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Civil Action No. 1993-059

     This court is in receipt of Defendant's Motion for and Order to Show Cause Why Action Should not be Dismissed dated January 24, 1995, and Plaintiff's Answer dated March 3, 1995. On March 29, 1995, an evidentiary hearing was held where testimony and argument were presented before this court on the issue of whether or not the customary marriage between Defendant and her husband, the late Jay Faimaw, has been dissolved.

     In arguing against the Plaintiff's claim that the "traditional marital rights and privileges associated with customary marriage between Defendant and the late Jay Faimaw" have been dissolved, Defendant asserts at pp. 1-2 of her motion that this claim has several flaws. First, it fails to establish the legal validity of the alleged severance of the customary marital rights . . . . Second, this alleged severance of marital rights . . . took place without the consent of defendant. Third, this alleged severance of marital rights was done without good cause. Finally, defendant's customary marriage to the late Faimaw throughout, its term had the blessings of the families, the community, and was later confirmed by an order this court.

Testimony at the hearing on March 29, 1995, included the following points:

     1.  For at least one year following the passing of Defendant's husband, Defendant and Plaintiff were in good terms with each other as members of a family or Tabinaw under Yapese customs and traditions.1

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     2.  Plaintiff is one of the surviving Pilibthir of Defendant's late husband's Tabinaw.  
     3.  About a year after the passing of Defendant's husband, problems, the nature of which were not made known to this court, developed between Defendant and Plaintiff in that they suddenly were not on good terms with each other. Defendant testified that she has siner"fne nothing by way of fulfilling or carrying out any of her customary marital duties and responsibilities to the family of her late husband, Jay Faimaw.

     4.  Plaintiff testified that she at one point contacted Defendant's father and notified him that she had severed the customary marriage between Defendant and the late Jay Faimaw. Defendant testified that she was never told by her father or anybody else that her customary marriage with the late Jay Faimaw had been severed. This was further, echoed in the Defendant's testimony that her father to date still has in his possession the marital Yar (shell money) presented to him by the Defendant's husband at the initial stage in the legitimization of their customary marriage.2

     The court first notes that among the points that Defendant makes is that the marriage was previously recognized by the court; and that Plaintiff has no standing to bring this action. As to this latter point, there is no question but that the Plaintiff is the Pilibthir ko Tabinaw, and as such she has responsibilities to the Tabinaw imposed by custom and tradition. The court concludes that the bringing of this action is properly one of those duties and responsibilities.
     Defendant notes that the customary marriage was previously given court recognition, the inference being that that determination should control. However, the events that gave rise to the severance occurred after the confirmation of the customary marriage; therefore, it is rightly the province of this court to make a finding with respect to this post confirmation, disputed severance.  

     In a marriage like the one at issue here where the husband has passed away, his widow under customary laws remains married to him. This marital relationship may continue for the duration of the widow's life, or until it is severed by either the widow herself; by her deceased husband's

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family; or by mutual agreement between the widow and her deceased husband's family. In thin case it appears from the testimony presented by both parties that the marital relationship between Defendant and the late Jay Faimaw was indeed severed by the late Jay Faimaw's Tabinaw, or particularly by Plaintiff who, as stated earlier, is a Pilibthirko Tabinaw of Defendant's husband. The question of whose fault it was that caused the familial dispute or problems between Defendant and Plaintiff in the beginning, which presumably led to Plaintiff's severance of the marital relationship between Defendant and the late Jay Faimaw was not made clear in the testimonies, and even if the reason had been specified, it would not carry much weight, since that marital relationship can be severed by either Defendant herself (the widow) or by her late husband's Tabinaw without the consent of either.

     In view of the foregoing, this court finds that the customary marriage and all other marital relationships associated therewith between Defendant and the late Jay Faimaw was appropriately dissolved by Plaintiff.

SO ORDERED THIS 19th day of May, 1995.
                                        Constantine Yinug
                                        Chief Justice

Filed this 22nd day of May, 1995.

Clerk of Court, Yap


1 This would indicate that the customary marriage between defendant and her husband and all the rights and privileges associated therewith had not been severed of dissolved. This is supported by facts known to this court that Plaintiff did support Defendant in the court's confirmation of her customary marriage with her late husband.  Back to opinion

2 The returning of the marital Yar by the wife's family to the husbands family is viewed to be a confirmation that the customary marital relationship between the two is dissolved. Back to opinion
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