Read the full judgment text of FCMC 5131/2019 on BabelCite. This Family Court judgment was delivered on 9 August 2021 before Her Honour Judge Sharon D. Melloy.
Matrimonial Causes – Divorce – Decree Absolute – Financial Prejudice – Swiss Pension Fund – Enforcement – Costs – District Court. Application by Respondent husband for Decree Absolute pursuant to section 17(2)(a) of the Matrimonial Causes Ordinance, Cap 179 and Rule 65(4) of the Matrimonial Causes Rules, Cap 179A. Petitioner wife opposed the application on grounds of financial prejudice, alleging the husband might leave Hong Kong without fulfilling financial obligations under the ancillary relief order. The financial order dated 4 September 2019 required the husband to pay a lump sum of HK$3,352,402.50, partly funded by a Swiss Pension Fund identified in the husband's Form E. The order included a charge against the husband's property in France. The husband contended he could only access the pension funds after the Decree Absolute was granted, as per the terms of the pension fund. The wife argued that granting the Decree Absolute would give the husband freedom not to fulfill obligations. The Court considered the test from JAH v VH (Decree Absolute) [2013] HKFLR 664 regarding special or exceptional circumstances and public policy. The Court found that while there was a risk of financial prejudice, it was imperative to grant the Decree Absolute to enable the husband to access the funds to pay the wife. The Court noted the circular aspect of the argument relating to the Swiss pension fund. There was no evidence to support the wife's fear that the husband would leave the territory without paying, as the husband provided evidence of a valid working visa and employment contract. The Court granted the Decree Absolute forthwith and endorsed a penal notice on the financial order to provide comfort to the wife. The Court ordered that payments could be made by 27 September 2021 as originally contemplated. Costs of the summons were awarded to the husband, to be taxed on a party and party basis. The Court noted the wife's concerns about legal costs from taxation hearing were a different point. The decision emphasizes the public policy of ensuring a marriage that has irretrievably broken down be put to an end without further ado, subject to ensuring the opposing spouse is not prejudiced in terms of financial provisions. The husband's employment contract was not terminated and he was not leaving the company in October 2021 or earlier. The wife's appeal regarding costs was to be handed down together with this Ruling. The Court accepted the husband's position that there was evidence to support his stated position that he has no intention of leaving Hong Kong at present. The Court made the order that the husband seeks i.e. that the decree absolute in this case shall be granted forthwith. This is on the understanding that he will then immediately take steps to liquidate the Swiss pension fund (or parts of it) and pay the wife what is due and owing to her under Recital J. In order to provide the wife with some comfort in that respect, the Court shall further order that a penal notice shall be endorsed on the order dated the 4 September 2019. Costs shall follow the event in the normal way. Therefore, the wife shall pay the husband's costs of and occasioned by his summons dated the 6 May 2021, to be taxed on a party and party basis if not agreed.
Legal issues: Application for Decree Absolute
Outcome: Decree Absolute granted; Wife to pay Husband's costs.
Cites 1 case