HIGH COURT OF LESOTHO
HSIN- TUI PLAINTIFF
YEH, LI-YA DEFENDANT
by the Honourable Mr. Justice T. Monapathi on the 6th day of
action on summons, for an Order of divorce on the ground of the
Defendant's adultery, amongst others, was not opposed. The
who was represented by Mr. Klaas proceeded for a judgment by default.
One of the strange things was an agreement called
of divorce" dated the 15th December 1998, which was about eight
months before the summons were filed. The
Plaintiff also claimed for
forfeiture of the benefits of the marriage, custody of the parties
minor children and costs.
was a Chinese male adult who was resident at Likoting in the district
Butha-Buthe. Defendant was a female adult staying at Taiwan Flats,
Maseru West. The parties had been ordinary residents in Lesotho
1987. This period was more than two years. I did not accept Mr.
Klaas' contention that this period thus gave this Court the
jurisdiction, by virtue of Matrimonial Causes Act No. 21 of 1978.
This Court had jurisdiction by virtue of the fact that
resided in Lesotho at the material time and to date.
parties were married in accordance with Chines rites at Pu-zi Town in
the Republic of Taiwan on the 20th November 1976 and the
still subsisted. The marriage was registered in accordance with the
parties law, of China. There were three (3) minor
children born of
the marriage and the children were in custody of the Plaintiff.
Plaintiff said further in his summons that the Defendant had with
intention to terminate marital relationship between the parties
in adultery (as man and wife) with a man called Chen at Taiwan Flats.
The Plaintiff also testified that he had not condoned
I did not
view the said agreement of divorce as collusion of any kind but I
took it as corroborating the fact of serious discord
in the parties'
family and probably existence of the adultery. The agreement also
spoke about "guardianship" of the three
sons of the
marriage being left with the Plaintiff. And furthermore it recorded
that "all the collective properties from this
were left with the Plaintiff. And finally the "wife would not
require any alimony after the divorce".
That was what was agreed
as the matter was not opposed, after good service on the Defendant, I
reached a conclusion that according to our law a
claim for divorce
have been successfully proved. But there was one hitch which I said
Plaintiff Counsel should advice me on. It was whether
law was the law of Lesotho or the law of the Plaintiff's domicile
which was that of Taiwan. I agreed that it was
the law of Taiwan
which was applicable if it was proved. That law was the law of the
parties domicile and equally importantly the
lex loci celebrations.
Counsel made submissions later on the law of Taiwan.
of Taiwan has been produced to the Court which was translated (the
relevant parts) as follows:
1049 : Both man and wife (on) agree(ing) to have divorce, can do so.
1050 : Both man and wife (on) agree(ing) to have divorce (which)
should have in it written down on paper with more than two
witness(es) and to be registered in the Department of Household
1052 : In the underneath condition; any side is entitle(d) to as for
(violation) of the crime of adultery.
man or wife who can not bear the maltreatment of the opposite party.
direct relative of either party is the victim of the maltreatment of
the concerned party
man or wife is maliciously abandoned". (My underlining)
did not accept the above as adequate proof of that foreign law. It is
because: "The Courts do not ordinarily take
judicial notice of
foreign law, which must be proved by evidence of an expert witness."
See SEROBANYANE v SEROBANYANE AND
ANOTHER CIV/APN/290/91, Kheola J
(as he then was) 25 September 1991. As I said before the claim would
have succeeded according
to the laws of Lesotho. Moreover:
"It is trite law that in the absence of adequate evidence or the
possibility of judicial notice, foreign law is presumed to
same as local law as a ground for divorce. Rogaly v General Imports
(Pty) Ltd 1948(1) SA 1216)." See SEROBANYANE case
accordingly granted a decree of divorce. In addition I awarded
custody of the minor children to the Plaintiff as prayed and
as an Order of Court all other aspects over which the
parties agreed which included the issue of property.
Plaintiff : Mr. Haas
Defendant : No Appearance
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