Supreme Court
Action No. 40 of 1983
18th May, 1984
Moe, J.

Mr. Denys Barrow for the Petitioner
Mr. Joseph C. Gray for the Respondent

Matrimonial Law - petition for dissolution of marriage - petition for alimony pendente lite - no affidavit filed in support - application by respondent to strike out petition for failure to file affidavit - rule 3(1) of Matrimonial Causes Rules - affidavit ought to have been filed - effect of failure to comply with rules - Order LXXVI Rule 1 of Supreme Court Rules - Rule 95 of Matrimonial Causes Rules - omission to file and serve affidavit not so fundamental a defect as to justify striking out petition - breach can be rectified without injustice to respondent - application to strike out refused - petitioner directed to file and serve affidavit within 7 days.

J U D G M E N T

In this Action, the petitioner on 10th August, 1983 filed a petition for dissolution of her marriage with the Respondent. The petition contained a prayer for alimony pending suit. An appearance was entered on behalf of the Respondent and an answer presented on 15th September, 1983.

On 24th November, 1983 the Petitioner filed a petition for alimony pendente lite which was served on the Respondent. No accompanying affidavit was filed. No answer to this petition was delivered and the petition set down for hearing.

The Respondent has asked that this petition for alimony pending the hearing of the suit be struck out on the ground that the petition is not supported by an affidavit. He relied on Rule 3(1) of the Matrimonial Causes Rules which provides:

"Every petition shall be accompanied by an affidavit made by the Petitioner, verifying the facts of which he or she has personal cognizance, and deposing as to belief in the truth of the other facts alleged in the petition, and such affidavit shall be filed with the petition. A petition for restitution of conjugal rights shall further state sufficient facts to satisfy the Court that a written demand for cohabitation and restitution of conjugal rights has been made by the Petitioner upon the party to be served and that, after a reasonable opportunity for compliance therewith, such cohabitation and restitution of conjugal rights have been withheld."

He contends that the Rule not having been complied with, it cannot be done now.

The Petitioner has argued that Rule 3 deals with petitions referred to in that rule that is, petitions for dissolution of marriage, nullity, judicial separation, restitution of conjugal rights and jactitation of marriage but does not deal with petition for alimony pendente lite which is provided for by Rule 57 which says:

"A wife who is petitioner in a cause, after filing her petition may file and after serving the same may serve, a petition for alimony pending suit, and a wife after entering appearance to a petition may file and serve a petition for alimony pending suit."

The Petitioner had also indicated that what the petition had done was in keeping with practice in these courts. I adjourned to look at precedents used in these Courts but I have not been able to discover any previous matters which would indicate the practice.

I accept the submission that the petition now before the court ought to have been accompanied by an affidavit filed with it as required by Rule 3 of the Matrimonial Causes Rules. There has thus been a failure to comply with those Rules. The question is whether the failure is such that the petition must be struck out.

I remind myself first of Order LXXVI Rule I Supreme Court Rules which provides that -

"Non-compliance with any of these Rules, or with any rule of practice for the time being in force, shall not render any proceedings void unless the Court or a judge shall so direct, but such proceedings may be set aside, either wholly or in part, as irregular, or amended, or otherwise dealt with in such manner and upon such terms as the Court or judge shall think fit."

I refer also to Rule 95 Matrimonial Causes Rules which provides:

"In any matter of practice or procedure which is not governed by statute or dealt with by these Rules the Rules of the Supreme Court in respect of like matters shall be deemed to apply."

I therefore consider whether this breach in the procedure can be rectified without any injustice to the Respondent.

The Respondent was aware from the date of service of the petition for dissolution that the Petitioner was seeking Alimony pending suit, i.e. as early as September 1983. Again on 29th November 1983 when the Petitioner filed the present petition she made averments as to the Respondents annual income and as to his real and personal property. In my view the required affidavit would not have taken the matter any further than letting the Respondent and the Court know which of the averments was a matter of personal knowledge and which a matter of belief. I also bear in mind that what the court is to investigate is the averments in the petition.

Consequently I do not consider the omission to file and serve an accompanying affidavit is so fundamental a defect as to justify striking out the petition. I think the matter can be dealt with under the provisions of Order LXXVI Rule 1. The application to strike out the petition is refused and I direct that the petitioner file an affidavit within 7 days and serve the same on the Respondent.

Petition adjourned until Friday 8th June, 1984.

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