Hwh v. Oss

FCJA 6615 /2019

[2024] HKFC 149

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

JOINT APPLICATION

No. 6615 OF 2019

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JUDGMENT
(Rescission of Decree Nisi)

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Introduction

1.This is a Joint Application for Divorce. Decree nisi was granted on 28 May 2020. However, both parties now agree that, by reason of their own admission of having made false representations to the court, the decree nisi ought to be rescinded.

2.The husband in this case is the 1^st applicant, the wife being the 2^nd applicant. In this Judgment, I shall refer to them as “the husband” and “the wife” respectively.

Background

3.The husband is 51 years old, and the wife 57.

4.They married in Hong Kong in November 1995. This is a childless marriage.

5.On 27 December 2019, the parties, acting in person, jointly applied for divorce on the ground that they had separated from each other as from July 2016 (“the Separation Date”). At that time, both were living at the former matrimonial home. They pleaded on the Joint Application in Chinese that (1) they slept separately (有分開睡), (2) they were not living as husband and wife (沒有夫妻生活), (3) they were financially independent (雙方經濟獨立) and (4) they had no common social lives (沒有共同社交生活).

6.On the same day, they filed their supporting affirmation (Form 21(5)) repeating, on oath, essentially the same particulars.

7.As said above, decree nisi was duly granted on 28 May 2020.

8.What followed was an enduring litigation over the ancillary reliefs upon the application of the husband who, at the time of the Joint Application, had confirmed he had no claim but subsequently went back on his words.

9.When the case first came before me on 8 July 2024, it was meant for the trial of the ancillary relief. However, what the husband said in his section 7 narrative affirmation of 10 February 2024 caused serious concern of the court. At paragraphs 39 to 41 the husband affirmed to the effect that:

(1)  he and the wife were living together as usual before the Joint Application;

(2)  the couple still had a vacation trip to Korea in 2018 and another trip to Singapore in September 2019;

(3)  they did not have financial independence;

(4)  the Separation Date was just filled out casually; and

(5)  they wrote they had slept separately was just to fulfil the “separation” requirement. In fact, they had not.

10.Before the commencement of the trial, I enquired with Mr Ng, who appeared for the wife. Mr Ng confirmed there was no separation at all. It was on that very day of filing of the Joint Application (ie 27 December 2019) that the husband admitted he had an extra-marital affair and thereupon the parties decided to divorce.

11.Mr Ng informed the court that, with the truth being unfolded, the wife was minded to apply for the rescission of the decree nisi; she however was constrained by the existing provisions of the Matrimonial Causes Rules (Cap 179) (“MCR”). The existing provisions does not allow her to do so.

12.Parties also pointed out that there is no written provision, whether under the Matrimonial Causes Ordinance (Cap 179) (“MCO”) or MCR, that allows the court to rescind the decree nisi under the unusual circumstances of this case.

13.The questions before me are if the Family Court has jurisdiction to rescind a decree nisi and what are the steps to be taken if the Court decides to have the decree rescinded.

The Existing Provisions

14.As far as written enactment is concerned, the court has power to rescind under the following circumstances:

(i)  Under section 15C (1) of MCO (in the case of a petition on the ground of separation for at least one year and the respondent consents to a decree being granted), if it is satisfied that the petitioner has misled the respondent about any matter which the respondent has taken into account in deciding to consent to the grant of the decree under section 11A 2(c);

(ii)  Under section 15C (2) of MCO (in the case of joint application on the ground of separation for at least one year), if the court is satisfied by a party that he or she has been misled by the other party about any matter which he or she took into account when deciding to make the application for divorce under section 11B(2)(a);

(iii)  By intervention of the Proctor (the Secretary for Justice) under section 16 of MCO;

(iv)  By any person (excluding a party to the proceedings other than the Proctor) under section 17 of MCO;

(v)  By consent of the parties where a reconciliation has been effected under Rules 64 of MCR.

15.The provisions (iii), (iv) and (v) above apply to both petition and joint application. It is clear that none of the above provisions apply to the present case.

Does the Court have jurisdiction to rescind the Decree Nisi in the absence of an express provision?

16.Our provisions follow closely the provisions in the English Matrimonial Causes Act (1973). Our current Section 10 of MCO provides that where there is no special provision in the Ordinance with reference to procedure, practice and power of the court, reference can be made to the practice, procedure and powers for the time being in force in the High Court of Justice in England. [1]

17.In the English case of S v S (Rescission of Decree Nisi: Pension Sharing Provision) [2002] 1 FLR 457, the petitioner wife applied to have the decree nisi rescinded; her application was supported by the respondent husband. While the factual matrix of that case was very different from that of the present case, Singer J faced the same question in light of the absence of express provision in the English Matrimonial Causes Act (1973) or the Family Proceedings Rules 1991 (now repealed) to enable the court to rescind the decree nisi.

18.The learned judge took the view that the power to rescind and the need for the power were too obvious to need mentioning: at [28]. He conducted careful analyses of the earlier authorities including Densley v Densley and Hall [1964] 1 WLUK 161; (1964) 108 Sol Jo 159, Walker v Walker [1987] 1 FLR 31 and Davies v Davies [1956] P 212; 3 WLR 840 and came to a conclusion at [32]:

“My conclusion is that the court’s ability to control proceedings implies and justifies the need to bring them to an end. Where a decree nisi has been pronounced but, for whatever reason, it is clear no application to make it absolute is likely to be made, then if the matter is brought to its attention the court does have the ability to and should mitigate any stalemate which then arises. Every such decision will involve the exercise of discretion, although the fact that both parties seek the same outcome should be a potent but not necessarily overwhelming factor.

19.It is clear that, in coming to the conduction he did, the learned judge had finality of a case in mind: see [28]. He saw there was no reason in policy or practice to refuse to grant the order of rescission in that case and there was eminent practical reasonableness in favour of doing so: see [7].

20.The approach of S v S (Rescission of Decree Nisi: Pension Sharing Provision) was applied by HHJ Bebe Chu (as she then was) in TWY v CWC [2010] HKFLR 5, at [11] and by this court in YY v QY, FCMC 5263/2012 (11 December 2014), at [24] – [25].

21.I have no doubt the court has the power to rescind the decree nisi in this case. As the court has jurisdiction to control the proceedings before it, the power to rescind could be exercised on its own motion. Taking a step further, even in the instant case where there is no express provision allowing a party to make an application for rescission, it must be right that he may make such an application to invite the court to invoke its power. It is significant to note that the application in S v S (Rescission of Decree Nisi: Pension Sharing Provision) was brought by the petitioner wife, though it was unclear which provision she had relied upon. The other authorities referred to in that judgment such as Densley v Densley and Hall, Walker v Walker and Davies v Davies were all brought to court upon the application by either the petitioner or the respondent.

22.Thus, I do not agree with Mr Ng that the wife was curtailed by the rules in making an application to rescind the decree nisi.

Should the Decree Nisi be Rescinded?

23.At the hearing, I drew parties’ attention to the case of Moynihan v Moynihgan (Nos 1 & 2) [1997] 1 FLR 59 where the petitioner husband falsely represented to the court that he was domiciled in England and that the child of the family had died. Furthermore, the respondent wife had no knowledge of the proceedings. The petition was deliberately framed in a way which was calculated to deceive the court: per Sir Stephen Brown P, at 67. Upon the application by the Queen’s Proctor, the decree absolute was set aside.

24.Rapisarda v Colladon : Re 180 Irregular Divorces [2014] EWFC 35, [2015] 1 FLR 597 was a case where the decrees nisi and absolute in a substantial number of cases had been obtained fraudulently in a conspiracy to pervert the course of justice. The 180 petitions for divorce in question had falsely represented to courts that either the petitioners or the respondents were residing in England; in fact they had not ever resided in the jurisdiction. These were deliberately done to invoke the jurisdiction of the English courts.

25.Back to the present case, it has now become clear that the particulars pleaded in the Joint Application and in the Joint Affirmation were just a sheer fabrication. The fraudulent nature of this case is not quite unlike Moynihan. It is outrageous that the parties had the audacity to have deliberately pleaded false particulars on oath in order to deceive the court into granting a decree nisi. The dignity of the court has to be maintained. The court cannot turn a blind eye to this infraction and continue to proceed with the ancillary relief that is premised on a void or voidable proceeding. Another consideration that I have to give regard to is the sanctity of marriage. Marriage as a social institution is still respected and should not be dissolved at will. There is no law in our jurisdiction that allows marriage to be dissolved merely by consent of the parties.

26.For these reasons, subject to the following paragraph, I have determined that the decree nisi ought to be rescinded.

27.The present case has not been drawn to the attention of the Secretary of Justice. An element of public policy is involved here. I direct the husband’s solicitors to send a copy of this Judgment and the necessary papers to the Secretary of Justice on or before 14 August 2024 to see whether he wishes to take such steps as he considers necessary or expedient pursuant to section 16(1)(b) of MCO. In any event, this case has to be referred to the Secretary of Justice for investigation or further action.

The steps to be taken if the decree nisi is rescinded

28.What steps, if any, are to be taken in the proceeding in the aftermath of rescission depend upon if the decree nisi is void or merely voidable.

29.In Rapisarda v Colladon : Re 180 Irregular Divorces, Sir Munby P drew a distinction between the Court’s jurisdiction to entertain a petition for divorce and the Court’s jurisdiction to grant a decree. He said:

“[7] The first thing I must consider is the jurisdiction of the English court in matters of divorce. For reasons which will become apparent in due course, it is important to distinguish two different senses in which the word jurisdiction is used. The first, what I will call ‘jurisdiction to entertain the petition’, goes to the logically prior question of whether the English court has any jurisdiction at all to receive, hear and consider the petition. The other, what I will call ‘jurisdiction to grant a decree’, goes to the question of whether the English court, assuming that it has jurisdiction to entertain the petition, has jurisdiction to grant a decree of divorce.”

30.The learned judge summarized the law as follows:

“[29] So far as material for present purposes I can summarize my conclusions on the law as follows:

(i) perjury without more does not suffice to make a decree absolute void on the ground of fraud;

(ii) perjury which goes only to jurisdiction to grant a decree and not to jurisdiction to entertain the petition, likewise does not without more suffice to make a decree absolute void on the ground of fraud;

(iii) a decree, whether nisi or absolute, will be void on the ground of fraud if the court has been materially deceived by perjury, forgery or otherwise, into accepting that it has jurisdiction to entertain the petition;

(iv) a decree, whether nisi or absolute, may, depending on the circumstances, be void on the ground of fraud if there has been serious procedural irregularity, for example, if the petitioner has concealed the proceedings from the respondent.”

31.As the false addresses in Rapisarda v Colladon : Re 180 Irregular Divorces went to the jurisdiction of the court to entertain the petition, all the decrees were void.

32.M v P (The Queen’s Proctor Intervening) [2019] EWFC 14, [2019] 2 FLR 813 was a case where due to the error of the Court Registry, a decree nisi and a decree absolute were granted on a petition pleading 2-years separation when the parties had not in fact separated for 2 years at the time of the presentation of the petition. The error was only spotted two years later during a routine review. The district judge granted leave for the husband to amend the factual basis for the marital breakdown to the wife’s “behaviour” and an order was made declaring that the decrees remained valid. The Queen’s Proctor then applied to have both decrees to be set aside on the ground that they were null and void.

33.This case was also heard before Sir Munby. The learned judge held, inter alia, that the error in question did not relate to the court’s jurisdiction to entertain the petition, it related to identifying the relevant fact only (ie the jurisdiction to grant the decrees). The decrees were therefore just voidable: at [40]. He remarked that only if a decree was held to be voidable, and not void, would the court be able to do justice to all those whose interests were affected having regard to the particular circumstances of that case. He endorsed the district judge’s decision to allow the husband to have the petition amended to “behaviour” ground so as to keep the decrees valid.

34.The parties of present case were domiciled in Hong Kong at the time of the application, the court clearly had the authority to entertain their application pursuant to section 3(a) of MCO. The decree nisi is therefore voidable.

35.Contrary to the parties in M v P (The Queen’s Proctor Intervening) who were seen by Sir Munby as victims of the justice system: at [44] and [105], the parties in this case were perpetrators of fraud. I have no sympathy towards them. It might be that the wife could rely upon either “behaviour” or “adultery” as the fact for divorce. However, the insurmountable hurtle for the parties is that their application was by way of a Joint Application. There is simply no petition for the wife, as “petitioner”, to apply for an amendment, changing the fact from one-year separation to another appropriate one. Accordingly, notwithstanding the decree nisi is avoidable, the proceedings could not be “saved” by an amendment. This is agreed to by Mr Yim, counsel for the husband, who acknowledged that he could not think of any other way to salvage the proceeding.

Order

36.For the reasons aforesaid and in order to allow sufficient time for the Secretary for Justice to consider the case, the rescission of the decree nisi is fixed to be heard in open court on Friday, 25 October 2024 at 11:30 am.

Costs

37.As both parties are culpable for the chaotic situation they now find themselves in, my tentative view is the proper costs order for the rescission issue is no order as to costs. I will deal with costs issue on the return date. Parties may lodge and serve their written submissions on costs at least 7 days before the return date.

Mr Eugene YIM, instructed by Hugill & Ip, Solicitors, on the instructions of the Director of Legal Aid, appeared for the 1^st applicant, HWH

Mr NG Ngai Man, Raymond of Fung Wong Ng & Lam LLP Solicitors, appeared for the 2^nd applicant, OSS