Tuvalu Island Courts Bench Book - Federal Court of Australia

3.4 Hearing
In order to proceed with a divorce, the petitioner at least must be present. As the Chief Justice
stated in Kesia Martin v Graeme Leigh Martin Case No. 2/03:
“there is only one method of proof permitted in any matrimonial case and that is by
evidence. Where the parties do not appear, there can be no evidence. A petition alone is
not proof, it is simply a statement of the case the petitioner intends to prove.”
Even where the petitioner is present, the Court cannot hear the case unless the respondent is
present or a proper affidavit of service has been filed.
Divorce proceedings in the Island Court must be by consent, so the documents should be
checked for the consent of the parties to the proceedings.
• Where one of the parties is overseas, consent must be in writing. This has to be done
after proceedings are begun and there should be a proof of affidavit of service (this
confirms that the party is aware of, and agrees to the divorce petition and its terms).
• If a letter of consent is written before the proceedings, the other party must still be served
and acknowledge that they have received the papers.
• The consent must be in writing where the other party is absent from the Court.
If there is a dispute, the Island Court cannot hear the matter and must refer the matter to the
Magistrate’ Court.
The Court shall hear evidence on oath as to the grounds for the divorce.
Even though evidence may be presented to show the breakdown of the marriage, this does not
relieve the Court from its duty to determine whether the marriage has completely broken down.
The Court must weigh all the evidence, on the balance of probabilities, in order to determine
whether the marriage has broken down and a divorce order should be granted. This means that
you must find that it is more probable than not that the fact exists.
If the parties need time to consider matters, then an adjournment may be granted. In this case, a
hearing date will need to be set: r17(2) Matrimonial Causes (Magistrates’ Court) Rules (Cap
21).
Reconciliation
When proceedings are brought on the basis of the complete breakdown of the marriage, the
Court must, prior to giving judgment, adjourn the proceedings for at least three months, so that
the parties can settle their differences. Then the Court may give judgment.
Tuvalu Island Courts Bench Book June 2004