Supreme Court
Action No. 39 of 1981
January 7, 1982
Alcantara, J.

Messers W. H. Courtenay & Co., for the Petitioner
Mr. W. P. Elrington, for the Respondent
Mr. Pitts, for the Co-Respondent

Petition for Divorce - Adultery by Respondent - Respondent alleging condonation - Whether sexual intercourse with an adulterous wife after the husband was aware of wife's adultery gives rise to a conclusive presumption of condonation - Whether presumption of condonation rebuttable - Whether act of sexual intercourse between Petitioner and Respondent did amount to condonation - Petition Dismissed - Costs - Matter of custody and maintenance adourned for a later stage.

J U D G M E N T

This is a Petition for divorce by the husband against his wife on the grounds of adultery.

The Petitioner is a Minister of the Government. He married his wife, the Respondent on the 26th day of October, 1957. There are six children of the marriage of which only three are minors. Apart from the issue under dispute this was a happy and successful marriage. There is no evidence or even insinuation to the contrary. One thing is obvious and that is that both the Petitioner and Respondent were and are very good parents to their children.

The Petitioner alleges that the Respondent was unfaithful to him with the Co-Respondent, who at one time was the Permanent Secretary in his Ministry. Mr. and Mrs. McKoy had a very good friend and that is the Co-Respondent, Mr. Samuel Ferguson Smith. He used to visit the matrimonial home frequently and was very useful to the family. He was always willing to be of help and also drive Mrs. McKoy to Belize City from Belmopan whenever he was himself coming down to Belize City on business.

In the Petition, apart from the general allegation of adultery, there are three specific allegations of adultery against the Respondent with the Co-Respondent: on the 9th day of March, 1979; on the 1st day of May, 1981; and on the 2nd day of May, 1981. The Respondent in her answer denies ever having been unfaithful to her husband. She further pleads condonation, in the event of being found guilty of adultery. Her plea of condonation is based on three instances of her husband having had sexual intercourse with her. There is an allegation that the Petitioner had sexual intercourse with the Respondent on various dates during the month of August, 1981, and there are two specific allegations on given dates: on the 7th day of September, 1981 and on the 21st day of September, 1981.

The Petitioner has not filed a Reply denying the condonation alleged, but his case is that it never took place.

The Co-Respondent in his Answer denies all the allegations of adultery.

All the acts of adultery between the Respondent and Co-Respondent and sexual intercourse amounting to condonation between the Petitioner and the Respondent are alleged to have taken place at the matrimonial home, 35/37 Unity Boulevard, Belmopan.

I am very grateful to Counsel for having drawn my attention to the following authorities:

For the Respondent -

• Section 140 of Chapter 5 of the Laws of Belize, Supreme Court of Judicature Ordinance

• Blyth v Blyth (1966) 1 All E.R. 525

• Preston-Jones v Preston Jones (1951) 1 All E.R. 124

• Cramp v Cramp & Freeman (1919 - 1920) 36 T.L.R. 333

For the Co-Respondent -

• Section 168(2) of Chapter 5 of the Laws of Belize

• Rayment v Rayment & Stuart (1910) P. 271

• Scott v Scott (1957) P. 1

For the Petitioner -

• Pritchard v Pritchard & Sims (1966) 3 AER 601

• Sections 152 and 168 of Cap. 5 of the Laws of Belize

• Halsbury's Laws of England 3rd Ed. Vol. 12 p.237

• Blyth v Blyth (1966) (supra)

In setting out to prove adultery the Petitioner has undertaken an onerous task. The proof required is strict. The balance of probabilities is just not enough; it must be the preponderance of probabilities. The Court must be satisfied that the evidence adduced is conclusive. The question which this Court must decide is whether after having heard all the evidence the Petitioner has succeeded in establishing his case to the satisfaction of the Court.

I am satisfied that he has, insofar as the acts of adultery on the 1st and 2nd of day of May, 1981, are concerned. I accept the evidence of Miss Beverley Reynolds as to what happened at 35/37 Unity Boulevard on those two days, of how the Co-Respondent went into the matrimonial bedroom with the Respondent and stayed there until the early hours of the morning on both dates. I am satisfied that Miss Reynolds is a witness of truth, and her evidence has not been shaken either by cross-examination or by any of the evidence adduced by the Defence. On the other hand I am not satisfied with the evidence of Miss Noemi Petillo and I reject the same. In any event, even if I had accepted her evidence about the alleged adultery on the 9th March, 1981, I would still hold that it is incapable of proving an act of adultery. I further find that the evidence of the Petitioner is incapable of proving the general allegation of adultery in the Petition. At its highest, it is capable of supporting the evidence of Miss Beverley Reynolds. The incident of the car chasing in Belmopan on the 15th July, 1981, when the Petitioner found the Respondent in the Co-Respondent's car in suspicious circumstances is evidence I can take into account to show the relationship between the Respondent and Co-Respondent.

Having found the Respondent and Co-Respondent guilty of two particular acts of adultery I must now direct my mind as to whether there has been condonation as alleged in the Answer filed.

Here is a nice legal point for me to decide. What is the Law of Belize on this matter? The Law of England is clear. The House of Lords in the case of Henderson v Henderson (1944) A.C. 49 decided that sexual intercourse after the husband was aware that his wife was guilty of adultery gave rise to a conclusive presumption against him that he had condoned the offence. By legislation, the Matrimonial Causes Act, 1963, the position was altered as the presumption could be rebutted by evidence.

The Law of Belize is that you follow English law, but not English legislation, so the question arises: Is sexual intercourse after knowledge of adultery a conclusive presumption against the husband (it was never against the wife) or a rebuttable presumption? Subject to being corrected by the Court of Appeal I say that it is a rebuttable presumption. I say this because the House of Lords in Henderson V Henderson were deciding a question of adjectival law, not of substantive law. In 1963 it was not thought possible that the House of Lords could reverse its own decision, therefore legislation was required. Three years later, on the 26th July, 1966, the Lord Chancellor, in the House of Lords sitting as an Appellate Court, made a statement to the effect that the House could in a proper case reverse its own decision. This is the legal position today. This being so, if there had been no legislation in England in 1963, it is possible that the case of Henderson v Henderson might have been reversed, and the rebuttable presumption rule be directly applicable to Belize. I find no good reason why the law of Belize should inherit a bad rule (conclusive presumption) and not be able to do anything about it. By adhering too strictly to English precedents, the common law of Belize will cease to grow. Like a coral reef, it will become a structure of fossils.

Having decided, not without some trepidation, that sexual intercourse after knowledge of adultery is a rebuttable presumption, I must now decide whether any of the allegations of sexual intercourse in the Answer have been established and whether there is any evidence which is capable of rebutting the inference of condonation.

To prove that sexual acts took place, the Respondent has only to adduce evidence which will satisfy the Court on the balance of probabilities. That is the law. On the evidence I am satisfied that the act of sexual intercourse of the 21st September, 1981, as alleged by the Respondent, took place. Even the Petitioner was in difficulty during his cross-examination to explain what he was doing in the matrimonial bedroom at 3 o'clock in the afternoon with the Respondent when divorce proceedings had already started. The other acts of sexual intercourse are not conclusive enough to enable me to make a finding. I reject the evidence of Miss Doreen McKoy. I therefore hold that on the whole of the evidence before me there is sufficient proof of one single act of sexual intercourse on Independence Day. The question which arises now is: Did it amount to a condonation of the offence of adultery?

The answer is that prima facie it is condonation. The Petitioner was well aware of his wife's guilt. There was no fraud or persuasion on the part of the wife for this resumption of sexual life. Although the husband does not admit that the act took place, he says in his evidence that more or less at the relevant time he was 'giving a hard talk on the matter of Smith', and that she invited him upstairs to the bedroom so that people outside should not hear their conversation.

Because the Petitioner has taken the stand that there was no sexual intercourse, there is, strictly speaking, no need for him to give evidence to rebut the presumption of condonation, but the fact remains that there is no evidence in rebuttal.

I find that the husband by his act of sexual inter-course condoned his wife.

I should add that there are three witnesses on which I cannot place any reliance. They are Miss Noemi Petillo, Miss Doreen McKoy and the Co-Respondent Smith. After having seen and heard them in the witness box, I do not accept their evidence on any of the important matters in issue.

I find that Miss Beverley Reynolds and Mrs. Ruth Pandy are witnesses on which the Court can rely. They are vital witnesses for the Petitioner and Respondent respectively.

I dismiss the Petition. Having found for the wife I am compelled to dismiss the claim against the Co-Respondent. Were it legally possible I would award damages against the Co-Respondent, but this is not possible. He took advantage of a trust placed by the Petitioner on him and by his action has destroyed what appears to me to have been a happy home. Neither can I award costs against him even though I have found him guilty of adultery.

Subject to what Counsel might have to say on the matter, I propose to make an order that the Petitioner pays the Respondent's costs but that the Co-Respondent pay his own costs.

On the subject of custody and maintenance I propose to adjourn the matter and give the parties liberty to apply.

Petition dismissed against Respondent and Co-Respondent. Petitioner to pay Respondent's costs. Co-Respondent to pay his own costs. The question of custody and maintenance to be dealt with at a later stage. Liberty to the parties to apply.

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