the applicant did not file affidavit to explain his delay, and the applicant who had signed a reply that he would not defend, later wanted to defend merely to gain advantage in negotiation. In this case the explanation is that the applicant only learnt the facts he wants to use as defence and may be in counter petition, after time for filing answer had elapsed.

Important also is the fact that if the adultery is true, the petitioner ought to have filed discretionary statement disclosing the adultery, whether or not the petition would be defended.

I allow the application and grant leave to the applicant to file his appearance and answer out of time. He is to do so in eight days. Thereafter proceedings will be conducted according to the Rules.

Costs up to this time will be paid by the applicant.

Delivered this Tuesday 24th day of April, 2001

At the Supreme Court, Belize City, Belize.

Sam Lungole Awich
Judge