1 C.L.R. 1983 July 28 [A. Loizou, }.] SYLVIE ENOTIADES NEE LALAURIE, Petitioner. CHRISTAKIS CHARAI.AMBOUS ENOTIADES. Respondent. (Matrimonial Petition No. 12/83). Matrimonial Causes—Practice—Adultery—proof by affidavitevidence where witnesses are abroad—Principles applicable. 10 25 This was an application by the petitioner, in a matrimonial petition for a decree of divorce on t'ue ground of the husband's adultery, for an order granting leave to her to prove the facts of the case stated in the petition, partly by an affidavit sworn by her and partly by oral testimony. The application was based on the ground that the petitioner a French national, was residing in the Republic of, France and .was unable to attend and give oral evidence on the date of the hearing due to the nature of her employment in France; and on the ground that the basic facts of the case pertaining to the alleged adultery will be sworn by a witness who will be produced inCourt. What was sought to be proved by affidavit evidence were the rest of the facts alleged in the petition. Held, that though leave to prove adultery by affidavit in undefended cases where the witnesses are abroad, or for other reasons could not give evidence in open Court, should be given only as exceptional indulgence in special -circumstances it is recognized that in special circumstances adultery might be proved by affidavit alone, and this mode of proof is permitted where there is evideoce aliunde and where the affidavit provides merely corroborative evidence of adultery; that in the light of the special circumstances pertaining to the petitioner which call for exceptional indulgence, the application will be granted as in the present case, it is not the adultery itself that is sought to be pro\ed by affidavit evidence, as in respect of that there 461 Enotiades v. Enotiades
(1983)is evidence aliunde, and the affidavit will cover, as it appears, the"fringe*' ofthecase,plusthesupplyofcorroborativeevidence of adultery. Application granted. Cases referred to: 5 Adams v. Adams·and Guest[1873] L.T. 699; Ling v. Ling and Croker[1858] I Sw. & Tr. 180; Gayer v. Gayer [1917] P. 64; Wilson v. Wilson and Berry[1929] 73 Sol. Jo. 284; Goodmanv. Goodman and Pinfield[1920] P.
- 10 Application. Ex parte application by the petitioner for leave to prove the facts of the case stated in the petition, partly by affidavit sworn by her and partly by oral testimony. M. Montanios, for applicant-petitioner. A. Loizon J. gave the following ruling. This is a matrimonial petition filed on behalf of the wife for a decree of divorce on the ground of adultery by her husband who, though duly served, failed to enter an appearance or contest the proceedings. This ex parte application has been made for an order granting 20 leave to the petitioner to prove the facts of the case stated in the petition, partly by an affidavit sworn by her and partly by oral testimony. This application is based on rules 39 and 102 of our Matrimonial Causes Rules and on rule 25of the English Matrimonial 25 Causes Rules of
- In support thereof an affidavit sworn by counsel for the petitioner hasbeen filed deposing, inter alia, that the petitioner is a French national and that she resides at "Le Cruzel" Foulayronnes, 4700 Agen, Lot et Garonne, in the Republic of France, and that she isunable to attend and give oral 30 evidence on the date of the hearing due to the nature of her employment in France. Furthermore, as explicitly stated by counsel, the basic facts.of the case pertaining to the alleged 462 15 1 C.L.R. Enotiades *. Enotiades \. Loi/ou J. adultery will be . «orn by a witness who wilt be produced in Court; what is sought to be proved by affidavit evidence arc the rest of the facts alleged in the petition The question of affidavit evidence is dealt with, bv reference ;> to the appropriate English Rules in Raxden on Dixoue. Sth edition, ρ
- para 66 where it is stated "Parties nu\ be permitted (a) to verify their respective cases whollv. or in part (b), by affidavit (c). but. unless the older giving such leave be drawn up. it seems the proceedings would be irregular"" Tin» 10 statement of the Law is based on rule 25 o( the Matrimonial Causes Rules of 1957 set out in lull in Raxden (supra) ρ 1341 and for the sake of brevitv I will not reproduce it here s 20 25 }Q 35 40 It was the tendenc) of the Courts to allow the "fringe" ol a case, not substantial parts, to be proved bv affidavit (See Adonisι Adams and Guest. [1873] LT. 699 and Ling ι Linn and Ciokei, (1S5S) 1 Sw & Tr. ISO (dissolution), referred to in Raxdenon Dixoice, ρ 578) But as pointed out therein, the tendency was to relax this lule until the former practice was disapproved bv the Court οΐ Appeal in Gaxci ι Giixa [1917] Ρ 64 where it was laid down that "leave to prove adulter) bv affidavit in undefended cases where the witnesses were abroad. or for other reasons could not give evidence m open Court. should be given onl> as exceptional indulgence in special cir cumstances". It was further recognized in that wase. however that "in special cireun stances adulterv might be pioxcd bv affidavit alone, and the Court now not tnliequetitlv permits this mode of proof where there is evidence aliunde and where the affidavit pioxides meielx corroborative evidence of adulterv see Wilson ι IIihon and Bern [1929] 1} Sol Jo. 2S4 (evidence entirely bv atfidav it)." Guided bv the aforesaid exposition ot the Law and bearing m mind die special circumstances pertaining to the petitioner which call for exceptional indulgence. 1shall grant the application a> in the present case, as already stated, it is not the adultery itself that is sought to be proved bv affidavit evidence, as in respect of that there is evidence aliunde, and the affidavit will cover, a** it appears, the "lunge" ot the case, plus the supply of corrobo rative evidence o\~ adulterv. 1 take this opportunity to point out that where such leave is g'x en to a petitioner to giveevidence by atfidax it. there should be 463 Λ. Loizou J. Enotiades v. Enotiades
(1983)stated insuch affidavit all theadmissible facts tothe knowledge of the deponent which bear upon thecase, whether they prove adultery or net. (seeGoodman v.Goodman and Pinfield, [1920] P. 67). Theapplication is,therefore, granted with noorderastocosts. 5 In view,however, of the requirement that theorder hastobe drawn upbefore thehearing,otherwise theproceedings wouldbe irregular, thehearing of thispetition,which wasfixed for today, is adjourned tothe9thAugust, 1983, at 9.30 a.m., soallowing time for the drawing up of this order. 10 Application granted. No orderas tocosts. 464