F v. C
Read the full judgment text of FCMC 5954/2012 on BabelCite. This Family Court judgment before Deputy District Judge D. Cheung.
Matrimonial Causes – Ancillary Relief – Leave to Apply – Matrimonial Proceedings and Property Ordinance – Matrimonial Causes Rules – Property Transfer – Unjustifiable Delay – Seriously Arguable Case – Husband diagnosed with Multiple Sclerosis, unemployed – Divorce 2012, Consent Order made maintenance but no asset distribution – Husband applied for leave 2016, Wife absent – Leave granted, Costs order against wife, 1st Appointment fixed
Legal issues: Reason for omission of ancillary relief claim · Unjustifiable delay · Reasonable prospects of obtaining relief
Outcome: Leave to apply for ancillary relief granted
Cited by 1 case
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FCMC 5954/2012 [2018] HKFC 227 IN THE DISTRICT COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION MATRIMONIAL CAUSES NUMBER 5954 OF 2012 ________________________ BETWEEN
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________________________ RULING ________________________ Introduction 1.This is the husband’s application for leave to apply for ancillary relief against the wife after the parties’ divorce for 4 years 7 months. Background 2.The husband and the wife got married in 1995. They have a daughter (“the daughter”) and is now 20 years old and currently attending University education. The husband was diagnosed with Multiple Sclerosis (“MS”) since 1996 and is unemployed due to his disability resulting from MS. 3.On 30th April 2012, the wife presented the Petition for divorce on the ground of one-year separation with consent. The wife was represented by a Solicitors firm of who she was one of the partners (“wife’s firm”). 4.On 9th May 2012, the wife through the wife’s firm prepared the Consent Summons (“Consent Summons”) and the husband and the wife subsequently signed the Consent Summons which was made an order of the Court (“Consent Order”) upon the granting of the Decree Nisi. 5.The Decree Nisi was pronounced on 19th July 2012 and the Decree absolute was pronounced on 17th December 2012. 6.The husband was not legally represented prior to the divorce absolute being granted, and the divorce proceedings went through quickly. 7.Under the Consent Order, it is ordered that :-
8.Apart from the aforesaid order being made in the Consent Order, no order had been made related to the distribution of the family assets. 9.The husband was legally represented later and solicitors for the husband filed the Notice to Act on 28th October 2016 together with praecipe for issue of Judgment Summons dated of the even date. 10.Until 9th May 2017, the wife was represented by the wife’s firm, and she filed Notice of Intention to act in person on 9th May 2017 in place of the wife’s firm. The address for service is a property at Bel-Air (“the Bel-Air property”). 11.Subsequent to 9th May 2017, the relevant orders and correspondence have been sent to the Bel-Air property, and the wife was absent at the hearing all along. 12.On 2nd August 2018, I had given direction to the parties for the preparation of the hearing of the Summons dated 15th May 2018 (“the Summons”) and the hearing of the Summons was fixed on 4th December 2018 for argument. 13.On 4th December 2018, the wife was again absent at the hearing. After hearing the submission made by the counsel for the husband and upon reading various affirmations of service, I am satisfied that the wife was aware of the hearing date and chose not to attend the hearing, I therefore heard the argument and proceeded with the hearing in the absence of the wife. The husband’s Application 14.By the Summons, the husband seeks leave to proceed with his application for ancillary relief in his Form 25 dated 28th February 2017, 21st August 2017 and 28th March 2018 which included all he can ask for under Form 25. 15.In Form 25 dated 21st August 2017 and 28th March 2018 respectively, the husband specifically asked for a transfer/sale of property order of the Bel-Air Property, Shatin Property (“Shatin Property”) and Caine Road Property (“Caine Road Property”). 16.It is not disputed by the husband that leave from the Court is not required for those application related to the variation of maintenance of the daughter and himself, and that only the remaining matters related to ancillary relief between the husband and the wife that he had indicated not to ask for in his Form 4 required leave from the Court. Applicable legal principles 17.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 or marriage or a decree of judicial separation or at any time thereafter. 18.The statutory basis for the husband’s application is Rule 68(2)(a) of Matrimonial Causes Rules (“MCR”) which is as follows :
19.Rule 68(1) provides that if a respondent (i.e. the husband in this case) has filed an answer in the suit, it is imperative for the respondent to state his claim for ancillary relief in the answer. 20.If he shall fail to do so, then Rule 68(2) will come into play in that the respondent will only be allowed to file a notice of application for ancillary if :
21.The husband had filed Form 4 dated 8th May 2012 which stated that he did not intend to defend the proceedings, consents to a decree based on one year’s separation, does not intend to apply to court to consider his financial position pursuant to a Rule 56B application and intends to apply for custody, maintenance and child maintenance only and not capital such as lump sum and property transfer which is a mirror of the proposed relief in the Petition. 22.The husband signed the Form 4 and was unpresented at the time, and the husband disputed that he understood the terms of the Consent Summons and had been advised to obtain independent legal advice. 23.Since the husband did not make any application for ancillary relief at the time which he should have been made in the answer, according to the aforesaid statutory provisions, leave from the Court is required for the husband to make a fresh ancillary relief application. 24.The jurisdiction to make orders for ancillary relief is not limited by time, as there is no statutory time limit on when an application for ancillary relief has to be made, and it is a matter for the Court to exercise its discretion. 25.In relation to the principles on which leave is granted, 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. 26.However, the Court ought not to refuse leave to apply in any case in which on 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. The Issues 27.In my view, the following are the main issues to be determined:
Discussion Whether the husband has given a reason or explanation for the omission of his present claim for ancillary relief in Form 25 28.The husband’s case is that the parties only separated in 2016 when the husband moved to England and the wife’s statements in her Petition and Form 21(4) stated that they had separated in January 2011 are untrue, and the actual date of separation according to the husband’s case was March 2016. 29.The husband stated that his Form 4 was typed and in his Form 4, it was stated that the husband received the Petition on 8th May 2012 at the Bel-Air property one day before the husband allegedly filed and typed his Form 4. 30.The husband submitted that he was diagnosed with MS 9 months after the marriage in 1996 and received a serious MS attack and he was in a wheelchair since 2003, his Form 4 was not prepared by the husband and in fact the husband did not have any opportunity to seek legal advice when the Consent Summons presented to him. 31.The husband’s case is that he was not aware of the separation nor aware of the nature of the document prepared for him to sign at the time or subsequently. 32.It was submitted that despite the fact that the husband was granted custody, care and control of the child pursuant to the Consent Order, the parties and the child continued to live together as a family until June 2015. 33.The husband’s case is that there was no separation, the family was still living together as one family all along, and he did not know or consider he was divorced, and there was no re-conciliation between the parties because they were never separated, and the husband was not even aware that he was allegedly divorce. 34.Counsel for the husband referred me to the letter dated 15th December 2016 from the wife’s firm and also the letter from the wife dated 15th December 2016. 35.According to the said letters, the wife’ firm stated that a sum of HK43,000 will be paid by the wife each month and used for the expenses of the daily living and medical care and the outgoings of the residence at Bel-Air property. 36.It was stated that after the divorce, the wife re-conciliated and they were living at Bel-Air property and that the wife had no intention to separate from the husband, and the parties even plan to move to live in the U.K. in September 2017 with their daughter, but the husband returned to U.K. in March 2016 without notifying the wife. 37.The wife in her aforesaid letter also stated that she did not know what make the husband suddenly decide to go to England, and the husband always obey to her in the past and always believed she can make good decisions, and the husband listen to her and obey to her. 38.The wife also stated that in the Deed, the HK$43,000 maintenance fee is meant for paying the home expenses, not the husband’s pocket money. 39.She further stated that they could all go together when the daughter was studying in England and by that time they could rent out Bel-Air so that they could use the money to cover the rent and expenses in England, and that was their plan. 40.In the affirmation in support of the Judgment Summons against the wife, it was stated that the wife failed to pay the maintenance pursuant to the Consent Order to the husband since 1st January 2013 i.e. immediately after the Decree absolute being granted. 41.My view is that based on the aforesaid facts and circumstances, I found the husband explanation and version convincing. I also found that to a certain extent, the contents of the letters of the wife’s firm and the wife that I referred to supported the husband’ case. 42.Counsel for the husband also submitted that it is also clear that the contents of the Consent Summons and Consent Order did not include any clause dismissing either parties’ claims. 43.According to the contents of the wife’s letter, the wife also stated their plan as to how to use the Bel-Air property to generate income for the parties’ future expenses. 44.I am of the view that the husband had not “lulled” the wife into the belief that all claims had already been dealt with by the Consent Summons. In particular, the Consent Summons was prepared by the wife’s firm and the wife as a solicitor and the senior partner of the wife’s firm is in a better position than the husband in understanding the terms of the Consent Summons. 45.I am of the view that there is evidence to support the husband explanation why he did not claim any ancillary relief in his Form 4. Whether there has been unjustifiable delay 46.There is no disclosure of financial information of the wife in her From E before and after the divorce, and that the wife stated in her letter that after the divorce and prior to the husband departure to England in 2016, the parties were still on friendly terms and lived together. 47.In addition, the husband and the wife had not re-married, and by reason of the husband explanation which I had accepted, I do not consider that the husband had caused any unjustifiable delay in the present case. 48.Further, even if there is delay, the effect of delay does not go to jurisdiction, but to the exercise of discretion and it is one of the circumstances this Court would have to take into account under s. 7 of MPPO, and if there is any delay in this case, it can be considered during the hearing for ancillary relief, if leave is granted. 49.My view is that there is no evidence that circumstances have so changed as to make the relief claimed inappropriate, or that it would be oppressive to grant leave. Whether the husband has or appears to have reasonable prospects of obtaining the relief, namely whether he has a seriously arguable case 50.I now consider whether the husband has or appears to have reasonable prospects of his present claims being made in his favour. 51.What is clear to me is that the Consent Order was clearly not a comprehensive settlement of all the financial matters between the parties. There was no dismissal of both parties’ claims for any property adjustment orders and/or lump sums orders in the Consent Order. 52.According to the land search of the Bel-Air property and Caine Road property, these two properties were purchased in October 2004 and September 2007 respectively. 53.These two properties were held by a limited company (“the company”) in which the husband held 9,999 shares and the wife held 1share and the wife’s mother held the remaining 40,000 shares. 54.The husband and the wife’s mother are directors of the said company. On the face of these documents, the wife only retained minimal interest and had no control of the company. 55.According to the Form E of the husband, he stated that he had 50% interest of the company and this would mean that the husband is going to challenge the beneficial ownership of the shares of the company held by the wife’s mother. 56.According to the land search of these two properties, these two properties were purchased with no bank financing required at the time of the purchase. 57.The wife was a practising solicitor and a partner of the wife’s firm all along, the funding of the purchase of the two properties will be one of the issues to be determined and also the beneficial interest of the wife’s mother’s shares of the company. 58.My observation is that couple with the evading attitude of the wife to disclose her financial information, the wife’s nominal interest in the company appeared to be inconsistent to the earing capacity and the social status of the wife. 59.Given the fact that this is a long marriage between the parties and the needs of the husband because of his serious medical condition, I found that the husband has a seriously arguable case that he should be entitled to a fair share of the family assets and not as it appeared to be on paper now. Conclusion 60.Accordingly, I grant the husband leave to apply for ancillary relief as set out in his Form 25 dated 28th February 2017, 21st August 2017 and 28th March 2018. 61.Because of the circumstances of the case and the evading attitude of the wife in the husband’s application, I will order that the wife do pay the husband’s costs of and incidental to the Summons dated 15th May 2018 to be taxed if not agreed with Counsel certificate. This is an order nisi, such order to be made absolute upon the expiration of 14 days. 62.I will further direct that a 1st Appointment hearing be fixed on 7th day of January 2019 at Court 40 at 2:30 p.m. and both parties do attend personally at the said hearing.
Representation: The Petitioner acted in person and absent in the hearing Mr. Robin Egerton instructed by Oldham, Li & Nie for the Respondent |
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