Francisca Jolly v Sylvester Jolly

,,F ANGUILIiA THE EASTERN CARIBBEAN SUPREME COURT IN THE HIGH COURT OF JUSTICE CALIM NO, AMHMT 2011/OOO5 BETWEEN: FRANCISCA JOLLY Petitioner And SYLVESTER JOLLY Respondent Appearapces: Mr, Valencia Hodge for the petitioner The Respondent not being present and not being represented 2011: July 26 JUDGMENT I rJ FAY' J (Ag)r I will deal with the facts of this matter briefly, The parties were married on 6 August 2005 at Gallows Point, St John in the United States Virgin lslands, After the n;arriage, they lived together in the United States Virgin lslands. However, the rnarrrage was not a success and the parties have lived separalely and apart for a continuous period of more than 5 years since the presentation of lhe petition in this matter on 7 February 2p11, There afe no children of the marriage, The Petitioner lives in Anguilla where she is epployed as a Registered Nurse, Her petition slates that she is domiciled in Anguilla and tt'iat she has habitually been a resident of Anguilla during the year immediately piior to the pfesentation of the petition, I allowed an amendment to the petition to asiert that the Petitioner has been ordinarily resident in Anguilla for more than 3 years. The Respondent is not resident in Anguilla, He has never been ordinarily resident oi domiciled in Anguilla, t2ll I heard evidence from the Petitioner and am satisfied that everything that she told me was trle' 'Ihe evidence from the Petitioner was sufficient to make out a case for ihis Court to exercise its_jurisdiction under the Matrimonial Proceedings and Property Act to make an Order Nisi if I can be satisfied that there is jurisdiction forihe Courtto make such an order in this matter. v t3l [Ir' Hodge, counsel for the,,Petitioner, accepts that the usual jurisdiction of this court in divorce matters arises from the jurisdiciion or tn. husband, Thus in the ordinarv course: (a) if the husband is domiciied in Anguilla, the courl has jurisdiction; (b) if the husband is not domicired in Anguiila, the court does not ordinariry have jurisdiction, The exception tolhe general rule arises in cases to which section 1g of the Matrimonial flroceedings and property Act ('the Anguillan Act,) applies t4l $ection 19 is captioned "Additronal iurisdiction in proceedings by a wife,, andprovides as frillows: (1) without prejudice to any jurisdiction exercisable by the court apart from this sec/lon, the c9uft shirt have jurisdiction to en:ttirtaii pioceeaings by a wife, notwithstanding that the huiband is not domicited in Anguila * (a) ln the ,case of any proceedings under fhis Acf (other than proceedings under section 15 or sections J7 to 42), lf _ (i) The wife has been deserfed by her husband, or (ii) The husband has been d-eported from Anguila under any Iaw for the time being in force relating to dbportation, And the husband,yas immediatery before fhe deserfio n or deportation domiciled in Anguilla; and (b) ln the case of proceedings for divorce or nuility of marriage, if the wife is resrdenf in Anguilla and has been ordinarity resident there for a period of J years immediatety preceding thetommencement of the proceedings, (2) In any proceedings in which the coutl has jurisdiction by virtue of subsecfion (1), the r'ssues sLtaltbe determinod in accordance with the law which would be appticabre thereto if both partie:s wiri oomicited in Anguilla at the time of the proceedings, IvJ I6l In this matter, the Respondent was never domiciled in Anguilla so the petitioner cannol I:ly on section.l9(1)(a). However, the Petitioner has been"oroinaiity resident i; Ang;iib fof a period of more than 3 years immediately precedlng the commencement of the proceedings, In the circumstances, the petitioneifalls within-section lg(1Xbj, Tfle questiorr that I have to consider is whether the use of the word 'and', at the end of :ii_tg9!].1 ,19(1)(a) is conjunctive or disjunctive - in ottrer worUs; does the use of that word mean that in the case of pro.ceedings ior divorce or nullity, the wife has to establish the refruirements of both (a) and (b), or ii it sufficient for her to iirirrialrish (a) or (b). 17l MtJ' Hodge submitted that the use of the word was disjunctive rather than conjunctive, He was unable to produce any authority to support thai proposition, and informed me that thqre was no authority in ,Anguiila on tire p'ornt. Mr,' H;Jd;;s not abre to cite any authority from a similar sectionbf the matrimonial laws or rnv oti rijurisdiction, not was he g '7 aple to cite any authority where the word "and" was used in a disjunctive rather than a crrnjunctive manner, IB] I am satisfied that the word "and" can be used in a disjunctive rather than a conjunctive sense in certain circumstances - see e.g. Re H [1994] Fam 105 In determining how {he word should be construed in section 19, I thought it appropriate to ascertain whether the particular wording of section 19 appeared in the matrimonial law of any other jurisdiction, and if it did so to look at any judicial decisions from such jurisdictions on lhe proper iriterpretation of the section, Unfoftunately, whilst lwas able to find provisions in St. Lucia and in England, that were similar to section 19, the word "and" did not appear ai the send qf the equivalent of subsection (1)(a) in those jurisdictions, tqt tvl lhere were provisions in the laws of England & Walest which resembled section 19 of the A'nguillan Act, although the law changed to a different regime in England in 1979, I propose to analyse the law as I understand it developed in England, Siection 13 Matrimonial Causes Act '1937 (the "English MCA 1937") contained a section l1 0l Qaptioned Jurisdiction under Part Vll of the Princrpal Act in case of Husband's change of domicile which is similar to section 19(1)(a) of the Anguillan Act, Section 13 of the English |\tlCA 1937 provided that: Vlhere a wife has been deserted by her husband, or where her husband has been ]epofted from the United Kngdom under any law for the time being in force relating to the Qeportation of aliens, and the husband was immediately before the desertion or cJepoftation domiciled in England and Wales, the court shall have jurisdiction for the purpose of any proceedlngs under Part Vlll of the principal Act, notwithstanding that the l1usband has changed his domicile since fhe deserfion or deporlation. 'l-here was no provision in the English MCA 1937 similar lo section 19(1Xb) of the 111l flnguillan Act, The law in England changed in 1950 with the introduction of the Matrimonial Causes Act l12l 1950 (the 'English MCA 1950'), Section 18of the English MCA 1950 provided, underthe oaption Additional Jurisdiction in proceedings by a wife that: (1) without prejudice to any jurisdiction exercisable by the court apart from this secflon, the court shall by virlue of fhis secfion have jurisdictton to entertain proceedings by a wife in any of the following cases, notwithstanding that the husband is not domiciled in England, fhaf is fo Jary * (a) in the case of any proceedlngs under fhrs Act other than proceedings for fhe presumpfion of death and dlsso/ufion af marriage, if the wife has been deserfed by her husband, or the husband has been depofted from the United Kingdom under any law for the time being in force in relation to the deportation of aliens [to deportation] and the husband was immediately before fhe desedion or deportation domiciled in England; I For the sake of convenicnce I will refer to the laws of England or English law. llVl l-lT-?:244640-l T (b) rn fhe case of proceedings for divorce or nullity of marriage, if the wrfe is resldent in England and has been ordinarily resident there for a period of three years immedrately precedrng the commencement of the proceedings, and the husband ls nof domiciled in any other part of the United Kngdom or in the Channellslands orfhe /s/e of Man. (2) without prejudice to the jurisdiction of the coutt to entedain proceedings under sectlon sixfeen of fhls Acf ln cases where the petitioner is domiciled in England, the court shall by viftue of fhrs secfion have iurisdiction to entertain any such proceedings by a wife if the wife is resldent in England and has been ordinarily resident there for a period of three years immediately preceding the commencement of the proceedings. (3) ln any proceedings in which the court has jurisdiction by virtue of this secflon, the issues shal/be determined in accordance with the law which would be applicable thereto if both parfies were domiciled in England at the time of fhe proceedings,

[13]lhe new grounds introduced by sections 1B(1Xb) and section 18(2) of the English MCA 1950 are somewhat similar, although not identical to, section 19(1Xb) of the Anguillan AcL l{is interesting to note thatsubsections 1B(1Xa) and (b) of the English MCA 1950 are not l14l linked by the word "and", and thatthe body of section'18(1)contains the words ",,, in any qf the following cases ..,", In those circumstances, it is clear in my judgment that the jlrrisdiction arising under section 19(1)(a) is independent of the jurisdiction arising under $ection 19(1Xb) and vice versa, The further jurisdiction arising under section 19(2) is also ipdependent of any jurisdiction arising under section 19(1), 14 A] Irvl fhe law in England changed in 1965 with the introduction of the Matrimonial Causes Act 1950 (the "English MCA 1965"), Section 40 of the English MCA 1965 provided, underthe qaption Additional Jurisdiction in proceedings by a wife that: (1) without prejudice,to any jurisdiction exerclsab/e by the court apaft from fhls secfion, the court shall have iurisdiction to entertain proceedings by a wife, notwithstanding that her husband is not domiciled in England, - (a) in the case of any proceedings under fhis Act (ather than proceedings under section 14 or secftons 23 to 21)[or under the Nullity of Marriage Act 19711, if (i) the wife has been deserted by her husband, or (ti) the husband has been depofted from the United Kingdom under any law for the time being in force relating to deportation, and the husband was immediately before lhe desertion or deportation (b) ln fhe case of proceedings for divorce or nullity of marriage, if - {. Y 0 the wife is residenf in Engtand and has been ordinaitv resident for a period of three years immediatety preceding the commencement of proceedings, and (ii) the husband is not domicited in any other part of the United Kingdom or in the Channells/ands or in the /s/e of Man (2) ly any proceedings in which the coul has jurisdiction by virtue of the foregoing subsecfions fhe issues shalt be deiermrned in accordance wtth the law which would be applicable thereto if bath parties were domiciled in England at the time of the proceedings, I16i Spction 40 of the English MCA is to all extents are purposes the same2 as section 19 of the Anguillan Act, save thatthe word "and" does noliinksubsection sections l(a) and 1(b) aB it does in the Anguillan Act. l17l lhe fqy in England again changed in 1973 with the introduction of the Matrimonial Causes Agt 1973 (the''English MCA 1973 ), Section 46 of the English MCA 1gZ3 provided, under the caption Additional Jurisdiction in proceedings by a wlfe that: (1) Without prejudice to any jurisdiction exercisable by the court apart from this section, the court shall have jurisdiction to entertain proceedings by a wife, notwithstanding that the husband is not domiciled in Englanu dnu Wales, - (a) in the case of any proceedings under this Act (other than proceedings under section 19 or sections 34 to 36), if * (i) the wife has been deserted by her husband, or (ii) the husband has been deported from the United Kingdom under any law for the time being in force relating to deportation and the husband was immediately before the desertion or deportation domiciled in England and Wales (b) in the case of proceedings for divorce or nullity of marriage, if - (i) the wife is resident in England and Wales and has been ordinarily resident there for a period of three years immediate 15' preceding the comnrencement cf the proceedings, and (ii) the husband is not domiciled in any other part of the United Kingdom or in the Channel lslands or the lsle of Man :-r_* ,l *,91:P-":id*llT-the change in the sections numbers refened to in the proviso to section 40(1Xa) of tfl El,glisn;VtcA 1965 and the sections numbers referred to in the proviso ro section l9(l)(a) of rhe A^ng_uillan-,4'ct is material. Nor do I considsr that the aclditional seciion 40(l)OXiD of tne Engtistr UCa (2) In any proceedings in which the court has jurisdiction by virtue of subsection (1) above the issues shall be determined in accordance with the law which would be applicable thereto if both pa,'ties were domiciled in England and Wales at the time of the proceedings,

[18]Spction 46 of the English MCA 1973 is identical to section 40 of the English MCA 1965, save the addition of the words "and Wales" in the first parl of section 46(1). The most significant distinction between section 46 of the English MCA '1973 and section 1g of the Alrguillan Act is the insertion of the word "and"at the end of section 1g('l)(a) of the A[guillan Act. The word does notappear in the English MCA 1965.

[19]Spction 46 of the English MCA 1973 was repealed by section 17(2) of the Engtish Domicile and Matrimonial Proceedings Act. I do not propose to consider the provisions of that Act since it marked a significant change of policy in England and is not similar to section 1g of thle Anguillan Act.

[20]Tfe Anguillan Act was enacted in 1990 and brought into force on 1 july 1990. Given the sirnilarities between the provisions of section 19 of the Anguillan Act and section 46 of the English MCA 1973 it is perhaps reasonable to assume that the draftsman responsible for the Anguillan Act had regard to the provisions of the English MCA 1973 when drafting the Apguillan Act. 1211 I lrave also looked at the laws of a number of other jurisdictions. The matrimonial laws of St. Kitts & Nevis did at one time contain a provision similar to section 19(1)(a) of the Altguillan Act, but have been amended to move to a different regime for establishing jurisdiction for divorce, The laws of St, Kitts & Nevis did not, insofar as I have been able to determine, ever contain a provision similar to section 19(1Xb) of the Anguillan Act, The laws of the British Virgin lslands are also different. I understand that the law in St. Lucia is vleU similar to section 19(1)of the Anguillan Act save that the word "and" does not link the equivalent of sections 19(1)(a) and (b). I22l Tfus, it appears that when enacting the Matrimonial Proceedings and Property Act in Aflguilla, the legislature considered it appropriate to insed the word "and" at the end of stlction 19(1)(a) and thereby link it to section 19(1Xb) The decision made in Anguilla has tiie effect of making section 19 of the Anguillan Act different from the equivalent section in Sl, Lucia and in the now repealed sections of English law. lt is reasonably clear to me that in St. Lucia, and in England under the now repealed law, jurisdiction in the case of ploceedings for divorce could be established under subsections (a) or (b) of the relevant lqgislations, The consequence of the insertion of the word "ancl" at the end of subsection 19(1)(a) of the Anguillan Act makes the position less clear. t23l Tl3e question I have to determine is whether the insertion of the word "and" means that the tWo sections need to be read together, or whether section 19(1Xb) is a separate and distinct glound, There does not appear to be to be any good reason why in Anguilla section 19(1Xb) should not be a separate and distinct ground upon which a wife shouid be able to rely in order to seek a divorce in cases where her husband is not and/or has never been domiciled in the jurisdiction, ln my judgrnent, there would irave been no good reason fQr the Legislature to intend that a wife who falls within 19(1)(b) to also establish the grounds set out in 19(1)(b), Indeed, section 1g(1)(a) is expressed to apply lo ".,, any p4oceedlngs under this Act (other than proceedings under seclion 15 or sections 37 to T a 42) ..,' . Section 19(1)(a) therefore applies, on its face to divorces, unless the word "and" is rqad to impose an additional requirement to establish the ground set out in section 19(1Xb) if she desires to obtain a divorce. I do not think that this was the intention of the Lpgislature when the word "and" was inserted into section 19(1)(a). lt is not clear to me (hy the word was added by the draftsman, but I am satisfied that the addition of such word ulas not intended to conjoin the grounds. It is my judgment that the intention of the Legislature was to introduce grounds for divorce t241 L- 'J i11 Anguilla similar to those that existed in England pursuant to the English MCA 1973. In the circumstances, it is my judgment that the word "and" must be read disjunctively and not cpnjunctively, Alternatively, and to the extent that I am wrong in my view that the word "frnd" must be read conjunctively, I am satisfied that I have the ability to apply a rectifying cpnstruction to the word so as to achieve the intention of the Legislature to create two distinct and unconnected grounds which a wife may establish so as to found the jUrisdiction of the Court to grant a divorce - see Binnion on Statutory Interpretation 5th Ed section 287 at pages 875 to BB9. l25l I am satisfied that the Petitioner in this matter is resident in Anguilla, and that she has ordinarily been resident here for a period of 3 years prior to the presentation of this petition MichaelJ, Fay High Court Judge (Ag),

,,F ANGUILIiA CALIM NO, AMHMT 2011/OOO5 BETWEEN: Appearapces: THE EASTERN CARIBBEAN SUPREME COURT IN THE HIGH COURT OF JUSTICE FRANCISCA JOLLY And SYLVESTER JOLLY Petitioner Respondent Mr, Valencia Hodge for the petitioner The Respondent not being present and not being represented 2011: July 26 JUDGMENT 141 I rJ FAY’ J (Ag)r I will deal with the facts of this matter briefly, The parties were married on 6 August 2005 at Gallows Point, St John in the United States Virgin lslands, After the n;arriage, they lived together in the United States Virgin lslands. However, the rnarrrage was not a success and the parties have lived separalely and apart for a continuous period of more than 5 years since the presentation of lhe petition in this matter on 7 February 2p11, There afe no children of the marriage, The Petitioner lives in Anguilla where she is epployed as a Registered Nurse, Her petition slates that she is domiciled in Anguilla and tt’iat she has habitually been a resident of Anguilla during the year immediately piior to the pfesentation of the petition, I allowed an amendment to the petition to asiert that the Petitioner has been ordinarily resident in Anguilla for more than 3 years. The Respondent is not resident in Anguilla, He has never been ordinarily resident oi domiciled in Anguilla, I heard evidence from the Petitioner and am satisfied that everything that she told me was trle’ ‘Ihe evidence from the Petitioner was sufficient to make out a case for ihis Court to exercise its_jurisdiction under the Matrimonial Proceedings and Property Act to make an Order Nisi if I can be satisfied that there is jurisdiction forihe Courtto make such an order in this matter. LIT-2244640-l t2ll BVI v t3l [Ir’ Hodge, counsel for the,,Petitioner, accepts that the usual jurisdiction of this court in divorce matters arises from the jurisdiciion or tn. husband, Thus in the ordinarv course: (a) if the husband is domiciied in Anguilla, the courl has jurisdiction; (b) if the husband is not domicired in Anguiila, the court does not ordinariry have jurisdiction, The exception tolhe general rule arises in cases to which section 1g of the Matrimonial flroceedings and property Act (‘the Anguillan Act,) applies $ection 19 is captioned “Additronal iurisdiction in proceedings by a wife,, andprovides frillows: as (1) without prejudice to any jurisdiction exercisable by the court apart from this sec/lon, the c9uft shirt have jurisdiction to en:ttirtaii pioceeaings by a wife, notwithstanding that the huiband is not domicited in Anguila * (a) ln the ,case of any proceedings under fhis Acf (other than proceedings under section 15 or sections J7 to 42), lf _ (i) The wife has been deserfed by her husband, or (ii) The husband has been d-eported from Anguila under any Iaw for the time being in force relating to dbportation, And the husband,yas immediatery before fhe deserfio n or deportation domiciled in Anguilla; and (b) ln the case of proceedings for divorce or nuility of marriage, if the wife is resrdenf in Anguilla and has been ordinarity resident there for a period of J years immediatety preceding thetommencement of the proceedings, (2) In any proceedings in which the coutl has jurisdiction by virtue of subsecfion (1), the r’ssues sLtaltbe determinod in accordance with the law which would be appticabre thereto if both partie:s wiri oomicited in Anguilla at the time of the proceedings, In this matter, the Respondent was never domiciled in Anguilla so the petitioner cannol I:ly on section.l9(1)(a). However, the Petitioner has been”oroinaiity resident i; Ang;iib fof a period of more than 3 years immediately precedlng the commencement of the proceedings, In the circumstances, the petitioneifalls within-section lg(1Xbj, Tfle questiorr that I have to consider is whether the use of the word ‘and’, at the end of :mii_eatgn9 !].1 ,19(1)(a) is conjunctive or disjunctive – in ottrer worUs; does the use of that word that in the case of pro.ceedings ior divorce or nullity, the wife has to establish the refruirements of both (a) and (b), or ii it sufficient for her to iirirrialrish (a) or (b). MtJ’ Hodge submitted that the use of the word was disjunctive rather than conjunctive, He was unable to produce any authority to support thai proposition, and informed me that thqre was no authority in ,Anguiila on tire p’ornt. Mr,’ H;Jd;;s not abre to cite any authority from a similar sectionbf the matrimonial laws or rnv oti rijurisdiction, not was he t4l IvJ I6l 17l BVt.”Ln’,2244640_1 g ‘7 IB] aple to cite any authority where the word “and” was used in a disjunctive rather than a crrnjunctive manner, I am satisfied that the word “and” can be used in a disjunctive rather than a conjunctive sense in certain circumstances – see e.g. Re H [1994] Fam 105 In determining how {he word should be construed in section 19, I thought it appropriate to ascertain whether the particular wording of section 19 appeared in the matrimonial law of any other jurisdiction, and if it did so to look at any judicial decisions from such jurisdictions on lhe proper iriterpretation of the section, Unfoftunately, whilst lwas able to find provisions in St. Lucia and in England, that were similar to section 19, the word “and” did not appear ai the send qf the equivalent of subsection (1)(a) in those jurisdictions, lhere were provisions in the laws of England & Walest which resembled section 19 of the A’nguillan Act, although the law changed to a different regime in England in 1979, I propose to analyse the law as I understand it developed in England, Siection 13 Matrimonial Causes Act ‘1937 (the “English MCA 1937”) contained a section Qaptioned Jurisdiction under Part Vll of the Princrpal Act in case of Husband’s change of domicile which is similar to section 19(1)(a) of the Anguillan Act, Section 13 of the English |\tlCA 1937 provided that: Vlhere a wife has been deserted by her husband, or where her husband has been ]epofted from the United Kngdom under any law for the time being in force relating to the Qeportation of aliens, and the husband was immediately before the desertion or cJepoftation domiciled in England and Wales, the court shall have jurisdiction for the purpose of any proceedlngs under Part Vlll of the principal Act, notwithstanding that the l1usband has changed his domicile since fhe deserfion or deporlation. ‘l-here was no provision in the English MCA 1937 similar lo section 19(1Xb) of the flnguillan Act, The law in England changed in 1950 with the introduction of the Matrimonial Causes Act 1950 (the ‘English MCA 1950’), Section 18of the English MCA 1950 provided, underthe oaption Additional Jurisdiction in proceedings by a wife that: (1) without prejudice to any jurisdiction exercisable by the court apart from this secflon, the court shall by virlue of fhis secfion have jurisdictton to entertain proceedings by a wife in any of the following cases, notwithstanding that the husband is not domiciled in England, fhaf is fo Jary * (a) in the case of any proceedlngs under fhrs Act other than proceedings for fhe presumpfion of death and dlsso/ufion af marriage, if the wife has been deserfed by her husband, or the husband has been depofted from the United Kingdom under any law for the time being in force in relation to the deportation of aliens [to deportation] and the husband was immediately before fhe desedion or deportation domiciled in England; I For the sake of convenicnce I will refer to the laws of England or English law. llVl l-lT-?:244640-l tqt tvl l1 0l 111l l12l T

[13]l14l (b) rn fhe case of proceedings for divorce or nullity of marriage, if the wrfe is resldent in England and has been ordinarily resident there for a period of three years immedrately precedrng the commencement of the proceedings, and the husband ls nof domiciled in any other part of the United Kngdom or in the Channellslands orfhe /s/e of Man. (2) without prejudice to the jurisdiction of the coutt to entedain proceedings under sectlon sixfeen of fhls Acf ln cases where the petitioner is domiciled in England, the court shall by viftue of fhrs secfion have iurisdiction to entertain any such proceedings by a wife if the wife is resldent in England and has been ordinarily resident there for a period of three years immediately preceding the commencement of the proceedings. (3) ln any proceedings in which the court has jurisdiction by virtue of this secflon, the issues shal/be determined in accordance with the law which would be applicable thereto if both parfies were domiciled in England at the time of fhe proceedings, lhe new grounds introduced by sections 1B(1Xb) and section 18(2) of the English MCA 1950 are somewhat similar, although not identical to, section 19(1Xb) of the Anguillan AcL l{is interesting to note thatsubsections 1B(1Xa) and (b) of the English MCA 1950 are not linked by the word “and”, and thatthe body of section’18(1)contains the words “,,, in any qf the following cases ..,”, In those circumstances, it is clear in my judgment that the jlrrisdiction arising under section 19(1)(a) is independent of the jurisdiction arising under $ection 19(1Xb) and vice versa, The further jurisdiction arising under section 19(2) is also ipdependent of any jurisdiction arising under section 19(1), fhe law in England changed in 1965 with the introduction of the Matrimonial Causes Act 1950 (the “English MCA 1965”), Section 40 of the English MCA 1965 provided, underthe qaption Additional Jurisdiction in proceedings by a wife that: (1) without prejudice,to any jurisdiction exerclsab/e by the court apaft from fhls secfion, the court shall have iurisdiction to entertain proceedings by a wife, notwithstanding that her husband is not domiciled in England, – (a) in the case of any proceedings under fhis Act (ather than proceedings under section 14 or secftons 23 to 21)[or under the Nullity of Marriage Act 19711, if (i) the wife has been deserted by her husband, or (ti) the husband has been depofted from the United Kingdom under any law for the time being in force relating to deportation, and the husband was immediately before lhe desertion or deportation domiciled in England; (b) ln fhe case of proceedings for divorce or nullity of marriage, if – 14 A] Irvl uvl Ltr-2244640-l {. Y 0 the wife is residenf in Engtand and has been ordinaitv resident for a period of three years immediatety preceding the commencement of proceedings, and (ii) the husband is not domicited in any other part of the United Kingdom or in the Channells/ands or in the /s/e of Man (2) ly any proceedings in which the coul has jurisdiction by virtue of the foregoing subsecfions fhe issues shalt be deiermrned in accordance wtth the law which would be applicable thereto if bath parties were domiciled in England at the time of the proceedings, :-r_* ,l ,91:P-“:id llT-the change in tfl the sections numbers refened to in the proviso to section 40(1Xa) of El,glisn;VtcA 1965 and the sections numbers referred to in the proviso ro section l9(l)(a) of rhe A^ng_uillan-,4’ct is material. Nor do I considsr that the aclditional seciion 40(l)OXiD of tne Engtistr UCa 1965 is reldvant for present purposes, BVr*Ln’-2244640-I I16i Spction 40 of the English MCA is to all extents are purposes the same2 as section 19 of the Anguillan Act, save thatthe word “and” does noliinksubsection sections l(a) and 1(b) aB it does in the Anguillan Act. l17l lhe fqy in England again changed in 1973 with the introduction of the Matrimonial Causes Agt 1973 (the”English MCA 1973 ), Section 46 of the English MCA 1gZ3 provided, under the caption Additional Jurisdiction in proceedings by a wlfe that: (1) Without prejudice to any jurisdiction exercisable by the court apart from this section, the court shall have jurisdiction to entertain proceedings by a wife, notwithstanding that the husband is not domiciled in Englanu dnu Wales, – (a) in the case of any proceedings under this Act (other than proceedings under section 19 or sections 34 to 36), if * (i) the wife has been deserted by her husband, or (ii) the husband has been deported from the United Kingdom under any law for the time being in force relating to deportation and the husband was immediately before the desertion or deportation domiciled in England and Wales (b) in the case of proceedings for divorce or nullity of marriage, if – (i) the wife is resident in England and Wales and has been ordinarily resident there for a period of three years immediate 15′ preceding the comnrencement cf the proceedings, and (ii) the husband is not domiciled in any other part of the United Kingdom or in the Channel lslands or the lsle of Man (2) In any proceedings in which the court has jurisdiction by virtue of subsection (1) above the issues shall be determined in accordance with the law which would be applicable thereto if both pa,’ties were domiciled in England and Wales at the time of the proceedings,

[18]Spction 46 of the English MCA 1973 is identical to section 40 of the English MCA 1965, save the addition of the words "and Wales" in the first parl of section 46(1). The most significant distinction between section 46 of the English MCA '1973 and section 1g of the Alrguillan Act is the insertion of the word “and”at the end of section 1g(‘l)(a) of the A[guillan Act. The word does notappear in the English MCA 1965.

[19]Spction 46 of the English MCA 1973 was repealed by section 17(2) of the Engtish Domicile and Matrimonial Proceedings Act. I do not propose to consider the provisions of that Act since it marked a significant change of policy in England and is not similar to section 1g of thle Anguillan Act.

[20]Tfe Anguillan Act was enacted in 1990 and brought into force on 1 july 1990. Given the sirnilarities between the provisions of section 19 of the Anguillan Act and section 46 of the English MCA 1973 it is perhaps reasonable to assume that the draftsman responsible for the Anguillan Act had regard to the provisions of the English MCA 1973 when drafting the Apguillan Act. 1211 I lrave also looked at the laws of a number of other jurisdictions. The matrimonial laws of St. Kitts & Nevis did at one time contain a provision similar to section 19(1)(a) of the Altguillan Act, but have been amended to move to a different regime for establishing jurisdiction for divorce, The laws of St, Kitts & Nevis did not, insofar as I have been able to determine, ever contain a provision similar to section 19(1Xb) of the Anguillan Act, The laws of the British Virgin lslands are also different. I understand that the law in St. Lucia is vleU similar to section 19(1)of the Anguillan Act save that the word “and” does not link the equivalent of sections 19(1)(a) and (b). I22l Tfus, it appears that when enacting the Matrimonial Proceedings and Property Act in Aflguilla, the legislature considered it appropriate to insed the word “and” at the end of stlction 19(1)(a) and thereby link it to section 19(1Xb) The decision made in Anguilla has tiie effect of making section 19 of the Anguillan Act different from the equivalent section in Sl, Lucia and in the now repealed sections of English law. lt is reasonably clear to me that in St. Lucia, and in England under the now repealed law, jurisdiction in the case of ploceedings for divorce could be established under subsections (a) or (b) of the relevant lqgislations, The consequence of the insertion of the word “ancl” at the end of subsection 19(1)(a) of the Anguillan Act makes the position less clear. t23l Tl3e question I have to determine is whether the insertion of the word “and” means that the tWo sections need to be read together, or whether section 19(1Xb) is a separate and distinct glound, There does not appear to be to be any good reason why in Anguilla section 19(1Xb) should not be a separate and distinct ground upon which a wife shouid be able to rely in order to seek a divorce in cases where her husband is not and/or has never been domiciled in the jurisdiction, ln my judgrnent, there would irave been no good reason fQr the Legislature to intend that a wife who falls within 19(1)(b) to also establish the grounds set out in 19(1)(b), Indeed, section 1g(1)(a) is expressed to apply lo “.,, any p4oceedlngs under this Act (other than proceedings under seclion 15 or sections 37 to BVr r-rT-2?-44640-t T a t241 L- ‘J 42) ..,’ . Section 19(1)(a) therefore applies, on its face to divorces, unless the word “and” is rqad to impose an additional requirement to establish the ground set out in section 19(1Xb) if she desires to obtain a divorce. I do not think that this was the intention of the Lpgislature when the word “and” was inserted into section 19(1)(a). lt is not clear to me (hy the word was added by the draftsman, but I am satisfied that the addition of such word ulas not intended to conjoin the grounds. It is my judgment that the intention of the Legislature was to introduce grounds for divorce i11 Anguilla similar to those that existed in England pursuant to the English MCA 1973. In the circumstances, it is my judgment that the word “and” must be read disjunctively and not cpnjunctively, Alternatively, and to the extent that I am wrong in my view that the word “frnd” must be read conjunctively, I am satisfied that I have the ability to apply a rectifying cpnstruction to the word so as to achieve the intention of the Legislature to create two distinct and unconnected grounds which a wife may establish so as to found the jUrisdiction of the Court to grant a divorce – see Binnion on Statutory Interpretation 5th Ed section 287 at pages 875 to BB9. I am satisfied that the Petitioner in this matter is resident in Anguilla, and that she has ordinarily been resident here for a period of 3 years prior to the presentation of this petition MichaelJ, Fay High Court Judge (Ag), l25l BVr_LtT-2144640-1