Htl v. K,Re

FCMC 1678/2013

NUMBER 1678 OF 2013

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R U L I N G
(Seeking leave to set aside decree nisi)

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Introduction

1.This is an application dated the 1 June 2015 by the respondent husband to inter alia defend the divorce petition and to set aside the decree nisi. He also sought to adjourn the ancillary relief trial.

2.This Ruling is to be handed down at the same time as the Judgment on ancillary relief. Cross reference can be made to the background of this case and in particular to paragraphs 7- 9 when I set out the circumstances surrounding the divorce.

The law

3.Section 15C of the Matrimonial Causes Ordinance, Cap 179 states as follows:

15C. Power to rescind decree nisi in certain cases

(1) Where the court on granting a decree nisi of divorce holds that the only fact on which the petitioner is entitled to rely in support of his petition is that mentioned in section 11A(2)(c), it may, on application made by the respondent at any time before the decree is made absolute, rescind the decree if it is satisfied that the petitioner has misled the respondent, whether intentionally or unintentionally, about any matter which the respondent has taken into account in deciding to consent to the grant of a decree.  (Amended 29 of 1995 ss. 12 & 17)

4.Section 17 of the Matrimonial Causes Ordinance, Cap 179 adds that:

17. Proceedings after decree nisi

(1) Where a decree nisi of divorce has been granted but not made absolute, then, without prejudice to section 16, any person (excluding a party to the proceedings other than the Proctor) may show cause why the decree should not be made absolute by reason of material facts not having been brought before the court; and in such a case the court may-

(a) notwithstanding anything in section 15(5), make the decree absolute; or

(b) rescind the decree nisi; or

(c) require further inquiry; or

(d) otherwise deal with the case as it thinks fit.  (Amended 33 of 1972 s. 9)

This application

5.The husband’s case in court was that the decree nisi was based on a falsehood because the parties had not infact been separated in 2009. With respect this is neither here nor there.  The petition states that the parties had lived separately and apart since late June 2011. This does not appear to be disputed. Whatever happened prior to that date it is clear on the evidence that the parties have been separated since June 2011. The petition is dated the 25 January 2013.  As at today the parties have been separated for over four years.

6.There is no suggestion that the wife misled the husband in anyway in giving his consent to the divorce – either intentionally or unintentionally.  The husband has not been able to show cause why the decree nisi should not be made absolute for any other reason.   

Decision

7.In such circumstances the husband’s summons dated the 1 June 2015 shall be dismissed. The decree nisi do stand. Costs of the summons shall be to the wife on an indemnity basis – given the spurious nature of the husband’s application.       

Mr R Wong of Tang, Lai & Leung, for the Petitioner

The Respondent appeared in person