Gwaladys v Charles (Divorce Cause No. 2of 1942) [1942] EACA 21 (1 January 1942)

$\overline{21}$

DÍVORCE JURISDICTION

BEFORE LUCIE-SMITH. J.

GWALADYS MARY STUART PRINCE. Petitioner

v.

CHARLES EDWARD STUART PRINCE. Respondent

Divorce Cause No. 2 of 1942

Divorce—Petition—Unreasonable delay in presentation—Discretion of Court.

*Held* (19-10-42).—Each question of what is unreasonable delay in presenting or prosecuting a petition must be dealt with on its facts and merits.

Barret for Petitioner.

$\mathbf{r}$

No appearance of Respondent.

JUDGMENT.—In this case I am satisfied from the evidence that the petitioner is entitled to the *decree nisi* for which she asks if she has satisfied the Court that she has not been guilty of unreasonable delay in presenting or prosecuting the petition.

The petitioner went to England from Kenya in May 1930 and has never since returned.

According to the petition the respondent has been living with the woman. named since January 1936 but the petition herein was not filed until January 1942. With the question of delay in mind the Court ordered that the petitioner's. advocate should file an affidavit setting out the reasons for the delay and a chronological history of the proceedings in this case. Such affidavit has been duly filed

From the affidavits filed by the petitioner it would appear that she and the respondent kept up a somewhat desultory correspondence from 1930 to 1934. In 1934 the petitioner consulted her solicitors in England who in turn got in touch with Messrs. Shapley, Schwartze and Barret. Correspondence dragged on between the English and Kenya solicitors, the latter making various local inquiries, until May 1940. In July 1941 the necessary documents were prepared in Nairobi and sent to the English solicitors. These necessary documents were received back in Nairobi on 12th January, 1942 and this petition was filed on 16th January 1942.

In her two affidavits the petitioner gives two different reasons for the delay (1) the difficulties experienced in obtaining satisfactory evidence and postal delays. in corresponding between England and Kenya and in particular since the outbreak of war and (2) her lack of private means, and her not being in a financial position to proceed with the matter until the question of maintenance was settled.

In Boulting v. Boulting 33 L. J. P. 33 Sir Creswell Cresswell said "Delay is not of itself a bar to the suit. But it is a most material matter, which, unexplained, would lead the Court to conclusions fatal to the petitioner's relief." Such conclusions might be connivance, condonation, or lack of sincerity. That dictum was given in 1864 but according to Latey the modern practice has resulted in an increase in the exercise of the Court's discretionary powers.<br>Binney v. Binney (1936) p. 178 and Greenwood v. Greenwood (1937) p. 157 are clearly distinguishable from the present case.

Poverty was always considered by Parliament a sufficient excuse for delay in presenting a bill of divorce, and this rule has ever since been acted upon in the Divorce Court.

Judging from the decision of the Court of Appeal in *Mason v. Mason* (1883) 8 P. D. 21 each case must be dealt with on its own facts and merits and this proposition is borne out by Faulkes v. Faulkes (1891) 64 L. T. 834, see also Hunter v. Hunter (1934) P. D.

92.

Taking into consideration all the circumstances of this case the poverty of the petitioner the long drawn out correspondence and later the difficulties of communication owing to the war I have come to the conclusion that the delay although great was not unreasonable.

I order that a *decree nisi* do issue as prayed with costs against the respondent. I further make an order that the respondent do pay to the petitioner the sum of £50 per annum by way of alimony *pendente lite* as from 16th January, 1942.