When a marriage has been solemnized in the Virgin Islands, an action may be maintained to declare it void if the plaintiff is an inhabitant of the Virgin Islands at the commencement of the action If the marriage has not been solemnized in the Virgin Islands, such action can only be maintained when the plaintiff has been an inhabitant thereof for six weeks prior to the commencement of the action.

1. INJURED PARTY.

This is the re-edited version of Injured Party Provision in the Virgin Islands Divorce Law (Act Leg. Assem. app. Dec. 29, 1944, § 7), states that a divorce may only be granted at instance if injured party did not require plaintiff to prove himself innocent of any conduct, which might have been grounds for divorce at the instance of the defendant, but only that he had been injured by existence of the ground which he asserts. Burch v. Burch, 2 V.I. 559, 195 F.2d 799 (3d Cir. 1952).

2. CRUEL AND INHUMAN TREATMENT.
Where Virgin Islands Divorce Law (Act Leg. Assem. app. Dec. 29, 1944, § 7(5)) fixed “cruel and inhuman treatment calculated to impair health or endanger life” as ground for divorce, words “calculated to” meant “likely to” rather than “intended to”. Burch v. Burch, 2 V.I. 559, 195 F.2d 799 (3d Cir. 1952)

Where defendant, without provocation, was guilty of such cruel and inhuman treatment of his wife as was calculated to impair her health, a divorce was granted. Gordon v. Gordon, 1 V.I. 15 (D.C.V.I. 1921)

3. INCOMPATIBILITY OF TEMPERAMENT.
Common sense reading of law providing for divorce on grounds of breakdown of marriage causing destruction of legitimate objects of matrimony, and no reasonable likelihood of preservation of the marriage, makes it clear that the old concept, that if the parties are so mismated that their marriage has in fact ended as the result of their hopeless disagreement and discord, the court should be empowered to terminate the marriage as a matter of law, a concept applied under prior incompatibility of temperament ground for divorce, is continued. Hendry v. Hendry, 14 V.I. 610 (Terr. Ct. St. C. 1978)
Divorce absolute would be granted to both plaintiff wife and counterclaiming husband, each of which grounded their claim upon incompatibility, where incompatibility was clear, and clearly irreconcilable, and where there was no evidence that only one of them was at fault. Pena v. Pena, 8 V.I. 612 (D.C.V.I. 1971)
Conflicts in personalities and dispositions between husband and wife so deep as to be irreconcilable and to render it impossible for parties to continue a normal marital relationship with each other were sufficient to show incompatibility of temperament between the spouses to entitle husband to a divorce, despite relationship of husband with another woman. Colby v. Colby, 6 V.I. 362, 283 F. Supp. 150 (D.C.V.I. 1968)
Where incompatibility of temperament complained of was due to wife’s conduct in objecting to husband’s relationship with another woman, a sufficient case of incompatibility was not established. Colby v. Colby, 6 V.I. 362, 283 F. Supp. 150 (D.C.V.I. 1968); Schlesinger v. Schlesinger, 6 V.I. 671, 399 F.2d 7 (3d Cir. 1968)
“Combatability” is not per se incompatibility. Schlesinger v. Schlesinger, 6 V.I. 671, 399 F.2d 7 (3d Cir. 1968)
In determining whether a married pair are so incompatible as to justify a divorce on that ground the inquiry is not as to the fault of either or both but rather as to whether their marital barque has so far foundered upon the rocks of disharmony and discord as to be beyond the possibility of salvage. Schlesinger v. Schlesinger, 6 V.I. 671, 399 F.2d 7 (3d Cir. 1968)
In order to establish incompatibility of temperament under this section quarrels between spouses must establish that there existed a state of incompatibility because of the basic unsuitability of the spouses for each other. Schlesinger v. Schlesinger, 6 V.I. 671, 399 F.2d 7 (3d Cir. 1968)
It is to the question whether the marriage is in fact ended because of the basic unsuitability of the spouses for each other, as shown by the events of their married life, rather than to the causes of the state in which they find themselves that the court must direct its inquiry in determining whether incompatibility of temperament exists. Schlesinger v. Schlesinger, 6 V.I. 671, 399 F.2d 7 (3d Cir. 1968)
To obtain a decree of divorce in the Virgin Islands on the ground of incompatibility of temperament it need only appear that, for whatever reason, there exists between the parties an irreconcilable conflict in personality or disposition which renders the maintenance of a normal marital relationship impossible. Del Peschio v. Del Peschio, 5 V.I. 461, 356 F.2d 402 (3d Cir. 1966), cert. denied 385 U.S. 886, 87 S.Ct. 181
It is the fact that the marriage has in truth ended because of the hopeless disagreement and discord of the parties which is the determining factor in a case of incompatibility of temperament rather than the causes of the unhappy state. Del Peschio v. Del Peschio, 5 V.I. 461, 356 F.2d 402 (3d Cir. 1966), cert. denied 385 U.S. 886, 87 S.Ct. 181
In determining whether a married pair are so incompatible as to justify divorce the inquiry is not to the fault of either but whether the marriage may be saved. Del Peschio v. Del Peschio, 5 V.I. 461, 356 F.2d 402 (3d Cir. 1966), cert. denied 385 U.S. 886, 87 S.Ct. 181
Besides considering whether the best interests of the parties, and of the public will be served by granting a divorce, the court must also weigh the possibilities of personal adjustment, and reconciliation and the restoration of a normal marital status in determining whether to exercise its discretionary power to grant a divorce upon the ground of incompatibility. Shearer v. Shearer, 5 V.I. 439, 356 F.2d 391 (3d Cir. 1965), cert. denied, 384 U.S. 940, 86 S.Ct. 1463, 16 L. Ed. 2d 540 (1966)
The incompatibility of temperament contemplated by this section involves a conflict of personalities and dispositions so deep as to destroy the legitimate ends of matrimony and the possibility of reconciliation. Shearer v. Shearer, 5 V.I. 439, 356 F.2d 391 (3d Cir. 1965), cert. denied, 384 U.S. 940, 86 S.Ct. 1463, 16 L. Ed. 2d 540 (1966)
Evidence, which showed that wife objected to husband’s actions involving another woman, was not sufficient to establish incompatibility of temperament in divorce action by husband. Sachs v. Sachs, 3 V.I. 264, 155 F. Supp. 860 (D.C.V.I. 1957), aff’d, 3d Cir. 1959, 4 V.I. 102, 265 F.2d 31
Under provision of Virgin Islands Divorce Law (Act Leg. Assem. app. Dec. 29, 1944) cruel treatment of wife by husband did not bar his obtaining divorce on ground of incompatibility of temperament. Burch v. Burch, 2 V.I. 559, 195 F.2d 799 (3d Cir. 1952)

While incompatibility of temperament in the Virgin Islands Divorce Law (Act Leg. Assem. app. Dec. 29, 1944, § 7) did not refer to those petty quarrels and minor bickerings which were but the evidence of that frailty which all humanity was heir to, it unquestionably did refer to conflicts in personalities and dispositions so deep as to be irreconcilable and to render it impossible for the parties to continue a normal marital relationship with each other. Burch v. Burch, 2 V.I. 559, 195 F.2d 799 (3d Cir. 1952)
Under provision of Virgin Islands Divorce Law (Act Leg. Assem. app. Dec. 29, 1944, § 7) whereby incompatibility of temperament was ground for divorce, plaintiff could assert that he was party injured by incompatibility of temperament in which he himself participated, since incompatibility of temperament necessarily involves both parties. Burch v. Burch, 2 V.I. 559, 195 F.2d 799 (3d Cir. 1952)
In an action for divorce under the divorce law of the Municipality of St. Thomas and St. John on grounds of incompatibility of temperament, plaintiff was required to show that he was not in fault and that he had been injured by the resulting condition existing between the parties. Quinones v. Castaigns, 2 V.I. 134 (D.C.V.I. 1950)
Although spouses were possessed of strong and unyielding wills, high tempers and assertive personalities, and, therefore, incompatible, plaintiff shown to be at fault could not obtain divorce on ground of incompatibility of temperament. Christian v. Christian, Civ. No. 48-1937 (D.C.V.I. Nov. 29, 1937)

Party to divorce action who caused separation was precluded by that fault from subsequently obtaining a divorce on the ground of incompatibility of temperament. Nielsen v. Nielsen, 1 V.I. 391 (D.C.V.I. 1937).

4. IRRECONCILABLE BREAKDOWN.

Where wife, following two years of tolerable difficulties in marriage, developed extra-marital relationship with another man and her emotional attachment to her husband declined, husband later had a phone call from a friend to effect friend had seen wife in Miami with another man when wife was supposed to be in New Jersey visiting her mother, domestic peace ended and wife left the home, and among many other incidents husband struck wife in front of their children and husband saw wife leave motel room shortly after her man friend had left it, evidence of irreconcilable breakdown of marriage was sufficient and divorce could be granted. Hodge v. Hodge, 13 V.I. 561 (D.C.V.I. 1977)

5. MISCONDUCT OF PLAINTIFF.

The fact that plaintiff’s conduct and disposition may have contributed to the incompatible state of the parties does not defeat his suit, although misconduct on his part may be considered by the court with all other evidence in determining whether the best interests of the parties and public will be served by granting a divorce. Del Peschio v. Del Peschio, 5 V.I. 461, 356 F.2d 402 (3d Cir. 1966), cert. denied, 385 U.S. 886, 87 S.Ct. 181
Evidence of misconduct on part of husband could be considered by District Court of Virgin Islands along with all the other evidence in determining whether, in the discretion of the court, the best interests of parties and of public would be served by granting of divorce, where Virgin Islands Divorce Law (Act Leg. Assem. app. Dec. 29, 1944) lodged in the court discretion to grant or deny a divorce. Burch v. Burch, 2 V.I. 559, 195 F.2d 799 (3d Cir. 1952)

6. QUESTIONS FOR JURY.

Where procedural law of the Virgin Islands (1921 Codes, Title V, ch. 13, § 1; Title III, ch. 38, § 1; Divorce Law of Virgin Islands, app. Dec. 29, 1944, § 1) applicable to actions for divorce, provided that jury could be employed only to make findings as to particular facts, reference of all issues in divorce case to jury was unwarranted and verdict rendered by jury was without legal effect. Burch v. Burch, 2 V.I. 559, 195 F.2d 799 (3d Cir. 1952)

7. EXECUTIVE ACTION.

Divorce is strictly a civil matter in which the Executive may take no official action other than that which may be ordered by the court., 1 V.I.Op.A.G. 327

8. RES JUDICATA.

Where under New Jersey law quantum of proof differed from Virgin Islands divorce law on ground of incompatibility, prior action brought by the same parties on the same ground in New Jersey which was dismissed with prejudice was not res judicata to action brought in the Virgin Islands. Del Peschio v. Del Peschio, 5 V.I. 461, 356 F.2d 402 (3d Cir. 1966), certiorari denied 385 U.S. 886, 87 S.Ct. 181.
9. DEFENSES.

The defense of recrimination is the doctrine that plaintiff must show himself innocent of any substantial wrongdoing before he is entitled to a divorce. Colby v. Colby, 6 V.I. 362, 283 F. Supp. 150 (D.C.V.I. 1968)
Defense of recrimination has no application in the Virgin Islands in cases involving incompatibility of temperament as grounds for divorce. Colby v. Colby, 6 V.I. 362, 283 F. Supp. 150 (D.C.V.I. 1968)
Evidence disclosed that the quarrels of the parties did not result in creation of a status of incompatibility of temperament within the meaning and contemplation of this section. Schlesinger v. Schlesinger, 6 V.I. 671, 399 F.2d 7 (3d Cir. 1968)

Neither the defense of recrimination nor the doctrine of comparative rectitude is available to bar the granting of a divorce upon the ground of incompatibility of temperament. Shearer v. Shearer, 5 V.I. 439, 356 F.2d 391 (3d Cir. 1965), cert. denied, 384 U.S. 940, 86 S.Ct. 1463, 16 L. Ed. 2d 540 (1966).

10. EVIDENCE.

Regarding issue whether there remains no reasonable likelihood that a marriage can be preserved, which, with a breakdown of the marriage to extent that the legitimate objects of matrimony have been destroyed, allows granting of a divorce, the marriage as a whole must be considered and the court must be satisfied that the parties can no longer live together because of difficulties so substantial that no reasonable efforts could reconcile them; and all the surrounding facts must be considered, the subjective state of mind of the parties toward the relationship and any observable acts being relevant upon the issue. Hendry v. Hendry, 14 V.I. 610 (Terr. Ct. St. C. 1978)
If the court is to make a determination which is just to the parties and to society as to the existence of an irremediable incompatibility, as this section contemplates, the evidence should provide it with a full picture of the personal ties and dispositions of the spouses and of their attitude and conduct toward each other. Shearer v. Shearer, 5 V.I. 439, 356 F.2d 391 (3d Cir. 1965), cert. denied, 384 U.S. 940, 86 S. Ct. 1463, 16 L. Ed. 2d 540 (1966)
It is important for the court to be informed of the cause of the incompatibility which the evidence is alleged to show and whether it is the result of volition or of a predisposition or is congenital. Shearer v. Shearer, 5 V.I. 439, 356 F.2d 391 (3d Cir. 1965), cert. denied, 384 U.S. 940, 86 S. Ct. 1463, 16 L. Ed. 2d 540 (1966)
Evidence tending to show that when plaintiff was faced with serious financial reverses, he took to drink from which he has now freed himself, and that the defendant is willing to resume the marital relationship. But plaintiff is, for some undisclosed reason, reluctant to do so, and is not sufficient to establish incompatibility of temperament in an action for divorce. Shearer v. Shearer, 5 V.I. 439, 356 F.2d 391 (3d Cir. 1965), cert. denied, 384 U.S. 940, 86 S. Ct. 1463, 16 L. Ed. 2d 540 (1966)

Where plaintiff’s husband, was faced with serious financial reverses, he took to drink from which he subsequently freed himself but was unwilling to resume the marital relationship, Although the defendant’s wife was willing, there was no irremediable disharmony in the life of the parties which would sustain a divorce on the ground of incompatibility. Shearer v. Shearer, 5 V.I. 439, 356 F.2d 391 (3d Cir. 1965), cert. denied, 384 U.S. 940, 86 S. Ct. 1463, 16 L. Ed. 2d 540 (1966)

11. INSUFFICIENT GROUNDS.

Divorce would not be granted where it was not proven that to any substantial extent the legitimate objects of matrimony were destroyed or that there was no reasonable likelihood the marriage could be preserved: It being readily apparent and evidenced in the testimony and demeanor of the parties at trial that there existed a strong, continuing sub-current of mutual love, affection, respect, understanding, sexual fulfillment, concern, emotional support and involvement in the nurture and happiness of parties’ children. Hendry v. Hendry, 14 V.I. 610 (Terr. Ct. St. C. 1978)
Mere absence of one of the parties from the home is no bar to denial of a divorce, though it is normally strong evidence that the marriage has broken down, and where husband had been absent for 6-12 months but had a continued close interaction in every aspect of home and married life, the court was convinced that he had not irrevocably decided the marriage was at an end, with no possibility of reconciliation. Hendry v. Hendry, 14 V.I. 610 (Terr. Ct. St. C. 1978)
Court will not put the force of law on the fleeting passion of a middle-aged man to again “be free,” and grant him a divorce, when his every action evidences his continuing love and dependency on his home and his relationship there with his wife. Hendry v. Hendry, 14 V.I. 610 (Terr. Ct. St. C. 1978)

12. SUFFICIENT GROUNDS.

Legitimate objects of matrimony were destroyed, no reasonable likelihood of preservation of the marriage remained, and divorce would be granted, where marriage had been deteriorating for years, during which arguing had increased to point where husband had frequently exercised violence upon wife and police were called on numerous occasions to preserve the peace, several reconciliation efforts had failed, the couple had lost all love and respect for each other, and they had not cohabited as husband and wife for months and each was determined to end the union. Kirby v. Kirby, 14 V.I. 601 (Terr. Ct. St. C. 1978)

13. BURDEN OF PROOF.

One suing for divorce has burden of proof as to statutory requisites to grant of divorce. Hendry v. Hendry, 14 V.I. 610 (Terr. Ct. St. C. 1978)

14. JUDICIAL DISCRETION.

This section does not deprive court of power to find facts and determine law, or grant litigants such power by allowing a departure from the household to effect a termination in fact of the marriage. Hendry v. Hendry, 14 V.I. 610 (Terr. Ct. St. C. 1978)
Whether a marriage is irretrievably broken is left to trial court’s discretion based upon the evidence adduced in the case at hand, and court will not attempt to set forth specific guidelines for identifiable legitimate objects of matrimony which must be destroyed to constitute a breakdown of a marriage, for the central inquiry is subjective, not objective, and observable acts and occurrences in the marriage and the causes of the state in which the parties find themselves are not as important or controlling as the question whether the marriage is in fact ended because of the basic unsuitability of the spouses for each other and their state of mind toward the relationship. Hendry v. Hendry, 14 V.I. 610 (Terr. Ct. St. C. 1978)
Cited. Cited in Pfister v. Pfister, 23 V.I. 3 (Terr. Ct. St. T. and St. J. 1987).