Li Kao Feng Ning Judy v. Li Hung Lit

CACV000058/1983

Divorce - irretrievable breakdown of marriage due to husband's behaviour - a wife who has committed adultery is nevertheless entitled to relief even though her confession and continued coldness precipitated her husband's conduct if she can satisfy the court that any right-thinking person would conclude (taking into account all the circumstances and the personalities of the parties) that her husband has in fact behaved in such a way that she cannot reasonably be expected to live with him.

Appeal allowed.

Date of hearing: 21st June 1983

Date of handing down Reasons for Judgment: 28th June 1983

BETWEEN

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Coram: Leonard, V.-P., Cons and Fuad, JJ.A.

Date: 28th June, 1983

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REASONS FOR JUDGMENT

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Fuad, J.A.

1. This is an appeal from the decision of a Judge of the High Court (given before this jurisdiction was transferred to the District Court) whereby he dismissed a wife's petition for divorce based on the ground-that the marriage had broken down irretrievably because the husband had behaved in such away that she could not reasonably a be expected to live with him. At the conclusion of the hearing we allowed the appeal and made the app appropriate Orders.  We now give our reasons.

2. The petition was filed on the 18th June 1982 and judgment was delivered on the 22nd March 1983. There was no cross-petition. The husband presented his own case at the hearing and, though served, did not appear on the appeal.

3. The parties were married on the 26th August 1969. The wife, who comes from Taiwan, was then aged about 21, and her husband is some 12 years her senior. Their only child, a son, was born two years later. During the early years of the marriage the wife stayed at home to look after the child.  She began to work as a teacher of Mandarin in 1973. The husband is also a teacher.

4. Leaving aside for the moment a violent incident which, it is common ground, occurred on the night of the 13th/14th May 1982, the wife's main complaints against her husband may thus be summarized -

5. In relation to this series of allegations, in a carefully considered reserved judgment, the learned Judge took the view that the wife had, in an endeavour to build up a case against her husband, exaggerated and coloured incidents which were part of the ordinary fabric of married life. He was not prepared to accept that the husband's conduct was such that the wife found it an increasing irritant about which she repeatedly tried to complain. The Judge recognised the difficulty of resolving conflicting evidence in cases of this kind but concluded that the husband's evidence was to be preferred. He had no hesitation in finding that the wife had failed to discharge the onus cast upon her of making out her allegations.

6. The Judge was fully entitled to take this view of the evidence which was before him, and we could not disturb his assessment that the allegations, in the light of his findings of fact, were no more than part of the ordinary "wear and tear" of a marriage.

7. But the matter did not stand there for it is perfectly plaint to us, as it was to the Judge, that what finally broke up the marriage was the wife's adultery with one of her students, a Mr. Ashton. The Judge accepted the following facts. When the husband returned from a visit to Taiwan on the 15th April 1982, he found his wife cold and unresponsive. When confronted, the wife admitted adultery with Mr. Ashton which had been going on for some time. She said they were unable to leave each other because they were in love. This was on the 17th April. On the same evening the parties met Mr. Ashton in Victoria Park and discussed the situation.  When invited by the husband to ask Mr. Ashton to leave her alone, the wife had remained silent.  On their return home the wife asked for a divorce. On the 19th April the wife said she had made up her mind that she was unable to leave Mr. Ashton and later that day, in the presence of friends, the parties agreed that they would give the marriage a chance for a further year. The Judge was satisfied that thereafter the wife had made no real effort to effect a reconciliation, while the husband had tried hard to save the marriage.

8. In her evidence, the wife frankly admitted her adultery with Mr. Ashton and that she wanted a divorce to marry him. 

9. We now turn to the most serious allegations made in the petition regarding events which took place on the night of the 13th/14th May 1982 after which the wife left home, never to return. These are, perhaps, best described in the husband's own words in examination-in-chief, as recorded in the Judge's careful note:-

10. It is only necessary to state that the wife gave a lucid and moderate account of these events. About the chopper she said he had fetched it from the kitchen and held it in front of his abdomen with the blade facing her. He had put it down after their son had talked to him. She added that while he was destroying articles in the flat he had twisted her arm.

11. In his judgment the Judge dealt with this matter as follows -

12. We are bound to say, with due respect to the Judge who tried the case with anxious care, that it was clearly a misdirection to hold that "a party cannot be allowed to take advantage of an isolated instance of conduct, which might otherwise be capable of such characterization, where that party has precipitated the conduct by her own wrong doing." We know of no authority for such a proposition. As Ormrod J. held in Carew-Hunt v. Carew-Hunt (1972) Times, June 28th, the court is no longer required to pass judgment on marital conduct but to consider the impact of a respondent's behaviour on the petitioner. Whether an isolated case of uncharacteristic conduct will suffice for the purpose of the statute will depend on its nature and gravity. No one reading the evidence in this unhappy case can fail to have considerable sympathy for the husband. A wife who has confessed to adultery with a man she is not prepared to give up can hardly expect her husband to view the position with equanimity. On the other hand if the facts justify it a wife, in our view, can indeed be heard to say "I know I have done wrong but my husband's behaviour has been such that I cannot be expected to live with him any more." It is well settled (see e.g. O'Neill v. O'Neill) [1957] 1 W.L.R. 1118, at p.1125) that the question the Judge has to decide in a case such as this is: -

"Would any right-thinking person come to the conclusion that this husband has behaved in such a way that his wife cannot reasonably be expected to live with him, taking into account the whole of the circumstances and the characters and personalities of the parties".

The Judge did not ask himself this question due to his view of the law, and so we are entitled, and indeed bound, to make our own assessment of the factual situation as presented by the evidence the Judge accepted, and which was to a large degree common ground. The husband's anguish, jealousy and anger are easy to understand but on his own account of what he did that night, it resulted, as he readily accepted, in a terrifying ordeal for his wife and, it should not be overlooked, for his young son. The incident throughout which he had completely lost. his self - lasted from about 11 at night until 4:30 the next morning.  It is true he did not actually use the chopper but he picked picked it up while in mental state that fully justified his wife's abject terror. In that state he had no concern for the effect of his behaviour on his son Applying the test in O'Neill's case we reached the conclusion that the events of the 13th/14th May were so grave that the petitioner cannot reasonably be expected to live with the respondent; and we had no doubt that the marriage had irretrievable broken down and should be dissolved. It was for these reasons that we allowed the appeal.

Representation:

Jacqueline Leong (Helen A. Lo & Co.) for the Appellant.

Respondent in person.