Wsn v. Bom
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FCMC 3210/2023 [2024] HKFC 191 IN THE DISTRICT COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION MATRIMONIAL CAUSES NO.3210 OF 2023 __________________________________
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--------------------- DECISION --------------------- 1.This is the Respondent’s application for the following:
2.Both parties are Irish nationals and are currently 60 years’ old. They have three children, all of whom are now over 18 years old (“collectively referred to as “the Adult Children”). The Petitioner and the Adult Children all currently reside in Ireland. The youngest son is studying in university in Ireland. 3.The parties were married in Ireland on 1 January 1996. At the time of marriage, the Petitioner (“the Husband”) had already been living in Hong Kong for 3 months due to his employment and the Respondent (“the Wife”) was living in Ireland. 4.I set out the following salient background facts which are not disputed between the parties:
5.For the purposes of these proceedings, the parties appointed a Single Joint Expert (“SJE”) to give her opinion on Irish matrimonial law. The SJE filed her opinion by way of an affirmation on 24 January 2024 (“the SJE Opinion”). By reason of the parties’ supplemental questions, the SJE gave a supplemental opinion by way of a letter dated 25 January 2024 (“the Supplemental SJE Opinion”). THE LAW 6.I shall set out the relevant legal principles relating to the jurisdiction of this court and forum non conveniens. 7.Section 3 of the Matrimonial Causes Ordinance (Cap 179) (“MCO”) states the following:
8.The principles of forum non conveniens, in the context of matrimonial proceedings, are set out in the Court of Final Appeal’s decision in SPH v SA [2014] 3 HKLRD 497 as follows:
DISCUSSION 9.The Wife does not dispute Hong Kong courts have jurisdiction over the current divorce proceedings initiated in Hong Kong. The Wife’s main argument is whether Ireland is clearly and/or distinctly the more appropriate forum to litigate the present divorce proceedings. Summary of Parties’ submissions 10.I shall not repeat each and every submission made by the parties’ respective counsel. Suffice to say, I have considered submissions of counsel. I shall summarize the salient arguments made by both sides below. 11.In summary, the Wife argues Ireland is clearly and distinctly the more appropriate forum for the following reasons:
12.The Husband contests the Wife’s application. I summarize his salient arguments below:
13.I shall now proceed to deal with the salient arguments raised by the parties. Location of assets and the ability of the courts to deal with the assets. 14.One of the major arguments made by the Wife in favour of staying the Hong Kong proceedings is that the majority of the matrimonial assets are in Ireland. The Wife argues almost 80% of the matrimonial assets are located in Ireland, including two properties and possible inheritance properties of the Husband. The parties do not own any real estate in Hong Kong. The only assets the Husband has in Hong Kong are cash in his bank accounts, stocks, some personal chattels (including cars etc.), and his pension with his Hong Kong employer. 15.Though the counsel for the Husband, Ms Allison, takes issue with the figure of 80%, she concedes that the majority of the matrimonial assets are located in Ireland. 16.I am of the view the location of majority of the assets in itself is not factor which is determinative of which forum is the more appropriate forum. As reiterated by the Court of Appeal in DGC v SLC (née C), Hong Kong family courts frequently deal with and make provision for the division of assets located internationally. 17.Having read the SJE Opinion, there is nothing precluding the Hong Kong courts from making orders against the 1st and 2nd Ireland Properties. I therefore do not accept the location of the matrimonial assets in itself to be a factor that would sway the balance in the Wife’s favour. 18.Counsel for the Wife, Ms. Booth, argues that the Wife intends to seek a pension adjustment order against the Husband’s pension in Ireland and such orders can only be made by the Irish courts. Firstly, I note that according to the Husband’s Form E, his non-Hong Kong pensions only comprise of 19% of his total pension value (total of HKD286,746 - assuming realized in 2029 - and monthly UK state pension of GBP873.64). The remaining 81% of his pension (HKD$1,246,298) is his Hong Kong pension with his current employer. Given the significant value of the Husband’s Hong Kong pension, any relief the Wife seeks against the Husband’s pensions would inevitably include seeking an order against the Hong Kong pension. The enforcement of a foreign court order against the Husband’s respective pensions would be unavoidable in such circumstances. Hence, if the divorce proceedings were to be litigated in Ireland, the Wife would face the same problems or uncertainty regarding the enforceability and/or availability of foreign court order against the Husband’s Hong Kong pension as she would if the proceedings were litigated here in Hong Kong and she had to enforce against the Irish pensions. 19.Secondly, I am of the view the ability of the Irish courts to make a pension adjustment order against the Irish pensions is to be weighed against the fact that the Hong Kong courts are able to make ancillary relief orders that could factor in the value of the Husband’s pensions in Ireland without actually making orders against the pensions. Although the Hong Kong courts may not be able to make orders against the Husband’s pensions in Ireland, the Hong Kong courts are able to consider the value of the pensions when deciding how the matrimonial assets should be divided, and in what proportion, when making the ultimate ancillary relief order. In the court’s process of equalization of the parties’ assets, it is open to the Hong Kong courts to make ancillary relief orders without a need to make any pension adjustment orders. 20.Furthermore, if the Wife finds it necessary to seek a pension adjustment order after the Hong Kong courts make an ancillary relief order, it seems the Wife is not automatically precluded from seeking such relief from the Irish courts. According to the SJE Opinion at paragraph 9(iii), the Wife merely needs to obtain special leave from the Irish courts before bringing the application. The relevant passage from paragraph 9(iii) of the SJE Opinion reads as follows:
21.By reason of the above, I do not accept the availability of a pension adjustment order in the Irish Courts to be a factor that makes the Irish Courts clearly and distinctly the more appropriate forum. Moreover, I do not accept the availability of pension adjustment orders in the Irish courts to be a significant juridical advantage to the Wife such that this is a factor that weighs in favour of Ireland being the more appropriate forum. Enforceability of a Hong Kong order in Ireland. 22.Ms Booth submits that if the Hong Kong proceedings were allowed to continue, the inevitable result is that the Wife would have to bring another set of proceedings in Ireland to enforce the Hong Kong order. Her submissions can be paraphrased as follows:
23.In so far as Ms Booth argues the Husband’s domicile creates uncertainty in the recognition of a Hong Kong divorce decree under Irish law, I do not accept her submissions. In short, there is no evidence to rebut the Husband’s evidence that he is now domiciled in Hong Kong. Although Ms Booth tries to argue the Husband has constantly relocated to different countries in the past due to his employment obligations, there is no evidence to suggest the Husband will relocate out of Hong Kong in the near future. According to his affirmation, the Husband deposes the following:
These are all factors indicating the Husband’s choice of domicile as being Hong Kong. 24.By the Supplemental SJE Opinion, the SJE opined the following:
25.Ms Booth’s submits the conclusion given in Supplemental SJE Opinion on whether the Husband’s claim of domicile should be considered cautiously and should not be accepted because the opinion lacks reasoning. Although I do accept I should consider the Supplemental SJE Opinion cautiously, for reasons given above and given the evidence currently before me, I do not accept the Husband’s claim of domicile in Hong Kong to be untenable or unsustainable. For reasons given previously, the Husband has already provided evidence of matters that, prima facie, indicate his domicile of choice is Hong Kong. 26.As for the enforcement of a Hong Kong order involving multiple proceedings, it is trite to say that any divorce proceedings involving spouses living in different countries/jurisdictions will inevitably involve multi-jurisdiction proceedings for the purposes of enforcement. The converse is true if the present divorce were to proceed in Ireland. Hence, the need to bring an application before the Irish courts for recognition and enforcement of a Hong Kong order is no more disadvantageous or uncertain than bringing an application before a Hong Kong court for the recognition of an Irish court order. 27.In so far as to whether the Irish courts would enforce a Hong Kong order, the relevant excerpts of paragraph 9(iv)(a) of the SJE Opinion reads as follows:
28.Having considered the SJE Opinion, I am of the view the considerations of an Irish court in deciding whether to order enforcement of a foreign order is similar to the considerations taken by the Hong Kong courts if asked to make a mirror order. 29.Hence, the parties’ position are similar whether the proceedings are conducted in Hong Kong or Ireland. Both parties would have to apply to enforce a foreign court order in the relevant jurisdiction and it would be the discretion of the local court to decide whether the foreign judgment would be recognised. The considerations to be had by both the Hong Kong courts and the Irish courts are similar when deciding whether to enforce a foreign order. Furthermore, both jurisdictions are similar in that Hong Kong courts and Irish courts will endeavour to give effect to a “valid and final order from a foreign court.” 30.I therefore do not accept the Wife’s argument that enforcement of a Hong Kong order in the Irish courts is so uncertain such that the divorce proceedings should more properly be litigated in Ireland. Litigation costs, financial needs assessment, tax implications 31.I shall deal with the remaining arguments made by the Wife. 32.Ms Booth argues that the Wife would suffer significant financial hardship if the proceedings were to be litigated in Hong Kong due to the high litigation costs. I do not think one can deny that litigation, wherever it may be conducted, can be expensive. However, as stated previously, given the international element of this case, multi-jurisdiction proceedings are inevitable and costs incurred for recognition and/or enforcement of foreign orders are equally unavoidable. Assuming the divorce proceedings were to continue in the Hong Kong courts, it is open to the parties to apply for interim financial relief under section 3 of the Matrimonial Proceedings and Property Ordinance (Cap 192) and Rule 78 of the Matrimonial Causes Rules (Cap 179A). Such interim relief not only includes maintenance pending suit but also litigation costs funding. I therefore do not see litigation costs as being an obstacle or even a reason to bar proceedings from continuing in Hong Kong. 33.In so far as Ms Booth submits the Irish courts would have a better idea of assessing the Wife’s financial needs, I do not accept these submissions. Firstly, references to a certain standard of living in a particular country or city can be dealt with by way of evidence. Secondly, using the same logic, the converse could be argued by the Husband in that the Hong Kong courts are better at assessing the Husband’s financial needs by a Hong Kong living standard. 34.Regarding Ms Booth’s submissions about extra litigation costs to be incurred by reason of having to call for expert opinion on various matters including reasonable living standards and valuation of Irish properties, I do not accept these costs would be avoided if the divorce were litigated in Ireland. I am of the view that even if the ancillary relief proceedings were litigated in Ireland, the Irish courts would most likely require expert evidence of the Hong Kong living standard to assess the reasonableness of the Husband expenses. Furthermore, if the parties are unable to agree on the value of the 1st and 2nd Ireland Properties, expert valuation evidence would also be unavoidable. 35.As for Ms Booth’s submissions on the tax implications of transfer of property, I take a different view. Firstly, the SJE is clear in that since the Husband is no longer resident in Ireland, any sale of the Irish property will be subject to tax. Hence, my understanding of the SJE Opinion is that, regardless of whether the proceedings are started in Ireland, the mere fact the Husband is a non-resident means the sale of any Irish property has tax implications. 36.Secondly, in so far as there may be transfer of Irish property, the SJE Opinion states at paragraph 9(ix):
37.If a Hong Kong order has been recognised and declared enforceable by the Irish courts by way of a mirror order, it seems this would fall under the exemption as set out by the SJE because any transfer ordered by the Hong Kong court endorsed by the Irish courts would be part of an Irish court order. 38.Having read the SJE Opinion and considered the circumstances of the case, I do not accept that Ireland is clearly and distinctly the more appropriate forum. Personal and/or jurisdictional advantage 39.For sake of completeness, I shall also consider last limb of the test set out in the case of DGC v SLC (née C). 40.Ms Allison argues one major determining factor in this present application is absence of the “clean break” principle in the matrimonial law of Ireland. She submits this is a significant loss of personal and jurisdictional advantage to the Husband if the proceedings were to be litigated in Ireland. 41.Paragraph 9(viii) of the SJE Opinion reads as follows:
42.In my view, the lack of the “clean break” principle in the Irish matrimonial law is a significant deprivation of the Husband’s personal and juridical advantage. 43.Since the case of LKW v DD [2010] 6 HKC 528, the Court of Final Appeal has clearly stated that in considering distribution of matrimonial assets, Hong Kong courts would adopt a “yardstick of equal division” or “equal sharing principle” where appropriate. If there were good reasons for departure from equal division, the court would make an order accordingly. 44.The importance of and the rationale for the clean break principle in Hong Kong matrimonial law is succinctly summarized in the case of Mimi Kar Kee Wong Hung v Raymond Kin Sang Hung (No 2) (2015) 18 HKCFAR 210, where Ma CJ stated the following at paragraph 36 of the judgment:
45.In the present case, two of the Adult Children are no longer financially dependent on the parties. The youngest Adult Child is in his last year of university. There is no reason why the parties should not strive for a clean break in their ancillary relief order. 46.Although Ms Booth submits a clean break may not be possible in the present circumstance and, in any event, could be practically achieved by the Irish court, this is no answer to the fact that there is no such principle entrenched in Irish matrimonial law. 47.If the Wife manages to prove a clean break is not proper in the present case and there are good reasons for departure, the Hong Kong courts would not heed slavishly to the clean break principle but instead make an order to ensure her financial needs are provided for. This would be similar to the Irish court approach of considering the proper provision to be provided to the parties. 48.In other words, the Hong Kong approach encompasses the Irish approach of providing proper provision to spouses, but the Irish approach does not encompass the Hong Kong approach of adopting the “clean break” principle as the starting point. 49.By reason of the above, even if I am wrong in that the Ireland is clearly and distinctly a more appropriate forum to litigate the present divorce proceedings, I would nevertheless refuse the Wife’s application for the reason the Husband would suffer a significant personal and juridical disadvantage if proceedings continued in Ireland. 50.I therefore refuse the Wife’s application and dismiss paragraph 1 – 3 of her summons. 51.I see no reason why costs should not follow the event. I therefore make a costs order nisi as follows:
Ms Sasha Allison instructed by Messrs Hugill & Ip for the Petitioner Ms Madeleine Booth instructed by Messrs CRB for the Respondent | ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
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