IN THE HIGH COURT OF LESOTHO In the matter
WENG, HSIN- TUI PLAINTIFF
YEH, LI-YA DEFENDANT
Delivered by the Honourable Mr. Justice T. Monapathi on
the 6th day of September 1999
This action on summons, for an Order of divorce on the
ground of the Defendant's adultery, amongst others, was not opposed.
who was represented by Mr. Klaas proceeded for a
judgment by default. One of the strange things was an agreement
called an "agreement
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
the marriage, custody of the parties minor children and costs.
Plaintiff was a Chinese male adult who was resident at
Likoting in the district
of Butha-Buthe. Defendant was a female adult staying at
Taiwan Flats, Maseru West. The parties had been ordinary residents in
since 1987. This period was more than two years. I did not
accept Mr. Klaas' contention that this period thus gave this Court
necessary jurisdiction, by virtue of Matrimonial Causes Act No.
21 of 1978. This Court had jurisdiction by virtue of the fact that
the parties resided in Lesotho at the material time and to date.
The parties were married in accordance with Chines rites
at Pu-zi Town in the Republic of Taiwan on the 20th
November 1976 and the marriage 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.
The Plaintiff said further in his summons that the
Defendant had with intention to terminate marital relationship
between the parties
lived in adultery (as man and wife) with a man
called Chen at Taiwan Flats. The Plaintiff also testified that he had
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
sons of the marriage being left with the Plaintiff. And
furthermore it recorded that "all the collective properties from
marriage" were left with the Plaintiff. And finally the
"wife would not require any alimony after the divorce".
was what was agreed upon.
Inasmuch as the matter was not opposed, after good
service on the Defendant, I reached a conclusion that according to
our law a claim
would have been successfully proved. But there was one
hitch which I said Plaintiff Counsel should advice me on. It was
applicable law was the law of Lesotho or the law of the
Plaintiff's domicile which was that of Taiwan. I agreed that it was
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.
The law of Taiwan has been produced to the Court which
was translated (the relevant parts) as follows:
" Clause 1049 : Both man and wife (on) agree(ing)
to have divorce, can do so.
Clause 1050 : Both man and wife (on) agree(ing) to have
divorce (which) should have in it written down on paper with more
witness(es) and to be registered in the Department of
Clause 1052 : In the underneath condition; any side is
entitle(d) to as for divorce:
Voliater (violation) of the crime of adultery.
Either man or wife who can not bear the maltreatment of
the opposite party.
The direct relative of either party is the victim of
the maltreatment of
4 the concerned party
(5) Either man or wife is maliciously abandoned".
I however did not accept the above as adequate proof of
that foreign law. It is because: "The Courts do not ordinarily
notice of foreign law, which must be proved by evidence
of an expert witness." See SEROBANYANE v SEROBANYANE AND ANOTHER
Kheola J (as he then was) 25 September 1991. As I
said before the claim would have succeeded according to the laws of
"It is trite law that in the absence of adequate
evidence or the possibility of judicial notice, foreign law is
presumed to be
the same as local law as a ground for divorce. Rogaly
v General Imports (Pty) Ltd 1948(1) SA 1216)." See SEROBANYANE
at page 5.
I 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.
T. MONAPATHI JUDGE
6th September, 1999 For the Plaintiff :
Mr. Haas For the Defendant : No Appearance
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