Sps v. Cyw

FCMC 6145/2004

[2019] HKFC 319

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES NO. 6145 OF 2004

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Coram: Deputy District Judge Susan Wong in Chambers (Not Open to Public)

Date of Hearing: 15 November 2019

Date of Judgment: 10 December 2019

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JUDGMENT

(Leave application)

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1.This is an application made by the Petitioner for leave to apply for ancillary relief against the Respondent.

2.For convenience, I shall still call the Petitioner “wife” (W) and the Respondent “husband” (H) although the parties’ marriage had long been dissolved.

Background

3.The parties were married on 30 July 1979.  W is now 63 years of age and is retired. H is 70 years of age. 

4.Three children had been born out of the wedlock.  The two eldest daughters were born in January 1982 and March 1983 respectively and the younger son (“the son”) was born in December 1984. All of them were already over the age of 18 at the time when the divorce proceedings were taken out on 10 June 2004. 

5.In the Petition which was based on one-year separation by consent, W only prayed for the marriage to be dissolved and asked for no order as to the costs of the suit.

6.Decree Nisi was pronounced on 25 November 2004 and was made Absolute on 21 February 2005. 

7.H remarried in 2016.

8.On 26 October 2018, W made this application after nearly 14 years.  It is not surprising that H objects.

W’s Case

9.In 1987, the family had been allotted a public housing unit in Ma On Shan (“the Matrimonial Home”) and in 1998, through the Tenants Purchase Scheme, they bought the property under the name of H.

10.After the divorce, H left the Matrimonial Home and W continued to live there with the 3 children of the family.  Save for the period between 2009 and 2012 when she moved to Tung Chung to look after her grandchild, W has always been living in the Matrimonial Home even till now.

11.W alleged that because she is ignorant about the law, she did not apply for ancillary relief throughout the divorce proceedings nor shortly after the Decree was made absolute.

12.In June 2016, H suddenly demanded W to leave the Matrimonial Home because he wanted to move back.  On 6 December 2016, H and his new wife entered the Matrimonial home and threw W’s properties out of the room causing damages.  H’s wife also threatened W with a hammer. During the struggle, H’s wife pushed W onto the ground causing her injuries.  Police was called and H’s wife was subsequently convicted.

13.On 18 May 2018, H took out a civil proceeding at the District Court demanding W to deliver vacant possession of the Matrimonial Home.

14.Pursuant to the Order dated 7 November 2018, H’s case against W had been adjourned pending the determination of W’s leave application and the ancillary relief (if any) application from this court.

The Law

15.Section 6 of the Matrimonial Proceedings and Property Ordinance (MPPO) sets out the powers of this court to make orders for ancillary relief for a party to a marriage, on granting a decree of divorce, a decree of nullity of marriage or a decree of judicial separation or at any time thereafter (my underlining).

16.Rule 68(1) of the Matrimonial Causes Rules (MCR) states that, inter alia, any application by a petitioner for ancillary relief shall be made in the petition.  Rule 68(2) then goes on to state that:

“Notwithstanding anything in paragraph (1), an application for ancillary relief which should have been made in the petition or answer may be made subsequently –

(a) by leave of the court, either by notice in Form 8 or at the trial; or

(b) where the parties are agreed upon the terms of the proposed order, without leave by notice in Form 8.”

17.As W’s present claim for ancillary relief was not made in her petition, she will have to apply for leave from this court before she can proceed with her application.

Legal Principles

18.Paragraph 11.12 in Rayden and Jackson On Relationship Breakdown, Finance and Children states that:

“The MCA 1973 imposes no time limit on when an application for ancillary relief has to be made. It is common practice for such an application to be made at the same time, or shortly after, the petition has been issued. However, the circumstances in some cases might justify a long delay between the determination of the suit and the issue of the application for financial remedies, for example in Hill v Hill [2017] EWCA Civ 15, a claim was able to proceed 25 years after the parties had divorced and then cohabited. Delay may affect the outcome if the delay has caused prejudice. In Chaterjee v. Chaterjee [1976] Fam 199, Ormrod LJ has said that:

“Delay, if it really is delay in the sense of prejudicing the other party, may have an important influence on the justice of the case. So may conduct which can be described as “lulling” the other party into the belief that all claims have already been dealt with. Similarly, it may be unjust to interfere with property rights after a lapse of time during which the other party has ordered his or her affairs in a reasonable and proper manner in the belief that the financial consequences of the divorce have been settled”.

19.Also in the same judgment at lines B-D at page 208:

“In my judgment, the court ought not to refuse leave to apply in any case in which on the evidence the applicant has or appears to have reasonable prospects of obtaining the relief claimed, or, to put it in another way, has a seriously arguable case. It will not be enough merely to demonstrate that on the one third yardstick the applicant can make a case on the figures (as certain passages in the judgment of Arnold J, in the present case seem to suggest). To assess the prospects of success (as indicated by Davies L.J. in Jones v Jones [1971] 3 All E.R. 1201) all the facts referred to in section 25 of the Act of 1973, including in particular, practicability and conduct, in the sense of the way in which the parties have conducted themselves and their affairs up to the time of the application, must be considered.”

20.In YWM v SKB (FCDJ 680/2996), Her Honour Judge Chu (as she then was) said that,

“33. It is not disputed that such leave is not the applicant’s for the asking. In Marsden v Marsden 1973 2 All ER 851, it was held that a reason or explanation must be given for the omission of the ancillary relief claim from a petition.

…

35. At the outset of this hearing, I have referred Mrs. Remedios and Mr. Clough to paragraphs 16.6 and 17.5 of Rayden And Jackson On Divorce And Family Matters (18th Ed) (Rayden) and the case of Chaterjee v. Chaterjee 1976 Fam 199 in relation to the principles on which leave is granted. As set out in Rayden, there is no statutory time limit on when an application for ancillary relief has to be made. It is common practice for such an application to be made at the same time, or shortly after the petition has been issued. However, the circumstances in some cases might justify a long delay between the determination of the suit and the issue of application for ancillary relief.

36. The parties do not dispute the legal principles set out in Chaterjee v Chaterjee… .

37. The court, however, ought not to refuse leave to apply in any case in which on the evidence the applicant has or appears to have reasonable prospects of obtaining the relief claimed, or, to put it another way, has a seriously arguable case. (see Chaterjee v Chaterjee)

The Issues

21.To summarise, the main issues are as follows:

(i)  whether W has given a reason or explanation for the omission of her present claim for ancillary relief in the petition;

(ii)  whether there has been unjustifiable delay; and

(iii)  whether W has or appears to have reasonable prospects of obtaining the relief, namely whether she has a seriously arguable case.

Whether W Has Given a Reason or Explanation for the Omission of Her Present Claim for Ancillary Relief in the Petition

22.W said that she is only educated up to primary 6 level and that she is ignorant about the law.  As she did not know any lawyers, the law firm that she instructed to act for her in the divorce proceedings was the one she saw from an advertisement which was displayed on a public light bus.  At no times had W been explained and/or asked about ancillary relief matters.

23.H on the other hand alleged that W was in urgent need to re-marry at the time and therefore she did not ask for ancillary relief so that the divorce matter could be dealt with in an expeditious manner.

24.As this hearing is being dealt with on affirmations, there has been no oral evidence given by the parties and their respective written evidence has not been tested by cross examination.  However, I agree with Mr Yim representing W when he submitted that the fact remains that W was never re-married.

25.In any event, I find H’s evidence totally unconvincing. H said in paragraph 5 of his affirmation filed on 6 May 2019 that because he always needed to stay in Mainland China, he had therefore allowed W to live at the Matrimonial Home to look after the son.

26.If W was indeed in a hurry to get re-married as alleged by H, how could she remain at the Matrimonial Home to look after the son?

27.Although Mr Ho representing H submitted that W’s version is unbelievable, I accept W’s version of event. 

28.Mr Ho said in his submission that the Petition should have been issued based on 2 years’ separation rather than one-year separation by consent because H alleged that the parties had been separated since 1999.  I have no comment on that.

29.However, the then law firm representing W managed to seek H’s consent.  In that case, shouldn’t they be also asking H to sign a consent summons inviting this Court to either dismiss both parties’ claim for ancillary relief or simply pray for HK$1 nominal maintenance for W which this Court is very likely to grant given the long marriage between the parties?

30.My view is that the ancillary relief matter had simply not been dealt with by the law firm.

31.I accept W’s reason for her omission.

Why Is There Delay and Whether There Has Been Unjustifiable Delay?32. W said that save and except the 3 years that she moved to live with her second daughter who was divorced in order to look after her granddaughter, she has always been allowed to live in the Matrimonial Home.  She even alleged that there had been a verbal promise made by H in the presence of her divorced daughter and the son that she would be allowed to live in the Matrimonial Home during her lifetime which H denied.

33.All I can say is that from the Statement of Claim filed at the District Court asking for vacant possession of the Matrimonial Home, H alleged that there have been 3 oral agreements held with W and the son.  The first one was entered into in mid-July 2005.  Details as set out in the Statement of Claim are as follows: -

(a)  W would be allowed to stay and live in the Matrimonial Home as the Licensee until the termination of license by H;

(b)  Subject to Paragraph (a) above, H was entitled to terminate this licence at any time by giving to the other party one month’s prior notice in writing and/or orally;

(c)  W was at liberty to move out of the Matrimonial Home at any time on the condition that W renounced her licence.  W was required to give to H one month’s prior notice in writing and/or orally for the renunciation of her licence;

(d)  W (as the Licensee) was not allowed to let any occupier(s) to stay and live in the Matrimonial Home without the prior consent of H (as the Licensor);

(e)  No licence fee was payable by W to H during her stay; and

(f)  H shall pay and discharge all rates and Government rent, water, electricity, gas, management fee and other utility charges and outgoings in respect of the Matrimonial Home.

34.From the Statement of Claim, the 2^nd Oral Agreement was entered into between H and the son and has nothing to do with the present proceedings.

35.With regard to the 3^rd Oral Agreement, H alleged in the Statement of Claim that he discovered W was unlawfully occupying the Matrimonial Home without his prior consent.  In order not to worsen his relationship with the son, H permitted W to stay in the Matrimonial Home and they entered into another oral agreement:

(a)  W and the son would be allowed to stay and live in the Matrimonial Home as the Licensees until the termination of license by H;

(b)  Subject to Paragraph (a) above, H was entitled to terminate this licence at any time by giving to the other party one month’s prior notice in writing and/or orally;

(c)  W and the son were at liberty to move out of the Matrimonial Home at any time on condition that W and/or the son renounced their licence.  W and the son were required to give to H one month’s prior notice in writing and/or orally for the renunciation of their licence;

(d)  None of W and/or the son (as the Licensees) were allowed to let any occupier(s) to stay and live in the Matrimonial Home without the prior consent of H (as the Licensor);

(e)  No licence fee was payable by W and/or the son to H during their stay;

(f)  W and/or the son shall punctually pay and discharge all rates and Government rent, water, electricity, gas, management fee and other utility charges and outgoings in respect of the Matrimonial Home; and

(g)  The 3^rd Oral Agreement superseded the 1^st Oral Agreement and 2^nd Oral Agreement.

36.My view is that no matter which version I was to believe; the facts remain that W was allowed to stay in the Matrimonial Home.  If W had not been given proper legal advice in relation to her ancillary relief matter, given that she had all along been staying in the Matrimonial Home, it is not too surprising that she thought that she would not have to do anything with regard to the Matrimonial Home in this Court. 

37.Mr Ho submitted that there has been no allegation that H has misled W about the ancillary relief matter.  He submitted that if it is to be believed that W was not properly advised by her then lawyer, W should take action against the law firm.

38.My view is that maybe it will be the case if she loses the present application but claiming her former lawyer for professional negligence is a different dispute from claiming her former husband for ancillary relief. 

39.In this case, all I have to decide is whether I should exercise my discretion in accordance with the legal principle.

40.Mr Ho also submitted that H is old and his health is deteriorating and W has been occupying the Matrimonial Home for a long period of time. It would therefore be unfair to grant her leave.  For my part, what Mr Ho said in the submission would no doubt be dealt with at the substantive ancillary relief hearing.

41.Mr Ho also submitted that the W admitted in her affirmation dated 25 October 2018[1](“her affirmation”) that H had asked her to leave the Matrimonial Home in June 2016 and that this application was only made in October 2018.  He therefore submitted that there has been unreasonable delay.  I disagree.

42.Although W said in her affirmation that H had asked her to leave, she also mentioned that it was verbal and the request was made through the divorced daughter and the son.  In the subsequent paragraph[2]of her affirmation, she also said that H and his wife entered the Matrimonial Home on 6 December 2016 causing damages and resulting in Police being called and H’s wife being convicted.

43.In the subsequent paragraphs[3], W also said that it was upon her having knowledge that H had commenced proceedings in the District Court that she was then encouraged by her children to seek legal advice resulting in the present application.  I accept her evidence.

44.As the civil proceedings to evict W was only issued on 18 May 2018 and this application was taken out on 26 October 2018, I accept W’s reason for her delay and that there is no unjustifiable delay.

45.I accept Mr Yim’s submission that Legal Aid Department took time to assess W’s financial means and the merit of the case.  After both tests were passed, the Department also needed time to assign lawyer.  My view is that taking a period of 5 months to be granted Legal Aid and thereafter to be assigned a legal team and to have her instructions taken and to be given advice is acceptable.

46.I also accept Mr Yim’s submission that there has been no unfairness to H because the Matrimonial Home which is the only family asset has not yet been sold.

Whether W Has or Appears to Have Reasonable Prospects of Obtaining the Relief, Namely Whether She Has a Seriously Arguable Case?

47.My answer is yes.

48.The factors to be considered for spousal maintenance is governed by s7 of the Matrimonial Proceedings and Properties Ordinance.

(1)  It shall be the duty of the court in deciding whether to exercise its powers under section 4, 6 or 6A in relation to a party to the marriage and, if so, in what manner, to have regard to the conduct of the parties and all the circumstances of the case including the following matters, that is to say-

(a)  the income, earning capacity, property and other financial resources which each of the parties to the marriage has or is likely to have in the foreseeable future;

(b)  the financial needs, obligations and responsibilities which each of the parties to the marriage has or is likely to have in the foreseeable future;

(c)  the standard of living enjoyed by the family before the breakdown of the marriage;

(d)  the age of each party to the marriage and the duration of the marriage;

(e)  any physical or mental disability of either of the parties to the marriage;

(f)  the contributions made by each of the parties to the welfare of the family, including any contribution made by looking after the home or caring for the family;

(g)   in the case of proceedings for divorce or nullity of marriage, the value to either of the parties to the marriage of any benefit (for example, a pension) which, by reason of the dissolution or annulment of the marriage, that party will lose the chance of acquiring.

49.In this case, the parties were married in 1979 and although W alleged in her Petition that they were separated in 2003, Mr Ho submitted that it should be in the year of 1999.  My view is that even though H’s version is to be believed, no doubt that it is still a 20 years’ marriage.

50.In W’s affirmation[4], she said that she had worked in a frozen meat shop initially as a part-timer and subsequently as a full-timer in order to subsidise the family income.  In my view, W had definitely made contribution both monetarily and by way of looking after the family.

51.In M v S FCMC 10790 of 2004 (unreported 10 October 2007), HH Judge Chu (as she then was) said,

“35. Further, the court ought not to refuse leave to apply in any case in which on the evidence the applicant has or appears to have reasonable prospect of obtaining the relief claimed, or, to put it another way, has a seriously arguable case (see Chaterjee v Chaterjee 1976 Fam 199).”

52.Also in Rayden and Jackson on Divorce and Family Matters, 18^th edition,

“17.5 A reason or explanation must be given for the omission of the ancillary relief claim from a petition or answer claiming relief (i.e. prayer for a decree of divorce, nullity or judicial separation)…If the applicant for leave appears to have an arguable case the proper place to argue it is on the substantive application, but leave will be refused where there has been unjustifiable delay, or where circumstances have so changed as to make the relief claimed inappropriate, or where no order is likely to be made or where it would be oppressive to grant leave. The court ought not to refuse leave to apply in any case in which on the evidence the applicant has or appears to have reasonable prospect of obtaining the relief claimed, or, to put it another way, has a seriously arguable case.”

53.Having considered all the above circumstances, I am of the view that W has a seriously arguable case for her claim for ancillary relief against H.

Conclusion

54.For the reasons set out above and having considered all the circumstances, I am of the view that W has given a reasonable explanation as to why her claim was not made in the petition and that the delay was not unjustifiable.  I also hold that W has a seriously arguable case, I therefore grant her leave to apply for ancillary relief.

55.I will reserve the question of costs.

Order

56.For all the reasons that I have given, this is my order:

(i)  Leave be granted to the Petitioner to apply for ancillary relief for herself;

(ii)  Upon the Petitioner filing a Form A, both parties do file and serve Form E within 28 days;

(iii)  First Appointment is fixed to be heard at 9:30am on 20 May 2020 at Court No. 1 with 15 minutes reserved;

(iv)  Both parties do attend the next hearing; and

(v)  Cost be reserved.

57.Last but not the least, it remains for me to express my gratitude to Mr Yim and Mr Ho for their helpful assistance in this application.

Mr Yim, instructed by Messrs S.T. Cheng & Co., Solicitors for the Petitioner

Mr Ho, instructed by Messrs Herbert Lee & Associate for the Respondent