Ckf v. Lhl
Read the full judgment text of FCMC 1569/1982 on BabelCite. This Family Court judgment was delivered on 28 October 2016 before Deputy District Judge G. Own.
Divorce – Unreasonable Behaviour – Matrimonial Causes Ordinance – Decree Nisi – Costs – Civil Justice Reform – Irretrievable Breakdown – District Court – Matrimonial Causes – Consensus on Breakdown – 16-year marriage – Separation 2014 – Child born 2000 – Wife accused Husband of affair – Husband accused Wife of abuse – Court declined to determine culprit – Decree Nisi granted – No costs order
Legal issues: Determination of unreasonable behaviour allegations · Costs order in contested divorce
Outcome: Decree Nisi granted on Petitioner's Petition and Respondent's Cross Petition based on consensus that marriage irretrievably broken down.
Cited by 4 cases · Cites 1 case
|
FCMC No.17031/2014 IN THE DISTRICT COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION MATRIMONIAL CAUSES NO. 17031 OF 2014 ____________
____________
_____________ D E C I S I O N (Defended Petition : Unreasonable Behaviour/ _____________ Introduction 1.This is the trial of the Wife’s Petition and the Husband’s Cross Petition where both parties accused of the other’s unreasonable behaviour which had led to their 16 years’ marriage irretrievably broken down. There is one child of the family born in 2000 who is now living with his mother (that is, the Petitioner). 2.The parties separated in 2014. The parties are at difference as to the exact date of separation. The Wife said it was 1 December 2014 in her Financial Statement (Form E). The Husband said it was 30 December 2014. 3.There had been suggestion more than once from the Husband that since the parties’ separation had exceeded one year and that both of them, by the conduct of filing the Petition and Cross Petition, had agreed that the marriage had been irretrievably broken down, the marriage should be dissolved by way of a consensual divorce (that is, one year separation) rather than spending the time and resources for litigating upon the parties’ respective allegations against each other. Nowadays, this is indeed the orthodox way of dissolving a marriage which had irretrievably been broken down. The Wife, however, disagreed and insisted on having her case of divorce fought in a court of law. The Husband, on the other hand, also disagreed with the Wife’s allegations of reasonable behaviour and decided also to have his time in court to present evidence on his Cross Petition for divorce. It is unfortunate that the trial which was estimated to last for 3 days had eventually overrun to 4 days. 4.It is fair to say that as at the date of trial of the divorce, there were 2 Summonses taken out by the Husband seeking restoration of his injunction summons which was adjourned sine die and also a committal summons against the Wife for breach of undertakings given at the hearing of the injunction summons. These 2 Summonses were listed for trial together on 23 and 24 August 2016. The statutory provisions 5.Part III of the Matrimonial Causes Ordinance, Cap.179 (“MCO”) provides, inter alia, as follows :-
6.Thus, there is only one ground for divorce in Hong Kong, namely, that the marriage has broken down irretrievably (my emphasis) which can be proved by one or more of the five facts stated in Section 11A of the MCO. The parties here are both relying upon the fact under Section 11A(2)(b) of the MCO though with the common views that the marriage had been irretrievably broken down. Apparently the parties are asking the Court to determine who is the “culprit”, so to speak. 7.Moreover, Section 15A (4) of the MCO provides :-
The case law 8.In the case of PKWP v. TTS [2011] 2 HKC where Her Honour Judge Melloy at paragraph 11 of the Judgment had said -
9.Moreover, in the latter case of KJA v. KYSH formerly known as YSH, FCMC No.4456/2013, the learned Judge restated and applied the same test in her Judgment on the husband’s petition upon the wife’s unreasonable behaviour. 10.In the English cardinal case of Grenfell v. Grenfell [1978] Fam 128 where Ormrod LJ had said :-
11.In the Grenfell case, the wife petitioned for divorce based on the husband’s unreasonable behaviour. The husband in his answer, whilst agreeing that the marriage had irretrievably broken down but denied that was attributed to his behaviour, cross petitioned for a decree based on the parties’ having separated for five years. The wife, in her reply, agreed that the parties had separated for five years but alleged that the grant of a decree would result in grave hardship to her in that as a practising Christian, her conscience would be affronted if the marriage was to be dissolved otherwise than on grounds of substance. The wife’s reply was struck out and it was decided that the court should first determine whether the husband’s case of five years separation was established, and if so, whether the court should receive evidence from the wife in support of her prayer for dissolution. The wife appealed the striking out decision and lost. The Wife’s Petition 12.At paragraph 9 of the Wife’s Petition, she provided details of the Husband’s unreasonable behaviour as follows :-
The Husband’s Cross Petition 13.In the Husband’s Cross Petition attached with his Answer to the Wife’s Petition, the alleged unreasonable behaviour against the Wife are as follows :-
14.The Wife acted in person throughout this trial of the divorce suit which was bitterly fought. The Husband was legally represented and engaged Counsel Mr. Enzo Chow. Both parties have not called any other witnesses and simply relied upon their own testimonies and documents. The Parties’ “Unreasonable Behaviour” 15.In a gist, the Wife’s pleaded case is that the Husband’s extra marital relationship for some 12 years had caused the breakdown of their 16-year marriage. Throughout the trial, the Wife was quite emotional and repeatedly accused the Husband’s affairs with another woman, so called “包二奶”. I must say that from time to time the Wife had become almost uncontrollable that this Court had to stand down the trial in order for her to calm down. To a certain extent, the trial was unnecessarily prolonged and disrupted. Admittedly, the Wife has been suffering from mania which might have been the reason for such demeanour in Court. 16.The Wife, whilst unrepresented for this trial, filed different lengthy affirmations all handwritten in Chinese setting out her unpleasant experiences in the past which include the Husband accused her of having psychiatric problem; forcefully sent her to a psychiatric hospital in Mainland China; drove her out from the matrimonial home in Shenzhen PRC when she was made completely naked which she described as : “把我一絲不掛推出屋外 !”; the Husband’s discreet travel with the mistress during Christmas; reference to various text and whatsapp messages with the Husband; reference to some receipts and invoices of purchase and travel allegedly were made by the Husband for the mistress. 17.On the other hand, the Husband’s Cross Petition principally focused upon the Wife’s abusive character and mentality, causing all sorts of harassment and nuisance, assaults, and causing bodily injuries on him, differences in money values and opinion which he cannot reasonably be expected to live with the Wife. 18.Both parties, apart from leading evidence to support their own case of unreasonable behaviour against the other party, also had had the chance to respond and bring in any evidence in rebuttal to the allegations that they face. No matter which way the evidence goes on each side, the undisputed fact is that both parties’ are of the same view that their marriage had already been irretrievably broken down which must be dissolved by the Court. Analysis and Discussion 19.I do not intend to venture into each and every allegation or answer of the parties nor, in my view, am I required to do so after given careful consideration to the Judgment of Hon Cheung JA in the case of SJH v. RJH (divorce: answer) [2012] 4 HKLRD 308 at 317 paragraph 11(7) where His Lordship was said :-
20.Further, at paragraph 11(8)(c) of the same Judgment in SJH where his Lordship continued :
21.Furthermore, under Order 1A rule 1 of the Hong Kong Civil Procedure 2016 (“HKCP”), where it provides :
22.Having said, I am minded to say that nowadays after the Civil Justice Reform, courts should exercise their case management powers to achieve a speedy resolution of the parties’ dispute and ensure justice was done. In my decision, parties who choose to insist upon their rights to litigate over matters which could, or indeed should, otherwise be resolved without a bitterly fought battle in a court of law would find himself or herself doing so at his or her own expense. 23.In the present case the Wife, apparently without the benefit of legal advice and acting in person, had blatantly rejected the Husband’s proposals of having a consensual divorce. Faced with such a situation, the Husband, legally represented throughout, also decided to go for a full trial of his Cross Petition and also defending the Wife’s case against him. 24.The parties’ Petition and Cross Petition are supported by their respective Statement of Truth on the factual contents stated therein which, amongst other accusations, include the common fact, or if I may use the word ‘consensus’, that their marriage has been irretrievably broken down. As a matter of law, such a fact is the only ground upon which the Court in its divorce jurisdiction should grant a decree nisi to end the marital relationship ‘quickly and painlessly’ with expedition. In such a case, any finding of fact on whoever’s accusations against the other is no more than an inquiry into behaviour to satisfy feelings even though they are genuinely and sincerely held by one or other of the parties. To do so would be a waste of time of the court and counter to the general policy or philosophy of divorce legislation today (see Grenfell v. Grenfell, supra). Whoever is the ‘winner’ or scores the most amongst the various allegations would not affect the ‘consensus’ that the marriage has been irretrievably broken down and that a decree nisi is being prayed for by both of them. In my view, asking the court to put a ‘tick or cross’ on each of the allegations serves no legitimate and meaningful purposes save and except to promote parties’ grievances and animosity. This also runs against the spirit of the Civil Justice Reform under Order 1A rule 1 of the HKCP which I have outlined above. 25.For these reasons and on all fairness and practicality, I grant a decree nisi for dissolution of the parties’ marriage upon the parties’ ‘consensus’ that their marriage had been irretrievably broken down which was affirmatively stated in the Petition and the Cross Petition. Costs 26.Given careful consideration to all the above, I find it is fair and reasonable not to grant any costs order. For otherwise, the court would be encouraging parties to have their days in court under the misapprehension or hoping that it would be at the expense of the other party to resolve disputes which could have been completely avoided if either or both parties adopt a sensible and pragmatic approach. Orders 27.I now make the following Orders :-
28.This is a Costs Order Nisi which will become absolute if no application to vary the same is filed within 21 days of this Decision. 1st Appointment 29.I also direct the parties to arrange with the Listing Officer for a hearing of the 1st Appointment within 14 days from this Decision.
Petitioner being unrepresented, appearing in person Mr. Enzo Chow instructed by Messrs. K. B. Chau & Co., Solicitors for the Respondent | ||||||||||||||||||
Cases cited in this judgment
Other judgments that cite this case
Further hearings and rulings under FCMC 1569/1982