Ntn v. Hss

FCMC 8817/2014

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES NO 8817 OF 2014

________________________

________________________

________________________

JUDGMENT
(Defended Petition)
________________________

Introduction

1.This is a defended divorce.   The wife seeks a decree based on the husband’s unreasonable behaviour, which in turn the husband resists.

Background

2.The parties married on XX January 2007 and the only child of the family, a boy, was born on XX May 2011.  He is now 4 years of age and he attends a local kindergarten. By all accounts, the marriage has been a troubled one for some time, with the wife accusing the husband of neglect and ongoing abuse.  The wife left the matrimonial home in February 2013 and the parties have lived separate and apart from each other since that time.

3.The husband, for his part, makes a number of allegations against the wife.  He filed an answer on 17 July 2014 but he did not cross-petition.  He has also had some mental health issues, which led to the court requesting an Official Solicitor’s report. On 29 October 2014, the Official Solicitor concluded in a letter as follows:

“The respondent is capable of understanding the divorce proceedings, including questions relating to the custody of children and financial arrangements on divorce. He is able to express his views and give instructions to his lawyer in the divorce proceedings. In summary, the respondent is diagnosed to have low average IQ. His mixed anxiety/depressive disorder is currently in remission. He is mentally fit to handle divorce proceedings.”

4.There is only one issue to determine in this case, namely:-

On the balance of probabilities, has the husband behaved in such a way that the wife cannot reasonably be expected to live with him, and, consequently, can the parties’ marriage be said to have broken down irretrievably?

The law

5.Insofar as the law is concerned, there is only one ground for divorce in Hong Kong, namely, that the marriage has broken down irretrievably.  This can be proved by one or more of the five facts found in Section 11A of the Matrimonial Causes Ordinance, Cap 179.  It is also possible to apply for a divorce jointly based on one year’s separation with consent.

6.When it is clear that a marriage has broken down irretrievably, the parties are encouraged by the courts to adopt a sensible and pragmatic attitude, with a view to dissolving their marriage as quickly and as painlessly as possible. Where the particulars pleaded are sufficient to enable a decree to be granted, then the court will do so without investigating into any of the other allegations made.  This is particularly so where separation is pleaded in addition to a fault-based ground, but the same principle applies where there are multiple allegations made in respect of fault.  It is sufficient to investigate only to the extent that fault is proved. (See Grenfell v Grenfell [1978] Fam 128). Rayden puts it thus:

Facts sufficient on which to grant a decree

Paragraph 9.65.  Where on the face of the pleadings there are facts sufficient to enable the court to grant a decree of dissolution, the court has firmly declared that it is in general wrong to permit a party to have other allegations investigated.  In particular, where on the face of pleadings, five years’ [in Hong Kong two years’] separation is alleged by a respondent and admitted by the petitioner who has alleged behaviour in the petition, there is no point in conducting an inquiry into behaviour merely to satisfy feelings, however genuinely and sincerely held by the petitioner.

7.In this case, it does not appear to be disputed that the parties have been separated for over two years.  However, this was not originally pleaded in the petition, which relies on fairly mild unreasonable behaviour particulars. The petition is dated 5 July 2014.  At that stage the parties had been separated for over one year.  However, the respondent had made it clear throughout that he would not consent to a divorce.  Consequently, it was not possible to proceed on the basis of one year’s separation with consent.

The Ground of “unreasonable behaviour”

8.Section 11A(2)(b) of the Matrimonial Causes Ordinance, Cap 179, states that:

“11A. Proof of ground for petition

(2) The court hearing a petition for divorce shall not hold the marriage to have broken down irretrievably unless the petitioner satisfies the court of one or more of the following facts -

…..

(b) that the respondent has behaved in such a way that the petitioner cannot reasonably be expected to live with the respondent.”

9.The appropriate test, as referred to the solicitor for the wife, was originally formulated in the case of Livingstone-Stallard.  In that case, the judge posed the following question: -

Would any right-thinking person come to the conclusion that this husband” has behaved in such a way that this wife cannot reasonably be expected to live with him, taking into account the whole of the circumstances and the character and the personalities of the parties.

10.It is then both a subjective and an objective test.  The issue is not so much whether one spouse’s actions are unreasonable per se, although that may be the case, but rather whether this particular spouse (here, the wife) found the other spouse’s actions unreasonable.  The court will consider this and will then go on to determine whether or not the wife can be reasonably expected to live with the husband.  This test has been approved in a number of cases, including O’Neill v O’Neill 1975 3 All ER 289, which was then cited with approval in the Hong Kong case Lindsay v Lindsay FCMC1569/1982. 

Discussion

Has then the husband behaved in such a way that the wife cannot reasonably be expected to live with him?

11.In this instance, the wife pleaded as follows in her particulars in the divorce petition. 

(1) After they got married, the petitioner discovered that she and the respondent have nothing in common.  They have very different personalities.

(2) He continuously used his physical violence against the petitioner.  He continually scolds the petitioner and threatens her.

(3) He refuses to pay maintenance for her and the child of the family.  He refuses to purchase any groceries for the home.  He refuses to accept any responsibilities whatsoever. 

(4) Due to the respondent’s unreasonable conduct, the petitioner feels sad, lonely and finds the situation intolerable.

12.The wife expanded on these particulars in the witness-box.  She said that the husband had assaulted her on several occasions, including an incident in February/March 2014, when he had followed her and then slapped her twice on the face, leading to the police being called.  There were other incidences of abusive behaviour which led to police intervention. In addition, she said that the husband refused to find a job and that he did not contribute towards the child’s maintenance. She complained in particular that the husband had initially paid $500 to enrol the child in a kindergarten and that the husband had later changed his mind and recovered his $500 without telling her.  This led to the child not being admitted to the original kindergarten of choice.  He now attends a kindergarten that is 45 minutes away from home.  The wife was perhaps understandably very upset about this incident.

13.The husband’s response was not terribly coherent.  All in all, I accept what the wife has to say in relation to the particulars pleaded.  I found her to be a credible witness. In contrast, the husband was often difficult to follow and his replies tended to ramble and to be off point.  I did not find him a very convincing witness.

14.Given my findings above, I am of the view that the particulars pleaded by the wife in paragraphs 2 and 3 of the particulars of the divorce petition as referred to above have been proved and are sufficient to enable a decree to be granted. I am also mindful of the fact that the parties have also been separated for over two years, in any event, and that, from the wife’s perspective, there is no possibility of a reconciliation with the husband.

Conclusion

15.I will therefore grant a decree nisi of divorce, based on the husband’s unreasonable behaviour.  It seems to me that this marriage has broken down irretrievably and the wife cannot reasonably be expected to live with the husband.

Costs

16.Bearing in mind the situation here and the husband’s mental condition and the fact that he is on CSSA, I will make an order that there be no order as to costs. There shall be Legal Aid taxation of the petitioner’s own costs.

Ms W Y Cheung, of Chau & Associates, for the petitioner

The respondent appeared in person