Wkl v. Gf
Read the full judgment text of FCMC 12808/2017 on BabelCite. This Family Court judgment was delivered on 19 October 2022 before His Honour Judge S. Lo.
Matrimonial Causes – Divorce – 2 years’ separation – Jurisdiction – s.15B MCO – Grave financial hardship – Costs – WKL (Petitioner) v GF (Respondent) – Petitioner husband sought divorce based on 2 years’ separation since June 2014 – Respondent wife contested jurisdiction, alleged misrepresentation under s.15(3) MCO, claimed grave financial hardship under s.15B MCO, and denied separation – Court held Hong Kong courts had jurisdiction based on petitioner’s domicile and wife’s submission via Answer – Section 15(3) MCO not applicable as leave not needed after 16 years of marriage – Section 15B MCO hardship defence failed as ancillary relief separate and mediation reached regarding daughter – Separation established via agreement and evidence of separate living arrangements under same roof then separate roofs – Adultery allegations irrelevant to 2-year separation petition – Decree nisi granted for dissolution of marriage – Wife ordered to pay costs of the suit to the Husband with certificate for counsel – Costs follow events due to vigorous contestation – Parties married in Hong Kong on 12 February 2001 with child born 27 October 2005 – Husband petitioned on 29 September 2017 – Wife initially did not contest but filed Answer in September 2019 denying separation – Trial held 4 May 2022 – Judgment 19 October 2022 – Judge S. Lo – Petitioner represented by Ms Joyce H.Y. Lee of Raymond Luk & Co. – Respondent appeared in person – Court found parties lived apart continuously since June 2014 – Agreement for Harmonious Marriage signed by parties supported separation claim – Wife’s credibility doubted due to inconsistent stance – Jurisdiction established by Deputy Judge AN Tse Ching in 2019 – Res judicata applied – US recognition of divorce not relevant – Bigamy case in Mainland irrelevant – Hardship claim dismissed as no grave financial loss proven – Ancillary proceedings available separately – Mediation settlement reached for daughter support – Decree nisi absolute unless varied – Costs order nisi – Section 11A of the MCO allows divorce if one fact satisfied – Court will not investigate adultery details if separation proven – Modern approach to dissolve marriage quickly and painlessly – Wife failed to establish any defence to the Husband’s divorce petition – Court granted decree nisi for dissolution of the marriage – Wife to pay costs of the suit to the Husband with certificate for counsel to be taxed if not agreed – Section 15B MCO requires grave financial hardship and wrong to dissolve marriage – Court considered conduct of parties and interest of children – Wife claimed difficulty in continuing proceedings in Hong Kong due to lack of funds – Court noted Wife commenced action in Court of First Instance for $27 million – Wife’s affirmations not allowed as evidence without leave – Opening submission cannot stand as witness statement – Ladd v Marshall conditions not satisfied for new evidence – Husband’s witness statement and oral evidence accepted – Parties lived separate lives including separate holidays and meals – Physical intimacy lacked – Wife’s allegations of adultery did not assist her case – Court emphasized policy of dissolving marriage quickly and painlessly – No point in enquiry into behaviour merely to satisfy feelings – Decree nisi granted – Costs order made against Wife
Legal issues: Lack of jurisdiction of the Hong Kong Court · Misrepresentation or concealment under section 15(3) of the Matrimonial Causes Ordinance cap.179 · Grave financial or other hardship under section 15B MCO · Lack of 2 years’ separation before the presentation of the Petition · Alleged adultery of Husband
Outcome: Decree nisi granted for dissolution of marriage
Cites 7 cases
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FCMC 12808/2017 [2022] HKFC 220 IN THE DISTRICT COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION MATRIMONIAL CAUSES NO. 12808 OF 2017 ----------------------------
---------------------------- Coram : His Honour Judge S. Lo in Court Date of trial : 4 May 2022 Date of Respondent’s closing submission : 18 May 2022 Date of Petitioner’s closing submission : 8 June 2022 Date of Judgment : 19 October 2022 ---------------------------- JUDGMENT ( Petition based on 2 years’ separation ) ---------------------------- Background 1.This is the trial of the Husband’s re-amended petition for divorce based on 2 years’ separation (since June 2014). 2.The parties married in Hong Kong on 12 February 2001. The child of the family (“Daughter”) was born in Hong Kong on 27 October 2005. 3.Originally, the Husband issued the petition on 29 September 2017 on the ground of 2-year separation and the unreasonable behaviour of the Wife. 4.On 6 December 2017, the Wife filed her “Form 4 – Acknowledgement of Service”, which was prepared and signed by her former solicitors Messrs Ho & Ip (“Ho & Ip”):
5.At the First Appointment Hearing before Deputy Judge AN Tse Ching (as she then was) on 11 December 2017, Mr Dennis Ho of Ho & Ip appeared for the Wife whereas the Husband appearing in person indicated that he would not rely on the particulars of unreasonable behavior if the Wife did not contest 2-year separation. Mr Dennis Ho then expressly stated that separation was not in dispute. According to the transcript of that hearing[1], the relevant conversation was as follows:
6.It was on the above basis that the learned judge made an order, by consent, to amend the Husband’s petition by deleting all references to the Wife’s unreasonable behavior therefrom[2]. The Husband filed the amended petition on 29 September 2017 accordingly. 7.On 21 January 2019, the Wife filed a Notice to Act in Person to replace Ho & Ip. 8.On 29 July 2019, she filed a new Form 4 indicating that she would defend the case and that “分居不符合事實”[3]. She then filed an Answer in Chinese dated 12 September 2019 which did not contain any rebuttal of the Husband’s case on 2-year separation[4]. 9.The Husband made an application for directions for trial on 31 October 2019. On 9 September 2021, I ordered that the trial of the defended petition be fixed for 13 January 2022 with 1 day reserved. By consent, the parties agreed for the trial to be adjourned and re-fixed for 4 May 2022 with 1 day reserved. 10.The Husband has filed his witness statement in support of the petition on 8 November 2021 pursuant to the Order dated 9 September 2021[5]. However, the Wife has not filed any witness statement. Without leave of the court, she filed with the Court the following which may be relevant to her case:
Discussion 11.In my view, the Wife’s Answer dated 12 September 2019, which is the pleading of these divorce proceedings, simply contain no rebuttal or denial of the Husband’s case on 2-year separation. 12.The Wife explained that she through her Mainland lawyer Mr. Jiang Zemin (姜澤民) filed an Answer in Chinese dated 12 September 2019, which was also signed by her. However, she accepted that the issue of separation was never raised in this document at all. When cross-examined by Ms Lee for the Husband on why this was the case, the Wife claimed that it was because her Mainland lawyer did not know 2-year separation was a ground for divorce in Hong Kong. 13.In my view, the Wife’s explanation is entirely unacceptable and inherently highly improbable. The Wife had instructed an experience law firm in Hong Kong, Ho & Ip, of which Mr Dennis Ho appeared for the Wife at the hearing on 11 December 2017. Although the Wife has complained against Mr Dennis Ho about his professional misconducts, I am of the view that she must have received proper legal advice on the issue of separation under the Hong Kong law. 14.Regarding the various affirmations filed by the Wife, according to the Order dated 9 September 2021, parties are ordered to file and exchange their respective witness statements. The Wife had not done so. Further, such witness statements are ordered to stand as evidence in chief of the relevant party and no examination be given without leave of the court. There is no leave of the Court to permit the use of the above affirmations as evidence at the trial of the main suit. It is also noteworthy that some of these affirmations were made in the Mainland and may not be properly affirmed according to the Hong Kong laws and practice. 15.In the circumstances, I consider that the Wife should not be allowed to rely on the affirmations subsequently filed as evidence to rebut or deny the Husband’s case as pleaded in his re-amended petition. 16.Indeed, when the Wife sworn in the witness box at the trial, she refused to adopt the affirmations previously filed by her and stand as her evidence in chief as she claimed that she did not know whether they were relevant to the issue of 2-year separation. Instead, the Wife sought to rely solely on her written Opening Submission. In my view, such Opening cannot stand in place of a witness statement which has to be endorsed with a statement of truth as required under Order 38 rule 2A of the Rules of the High Court (Cap 4A), nor automatically form part of the Wife’s evidence[6]. 17.At §5 of the Wife’s Closing Submissions, she further set out an “Evidence List” describing a number of documents which were appended to the end of her Closing Submissions. According to the Order dated 9 September 2021, parties are ordered to file and serve their respective lists of documents. The Wife had not done so. All of these documents are fresh evidence which were not disclosed before or during the course of trial. I am of the view that there are no exceptional circumstances to justify adducing new evidence at a late stage, nor has the Wife explained why she did not seek to put such evidence forward at an earlier stage. Obviously, the Ladd v Marshall conditions are not satisfied. I will not take into account of these new evidence. 18.In the circumstances, the court is entitled to accept the Husband’s case as pleaded which is supported by his witness statement as well as his oral evidence given at the trial. According to his oral evidence, he gave further examples of living separate lives with the Wife since at least 2014, including taking the Daughter on holidays separately, eating meals separately, and lack of physical intimacy between the parties etc. 19.In any event, to be fair to the Wife, I will deal with the issues raised by her in her Opening, various affirmations and Closing Submissions below. Lack of jurisdiction of the Hong Kong Court 20.The Wife all along contended that Hong Kong Court has no jurisdiction over the divorce. At the hearing on 28 February 2019, the Husband addressed Deputy Judge AN Tse Ching on the issue of jurisdiction. After considering his submissions, the learned judge then delivered an oral judgment that the Hong Kong courts do have jurisdiction over the divorce. According to the transcript of that hearing, the learned judge held:
21.For this reason, it was further ordered by the learned judge that the case be restored to the special procedure list[8]. 22.The Wife has not lodged any appeal against this judgment. By the principle of res judicata, she is not allowed to re-litigate this point. 23.In any event, the Wife has subsequently filed her Answer on 12 September 2019 which, in my view, must be construed as a submission to jurisdiction of Hong Kong: see SJH v RJH [2012] 4 HKLRD 308 (Court of Appeal) at §9(13). The Wife’s contention that Hong Kong Court has no jurisdiction over the divorce has no merit. Misrepresentation or concealment of the nature of the case under section 15(3) of the Matrimonial Causes Ordinance cap.179(“MCO”) 24.The Wife’s reliance on this ground is at her “affirmation regarding the dismissal of the divorce petition”. Such affirmation was made before the Notary Public Office in the Mainland, which may not be properly affirmed according to the Hong Kong laws. She also repeats this ground in her Opening. 25.Section 15(3) of the MCO provides:-
26.The dismissal of a petition under this section is therefore premised on the basis that the Husband obtained leave to issue the petition under section 12(2) of the MCO. This section imposes restrictions on petitions presented within one year of marriage unless leave is obtained from the Court. 27.In this case, no such leave was needed by the Husband since the divorce petition was presented after some 16 years of marriage. Section 15(3) of the MCO is therefore not applicable and not relevant to the determination of the main suit at all. Grave financial or other hardship to the Wife under section 15B MCO 28.The Wife sets out the following 3 main grounds at her “affirmation regarding the dismissal of the divorce petition” and Opening Submissions:
Recognition of the divorce in the US 29.Regarding sub-ground (a), the Wife produced a print-out from a government website of the United States[9]. The relevant part in the English version is as follows:
30.Since Deputy Judge AN Tse Ching had ruled that the Husband was domiciled in Hong Kong, on the face of this website it appears that the divorce decree will be recognized in the US. There is no evidence from the Wife to the contrary, and it is well established that in the absence of evidence of foreign law, the court will presume that it is the same as Hong Kong law: see §32 of Fung Wing Sai v Chow Chiu Wan & Ors (unrep) CACV 245 of 2015, 17 March 2017. 31.In any event, even if the Wife is able to prove that the decree nisi granted by the Hong Kong Court is not recognized in the US, I cannot think of any relevancy to my decision of the granting the same or to any hardship to the Wife. Bigamy case in the Mainland 32.The Wife has instigated criminal investigations against the Husband and his new partner in the Mainland under the crime of “bigamy” (重婚罪). The Wife has cited a Mainland statute to say that the Mainland courts will not adjudicate on the divorce before the criminal case is resolved. The Wife therefore advocates that the Hong Kong Courts should do the same. 33.In my view, as the divorce suit is being proceeded with in Hong Kong, the Mainland law is not applicable in these Hong Kong divorce proceedings and the question whether the Husband and his new partner in the Mainland are charged or convicted with the crime of “bigamy” in the Mainland is simply irrelevant to the proceedings here. Grave financial or other hardship to the Wife 34.The Wife said that the Husband has not paid maintenance for the Daughter for 4 years. She also argued that a decree nisi should not be granted to the Husband in Hong Kong because she could launch ancillary proceedings against him more cheaply in the Mainland. However, I understood that the Wife commenced an action against the Husband in the Court of First Instance under HCA1755 of 2017 for recovery of $27 million in July 2017 and recently instructed lawyers to apply for summary judgment against the Husband. The outcome is still pending. 35.Further in §21 to §27 of the Wife’s Closing Submissions, she added one new ground under this heading – her alleged difficulty in continuing the matrimonial proceedings in Hong Kong. She claims to be unable to obtain any ancillary relief from the Husband because she lacks funds to continue the proceedings, and she cannot afford to keep coming to Hong Kong to do so. 36.She relied on section 15B of the MCO which provides:
37.It can be seen from sub-section (3) that hardship expressly includes the loss of the chance of acquiring any benefit which the respondent might acquire if the marriage were not dissolved. That is why the usual case for relying on this section is “where a respondent spouse opposes to the grant of a decree on the ground that he would lose any pension benefit if he ceases to be a spouse of the petitioner.”: GY v YJ [2020] HKFC 71 at §5. 38.As further observed by Ormrod LJ in Grenfell v Grenfell [1978] Fam. 128 at 139F:
39.To start with, the Wife had tried to cross-petition for the marriage to be dissolved based on the Husband’s adultery. Such an application for cross-petition had been dismissed by me at the hearing on 25 April 2022. In my view, if she also asked for dissolution of marriage based on the Husband’s adultery, it is illogical for her to claim grave financial or other hardship to her simply because the marriage was dissolved based on 2-year separation alleged by the Husband. 40.Secondly, the issue of child maintenance and ancillary relief is separate from that of the main suit. Even if the divorce decree is pronounced, the Wife may make her claims against the Husband separately including the interim maintenance for the Daughter and the decree absolute will not be granted unless the court is satisfied with the welfare of the Daughter under section 18 MPPO, Cap 192. 41.Lastly, with the assistance of the Hangzhou Xihu District People’s Court on 27 July 2021, the parties have already reached a mediation settlement in respect of financial support for the Daughter.[10] 42.After having considered all the circumstances, including the conduct of the parties to the marriage and the interest of them and of the Daughter, I am of opinion that the dissolution of the marriage will not result in grave financial or other hardship to the Wife. I therefore consider no merit in this ground as a defence to the pronouncement of the decree nisi. Lack of 2 years’ separation before the presentation of the Petition 43.This is the only real issue for determination in the main suit. 44.It is well-established that “living apart” for the purpose of proving a separation-based petition does not necessitate the parties living under separate roofs. As stated in Family Law and Practice in Hong Kong (3rd edition):
45.A defended suit on separation is fact-sensitive and the parties’ credibility is an important factor in the Court’s consideration of the evidence. In this regard, the judgment of Deputy High Court Judge Au (as he then was) in Lee Fu Wing v Yan Po Ting Paul [2009] 5 HKLRD 513 may be helpful:
46.In the original, amended and re-amended petition, it is pleaded by the Husband that the parties have lived apart for a continuous period of at least 2 years immediately preceding the presentation of the petition, namely from and since June 2014. The Husband had previously moved out twice from the family home, but decided to move back to the family abode in June 2014 for the sake of looking after the Daughter. He stayed in the Daughter’s room while the Daughter slept with the Wife. 47.As mentioned above, even the original petition based on 2-year separation and unreasonable behavior was initially not contested by the Wife. Parties’ 2-year separation was also confirmed by the Wife’s then solicitor at the hearing on 11 December 2017. It was not until July 2019 when she suddenly filed a new Form 4 stating that she intended to defend the case because (among other things) “分居不符合事實”. As the Wife failed to give any or good explanation as her change of stance, I therefore doubt very much about her credibility. 48.On the other hand, I accept the Husband’s witness statement[11] that the matrimonial disputes with the Wife had deteriorated to such extent by late 2013 that he considered that the marriage was over. He then started sleeping at the office but would return to the former matrimonial home (“FMH”) every day to stay with the Daughter. 49.In around spring 2014, the Husband reached an agreement with the Wife to move back into the FMH in order to take care of the Daughter, but they would live in separate rooms. In this regard, the Husband had exhibited an “Agreement for Harmonious Marriage” which was signed by the parties[12](“the said Agreement”). At clause 4, the Husband stated to the Wife (among other things) that “... you will leave my room if I ask you to, and similarly, I will leave the master bedroom or the study if you ask me to.” 50.The Wife challenged that the said Agreement was a forgery. 51.Since the Wife had positively alleged forgery, she bears an evidential burden of adducing evidence with cogency commensurate with the serious nature of the allegation of forgery: §§31-34 of Choi Lisa Mei Yin v Yau Pak Kin [2019] HKCA 812 (Court of Appeal). Clearly, a bare assertion by the Wife does not satisfy the evidential burden. 52.Further, the said Agreement had been exhibited in the Husband’s Affirmation as early as September 2019. If the Wife had a genuine intention to challenge the authenticity of the said Agreement, she should have done so much earlier. In my view, the Wife’s denial of the said Agreement is clearly an attempt to dissociate herself from evidence that is prejudicial to her own case. 53.I therefore conclude that the said Agreement should be accepted as contemporaneous evidence that the parties lived in separate rooms and intended to live separate lives by June 2014. 54.Based on the said Agreement, I also accept the Husband’s evidence that he then moved back into the FMH in June 2014 (i.e. the date of commencement of separation pursuant to the divorce petition). It can be seen in screenshots of videos taken by the Husband on 12 June 2016 that he had his own room with a bed and desk in the FMH[13]. 55.The parties then continued to live separate (albeit under the same roof) until around July or August 2016, when huge conflicts started to arise between them. 56.In November 2016, the parties’ rented residence in Hangzhou was sold by the owner and the Wife rented alternative accommodation. Since then, the parties have lived under separate roofs. 57.The Wife mentioned in §34 of her Opening that “the fact H and W slept together and had sex many times in the Master bedroom should successfully refute the claim that [June 2014 is] the date of commencement of separation pursuant”. However, she failed to explain why such an allegation is never stated in all her previous affirmations and Answer. In my view, it was just a bare assertion of the Wife without proof. I refuse to accept her evidence in this regard. 58.Having assessed the credibility of the parties, I have no doubt to prefer the Husband’s case on 2-year separation over the Wife’s case. Alleged adultery of Husband 59.The Wife has repeatedly alleged that the Husband had committed adultery since 2014 as part of her evidence in the main suit. However, I consider that whether or not he had committed adultery is neither here nor there. 60.Section 11A of the MCO states clearly that the Court may find that the marriage has broken down irretrievably if at least one fact stated under section 11A(2) is satisfied. Therefore, if the Court is satisfied that the parties had separated for a continuous period of at least 2 years immediately preceding the presentation of the petition, it does not (and indeed,should not) investigate in the alleged details of adultery. 61.In the words of Cheung JA of the Court of Appeal in the case of SJH v RJH (supra):
62.Also in M v L [2020] HKCA 255, where the Court of Appeal stated:
63.In my view, the Husband’s adultery or romantic relationships with a third party as alleged does not assist the Wife in seeking for a dismissal of the Husband’s petition but only reinforces the finding of separation in terms of the manifestation of the Husband’s intention to separate with the Wife in the present case. Conclusion 64.For the above reasons, I conclude that the Wife fails to establish any defence to the Husband’s divorce petition. I also find that the parties have lived apart for a continuous period of at least 2 years immediately preceding the presentation of the petition, namely from and since June 2014 and now grant the decree nisi for dissolution of the marriage. 65.As to the question of costs, normally if the respondent does not contest the 2-year separation alleged by the petitioner, there should be no order as to costs for the main suit. Unfortunately, the Wife chose to contest vigorously but fails. As costs shall follow events, I make an order nisi that she do pay costs of the suit to the Husband with certificate for counsel, to be taxed if not agreed, which shall become absolute unless any of the parties apply to vary the same by summons. 66.I thank Counsel for her assistance.
The respondent, Wife, appearing in person | ||||||||||||||
Cases cited in this judgment