Francesca Brunialti Suarez v. Jose Felix Suarez

HCMC000022/1978

Coram: Li, J. in Court

Date of Judgment: 12 January 1979

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JUDGMENT

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1. This is a wife's petition seeking dissolution of a marriage on the ground that the marriage has irretrievably broken down and that the respondent husband has behaved in such a way that the petitioner cannot reasonably be expected to live with him. The wife is an Italian and the husband is a citizen of the Philippines who, by his appearance and name, appears to be of Spanish descent.

2. The parties first met in September 1967 at a time when neither can be said to be immature in age. Then followed a period of courtship by letters and by long distance telephone calls. In the meanwhile, they met in Manila and in Hong Kong. Eventually they were married in Rome on 3rd June, 1968. Three children were born of the union: Joselito, on 22nd April, 1969; Francesco, on 24th May, 1971 and Sofia, on 5th September, 1974.

3. At the time of the marriage, the husband was unemployed, he having relinquished his job with a corporation by the name of International Harvester. However, in August 1969, he obtained employment with the Coca Cola Corporation in an executive post in Manila. From there he was posted to Bangkok in 1970, transferred to Singapore in March 1971, back to Manila in 1972 and eventually to Hong Kong in September 1972. Since then, they have resided in Hong Kong to date; first staying in an apartment in Rockymount at 39 Conduit Road, then in Panorama at 15 Conduit Road as from November, 1975.

4. The husband occupies a fairly senior post with the Coca Cola Group. Soon after his appointment, he was made Managing Director of Benetrad Limited, a wholly owned subsidiary of Coca Cola. It is an export corporation. In October 1972, he was promoted to the position of a Manager of Corporate Affairs of Coca Cola Asia and one of his duties was public relations involving quite a great deal of entertaining. Being employed on expatriate terms he had passage leave for himself and his family from year to year. Some of his leaves they spent either in Rome or in Manila where the husband's mother resides. Having regard to his position, the husband travelled quite a bit from time to time. In June 1970, the husband was sent to Amsterdam for a management seminar organized for senior executives and agents of various cities by the Coca Cola people. He stayed there for a month or so. The wife went with Joselito and a maid to Rome. Sometimes when both husband and wife had to be away from home, they sometimes left the children to the care of the husband's mother in Manila.

5. Near the end of 1974, the husband resigned from the Coca Cola Group to start his own business with a friend, Orosa, to form a company named Osco Limited. From that time onwards, the husband travelled even more extensively. Each year he is away from home averaged about three to four months.

6. On 5th October, the husband's mother came to Hong Kong and stayed in the matrimonial home until June 1976. The reason for her coming was to establish residence in Hong Kong so as to enable her to obtain a visa to Hong Kong more conveniently thereafter. She returned again in November 1976 and stayed until January 1977.

7. The aforesaid is the general background of the family of which there is no dispute. The family is comparatively well-to-do and should be a happy one. However, the wife wants her marriage to be dissolved and the allegations in support of her petition may be summarised as follows.

8. Further and better particulars in respect of specific incidents and events have been served on the husband's legal representatives and the husband has filed an amended answer to each and every one of the wife's allegations. It is not necessary to repeat verbatim the particulars and the amended answers thereto at this stage. I shall refer to them generally when I consider each of the allegations. Suffice it to say that my function is to determine, whether on balance of probability the wife has proved that the husband did behave in the manner as alleged and if he did whether the wife, having regard to her personality, disposition and behaviour, can reasonably be said to be expected to live with him.

In this context, the latter question obviously requires me to apply a subjective test. I am not saying, however, that whenever a petitioner says "I want a dissolution and will settle for nothing else, that a decree must be granted to the petitioner." The background and behaviour of both parties must be the subject matter for consideration. Thus, as far back as 1963, in Gollins v Gollins (1964 A.C. 644) Lord Reid at p.660 said as follows:-

"Nevertheless, I would try to reduce tests, rules and presumptions to a minimum. A judge does, and must, try to read the minds of the parties in order to evaluate their conduct. In matrimonial cases we are not concerned with the reasonable man as we are in cases of negligence. We are dealing with this man and this woman and the fewer a priori assumptions we make about them the better. In cruelty cases one can hardly ever even start with a presumption that the parties are reasonable people, because it is hard to imagine any cruelty case ever arising if both the spouses think and behave as reasonable people."

9. In this connection, I have to look into the conduct and behaviour of this couple throughout their ten years of married life. I bear in mind the dictum of Mr. Justice Dunn in Livingstone-Stallard v Livingstone-Stallard (1974 2 All E.R. 766) when he said, at page 770, the following:-

"I accept the submission of counsel for the wife that in a case which depends on a course of conduct and on the character of the other spouse rather than on a series of dramatic incidents, perhaps of violence, the effect of the conduct may be nonetheless serious in the long run even though it is not practical to specify particular incidents as having impinged on the memory of the wife as incidents in their own right."

10. The principle is clearly put in the case of Katz v Katz (1972 3 All E.R. 219) where Sir George Baker, P. said at page 223:-

"A word about the law. Section 2(1) (b) of the Divorce Reform Act 1969 under which this petition is brought, requires first that the husband 'has behaved'. Behaviour is something more than a mere state of affairs or a state of mind, such as for example, a repugnance to sexual intercourse, or a feeling that the wife is not reciprocating his love, or not being as demonstrative as he thinks she should be. Behaviour in this context is action or conduct by the one which affects the other. Such conduct may take either acts or the form of an act or omission or may be a course of conduct and, in my view, it must have some reference to the marriage. Then the question is what is the standard of the behaviour? The standard is that he must behave 'in such a way that the petitioner cannot reasonably be expected to live with the respondent'. That is the test. It is for the judge, not the petitioner alone to decide whether the behaviour is sufficiently grave to fulfil that test, that is, to make it unreasonable to expect the petitioner to endure it, to live with the respondent. Also it is for the judge to say whether the marriage has irretrievably broken down. To that extent I agree with what Bagnall J. said in Ash v Ash (1972) 1 All E R 582). The court must consider the effect of the behaviour on this particular plaintiff and ask the question: is it established, not that she is tired of the plaintiff or, colloquially, fed up with him, but, that she cannot reasonably be expected to live with him? In a sense it seems to me wrong to call it, as we are apt to do, unreasonable behaviour. It is behaviour that causes the court to come to the conclusion that it is of such gravity that the wife cannot reasonably be expected to live with him."

11. Bearing the aforesaid principles in mind, I propose to deal with the allegations concerning the behaviour of the husband separately to find whether all or any of them are proved on balance of probability to my satisfaction. If I am so satisfied, then I will have to consider the incidents as proved, whether individually are of such gravity so as to say that the wife cannot reasonably be expected to live with the husband any longer. I will also consider the accumulative effect of the proved incidents whether they are of such gravity that the wife cannot reasonably be expected to live with the husband any longer.

12. I now come to the allegations about clothes. The wife's version is that the husband dictated to what she should wear ever since the commencement of the marriage in August 1968. There were constant criticisms whether she was overdressed or underdressed, averaging about once in every ten days up to December 1973 or early 1974. The husband even commented on the brassiere she should wear so as to enhance the appearance of her figure, the bustline. Sometimes, she was made to change her clothes before she went out. She remembered once they went to the Hilton Hotel in Hong Kong to fetch some visitors. There was a violent argument between the husband and wife in the car. She was told many times to go back to change. As a result the husband had to drive round the Hilton Hotel three times without entering it in the course of the argument. Finally, he found that it was too late for her to go home to change. The husband's criticism about her clothes ceased only when it was apparent to him that his criticism had no effect on her.

13. The husband's version is that he merely made suggestions as to what his wife could wear. He was then a senior executive in a multi-national corporation based in the United States. Part of his duties was to entertain guests. It was natural for him to want his wife to look her best. From time to time he did make suggestions. He never criticized his wife about her clothes. He always informed his wife of the nature of functions beforehand. Many times the wife was indecisive at the last minute as to what clothes to wear and complained to the husband that she had nothing to wear. Then the husband would remind her of the prior knowledge he gave her as to the party. He suggested that she should have a few good clothes rather than more unsuitable clothes. With regard to comments on the brassieres she should wear, he said that he did so only twice. The first time was during their honeymoon when he suggested that she could buy certain brands of brassiere in the United States, where they spent their honeymoon. He suggested to her that they were better and cheaper than those available in Manila. The other time he commented was years later when he found that she had the habit of not wearing brassieres at all. He told her that she should wear a brassiere on sober occasions like in church or at formal parties. That was in 1976. As to the hotel incident, he had some vague recollections of going to fetch some visitors. He denies having any argument with her. He did not pass through the Hilton three times because of her clothes. If he ever drove past the Hilton Hotel three times it was because of the parking problem. He never suggested that the wife should go home to change.

14. I chose this allegation to consider first not only because it is alleged first in the petition but also for another reason. It is in small matters of personal conduct that behaviour and character can be found.

15. On the evidence I have heard on this issue I find the wife a headstrong and self-centred person, often prone to exaggeration. The respondent is a protective husband, more inclined to make his wife a team-mate for the advancement of his career. This might be welcome by some women, but less palatable to his wife. I accept the husband's evidence that the so-called criticism was limited to remarks that he had previously informed the wife of the function when she could not make up her mind as to what to wear for the occasion. I do not believe that he frequently told her to change her clothes or criticise her on the average of once every ten days.

16. On her own evidence, the wife said that the first year of their marriage was reasonably happy. She could not have been so if she was subjected to such severe criticisms and with such frequency right from the commencement of the marriage. Nor do I accept the wife's account of the Hilton incident. If it was the husband's habit to make his wife change her dress at home, it would not be necessary to have any argument in the car for so long. I also accept the husband's evidence as to suggestions and comments on the petitioner's undergarments. Having seen and heard the husband, I have formed the opinion that he is not such a type as to tell his wife to use such brassieres to expose her bosom to his business associates. The contrary could have been true.

17. Having regard to the wife's temperament, the occasional comments and suggestions by the husband might have caused her occasional minor irritations. I appreciate that in a petition of this nature, it is not so much the isolated incidents but the accumulative effects of such and other incidents that must be taken into consideration. This, I will reserve for consideration later when I come to consider the general effects of the husband's behaviour.

18. I now come to the allegation that the husband often gave vent to fits of violent temper when his instructions were not carried out. This is a general allegation. I will consider it together with the other allegations of harsh disciplinary measures to the children and criticism of the household management. With regard to the general allegations, I am not satisfied that the husband is the type of person who gives vent to fits of violent incontrollable temper. He is by no means a tolerant person. Nor is he a person with unbendable will or views. He believes in strict discipline. He may be meticulous in the sense that when he finds things missing or in the wrong places at a dinner party at home, he would say something sarcastic about it. He does not appear to me that he would behave in such a manner as alleged so as to lose face in the presence of his friends or servants. I find no foundation in the allegation of nashing teeth, clenching fists, banging the table or kicking the door. Perhaps, the only time when he really failed to control himself was on the 27th January, 1978, when there was an incident to which I will refer later.

19. As to the discipline of children. I find the allegation of the wife grossly exaggerated. It is alleged that the husband frequently used his leather belt on the children or touch his belt or 'go' for his belt as a threat to them, causing the wife distress. The husband's answer is that he did use his belt on the boys from time to time, when the occasion warranted it and that he would touch his belt as a symbol of his authority. He denies frequent beating or any brutal beating. He admits that he used the belt on them for good reasons, with sufficient force to sting, but not brutal. The first incident alleged, happened in Singapore in 1970. It is common ground that Joselito, the eldest child had then the naughty habit of kicking at the television set in the hotel. He persisted in this despite repeated efforts by the wife and her maid to stop him Joselito. The husband was requested to stop Joselito who persisted immediately after the husband had warned the child. The husband then used his belt on the boy's bottom or the back of his legs once. The next time it happened was in Rome in October, 1971, when Joselito persisted in crying in protest to the parents going out. Another incident was when the husband beat the bottom of Francesco with the sole of his rubber shoes in 1973 when he persisted in standing on the high chair and refused to sit down. The beating was at the wife's request. Another incident happened on 31st December, 1977 when the respondent touched his belt as a threat to Sofia, the youngest child who smacked her father's hand. A witness called by the petitioner gave evidence of yet another incident, a brutal assault by the husband on Joselito. According to this witness, the boy was dragged from the dinner table in the presence of guests, because he said something which offended the husband. The boy was given a severe beating lasting about three minutes and more than twelve strokes with the belt. Then the boy was forced back to the table to finish his dinner. If that were true, the husband is a sadistic maniac. I am convinced that the so-called brutal assault is a gross exaggeration on the part of the witness. I am not satisfied that occasional chastisement of children by the husband caused any distress to the petitioner. In the first place, the wife admits to hitting the children's head when she is angry with them. She never openly objected to the husband using the belt to hit the boy's bottom. In cross-examination, she admitted that in 1973 she requested the husband to punish Francesco for standing up in a high chair. If the punishments meted out by the husband to Joselito in Singapore in 1970, and in Rome in 1971, were so appalling to her, or distressed her so much, she had no cause to request the husband to apply discipline to Francesco in 1973. The account given by her witness of the brutal beating of Joselito is never particularized in the petition. Nor has it been given in the further and better particulars whether voluntarily or by request. It is told gratis by a person who says that every person is bi-sexual without telling to which side of the bi-sexuality he is more inclined and who openly says that he supports the wife's cause since September, 1978 without giving reasons why he should do so. He is a person of high academic qualifications and yet his criticisms of the husband's behavior, for example, failure to acknowledge his gift of a bottle of champagne or ignoring him by paying attention to some wealthy ladies, are petty. Without branding him as a liar, I have the impression that the whole of his evidence is coloured by the same degree of exaggeration and prejudice as that of the wife's.

20. With regard to the allegation of the husband's unreasonable criticism of the wife's ways of household management, I have already referred to my findings that the husband must have made sarcastic remarks from time to time when anything wrong was found pertaining to dinner parties. I accept the husband's evidence that such criticisms were directed against the servants, though I am not insensitive to the fact that the wife might find them nagging. On her own admission, the wife admits that in 1966/67, she had been working for one Mrs. Woolett and that she went out frequently with friends in the evenings on her own. She often left without telling the household or her husband where she would be going. The average time of her returning home was about thirty minutes past midnight or sometimes as late as three o'clock in the morning. That she might not have sufficient time to attend to the household needs can well be imagined. I accept the husband's evidence that at time the wife might have neglected to pay the servants' wages or to pay for staple food for the household. If the husband should voice his disapproval he is perfectly justified. However sensitive the wife is she was not too concerned about the husband's remarks. Otherwise she would have improved herself. In all fairness, however, I am not completely satisfied that the comings and goings of servants were due to the fault of the wife. In any event I do not find that the so-called criticisms by the husband in this respect caused distress to the wife.

21. Of the five separate incidents in the further and better particulars that the respondent associated with women in such a way as to cause the wife's distress evidence has been given on two occasions only. The other three have been abandoned. Of the two remaining incidents one is alleged to have taken place in Amsterdam the other in Hong Kong. Evidence relating to the Amsterdam incident, even if the respondent's version was accepted certainly gave the wife cause for concern. Etiquette does not require a lady to write to thank a fellow guest of the opposite sex for a wonderful evening however entertaining he may be. She certainly had cause to be upset. He had no excuse to take a rather light-hearted attitude towards her complaint. However, that was eight years ago and she had forgiven him. The evidence falls short of proving adultery. I do not believe that the husband would be so indiscreet as to commit adultery while he was attending an important seminar with his senior colleagues about. As to the Hong Kong incident, I accept the husband's explanation that he kept the hotel bill for the purpose of obtaining reimbursement from his business associate. By 1976 the wife, for reasons best known to herself, chose not to accept anything told to her by the husband. I find her reason as self-induced and self-righteous because she felt that the husband did not approve or most of her friends.

22. The evidence of the husband being rude to the wife's friends is of vague and general nature. The examples are linked with the husband's complaint about the table settings, the towels or ash-trays missing or spoon in the wrong place in the presence of friends. I have dealt with these allegations but I do not believe that the husband would shout about these things in the presence of friends. It is most unlikely because the husband had a job in a multi-national corporation. Part of his duty involved public relations and a lot of entertaining. He might have uttered or muttered a few words on such occasions to the wife in private about the servants. The witness called by the wife to corroborate her on this point gave incidence petty in nature. There is no pretense by the husband that he disapproved of some of them for good reasons. He had reasons to believe that two of them were homo-sexuals. Another friend, a woman, on one occasion, actually stripped herself topless in front of their children as well as the husband. However, the husband was tolerant enough not to interfere with the wife's continued association with them. I have already found that the husband was not rude to the wife's friends. I am satisfied the husband's disapproval of her friends has not stopped her association with them, caused her concern, or in anyway distressed her.

23. Referring to the visit by the husband's mother I understand that the allegation is directed at the husband only. However, it is most regrettable that the wife sees fit to drag the mother's personality to the mud. Having heard the evidence of the parties I find that most of the wife's allegation against the mother, apart from what has been expressly admitted by the mother are not substantiated. First of all, it can hardly be said that her visit was unknown to the wife. Included in the bundle of correspondence produced by the husband is a note written by Joselito to grandmama to which the wife appended a few words. This note clearly indicates that the wife knew that grandmother was coming to Hong Kong. On the balance of the evidence I am satisfied that the wife was consulted and knew why the husband had to ask his mother to stay with them for sometime. The wife did not voice her objection then. Otherwise the mother could have been accommodated somewhere away from the matrimonial home. There is not a shred of evidence to substantiate the wife's allegation that the mother is a liar and a gossiper. The mother is no more and no less indulgent to their children than any ordinary grandmother. The mother might have slept frequently at the foot of the boys' bed in their room. But that was at a time when both the wife and husband were out socialising. There are other petty things alleged against her such as sitting on the floor to watch television, eating in the kitchen with the children when there is a place for her at the table, eating left-over food, buying her own food, encouraging the children to keep late hours or hovering about them and encouraging the children to play with boxes of matches. Eating with the children in the kitchen, eating left-overs and buying her own brand of coffee and sometimes household food are expressly admitted by the mother. She also admits, occasionally, sitting on the floor watching television as the rest of the family. Owing to mutual fondness the mother might have been indulgent with the children and might have kept them slightly later than bed hours as most grandparents might do. I do not believe that the mother encouraged her grandchildren to play with boxes of matches so as to involve them her grandchildren to paly with boxes of matches so as to invole them in danger of being burnt. In any event, these minor matters do not particularly, in my opinion, distress the wife in any sense. To say that the mother's behaviour underminded the wife's authority over the children is utter nonsense. The wife might have been jealous of her mother-in-law for gaining the children's genuine affection. I am satisfied that the so-called resentment is an after-thought at the time of the petition. Had it been otherwise the wife would not have chosen to lodge the children with their grandmother in Manila from time to time when she went off herself to other places like Rome to have a good time - particularly in 1977. The wife herself, wrote to the husband's mother in 1977. I will give allowance to a wife who dislike her mother-in-law for keeping silence. I do not understand a wife would write to the mother-in-law in somewhat affectionate terms as late as 1977 when their relationship was so strained during the mother's stay. Had the wife made known to the mother that her overstay was objectional I am certain her mother-in-law would have left even if the husband, her son, wanted her to stay on. Having read the letters written by the wife to her mother-in-law from time to time I can't say that up to 1977 the relationship between them was in any way strained.

24. The accusation of extravagance and ideas of grandeur on the part of the husband are completely without ground. I am satisfied with the husband's explanations. All the events alleged are attempts by the wife to strengthen her case. Down to her heart she must know that her husband's travelling, hotel accommcdations and entertainment, were paid for by Coca Cola or Osco Ltd., repsectively at different times. In the further and better particulars she accused the husband of travelling by chartered planes. Yet not a scintilla of evidence has been adduced to substantiate this.

25. Similarly the allegation that the husband suffers from mental and emotional problem is also without foundation. Incidents are given that the husband lied about the camera he left behind in Manila, his being in possession of many passports including a diplomatic passport, his possibility of going to Peking and the finding of a potential tenant for the flat in Rome. Having heard the parties, I am satisfied that the husband had not lied and that there was neither necessity nor incentive for him to lie. I am also satisfied that the wife knew that the husband had not lied but was so worked up by the time she gave instructions to institute proceedings that she made use of such incidents in order to support her petition that the husband had a mental problem but refused to accept professional guidance.

26. A typical example is the suggestion that the husband conspired with a well-known American lawyer in Washington about the potential tenant of her flat in Rome by a long distance telephone call on 28th January, 1978. The wife went to the husband's office to search for his telephone call records and the husband was made, in the witness box, to produce all the long distance call account over the period. In the end, these show clearly that the husband did not make that telephone call to this American lawyer. I have held that the husband did not give vent to fits of incontrollable temper or being over-harsh to the children. That disposes of his emotional problem. As to ideas of grandeur and extravagance the husband has given satisfactory explanations. As to the lies I have found the husband had not lied. For this reason there is no substance in the allegation that he had any problem emotional or mental.

27. Nor is it true that the husband refused to seek assistance. On the wife's evidence she had long discussions with the husband, at least twice. The way she puts it is that she explained to her husband why she was unhappy and what was wrong with the their marriage. In other words, she was trying to put the blame entirely on the husband. Late in 1976 or early 1977, the husband did go to see Father Einaudi as did the wife. When Father Einaudi suggested that both of them should meet him together to sort out their matrimonial problems the wife refused to see Father Einaudi because, in her own words, 'Father Einaudi's advice was inadequate'. Instead, she turned to her marriage guidance counsellor and a psychologist simply because they were good listeners. The psychologist who gives evidence frankly admits that he never gave advice but only listened so that the person consulting him would resolve his or her problem from talking. This may be very professional. When the husband first realised that his marriage was in danger after the incident on 27th January, 1978 he went to the same psychologist to establish a dialogue with the wife; the psychologist had no hesitation to advise the husband to see the Ockendens and the Westericks. The same psychologist expressed his opinion that since March, 1978 divorce was the only solution and admits that by September, 1978 he made clear that he supported the wife's petition. If he formed his opinion as early as March 1978 I can't imagine that he kept his opinion to himself and never told the wife. I find that the wife fails to establish that the husband had any mental problem or that he refused to seek professional guidance.

28. This leads me to deal with the incident which occurred in the evening of 27th January, 1978. It is common ground that the wife had a flat in Rome. There had been prior arguments between them as to what type of tenant they wanted. The husband made it known to the wife that he did not want to let it to an Italian for fear of difficulty in regaining possession. That evening the couple came out from a cinema to go to a restaurant with three other friends. One of them asked about the flat in Rome and the wife said that her sister had let it to an Italian for her. This upset the husband. There was an argument between husband and wife. The wife said from that time onwards the husband behaved in such a manner that despite her effort the dinner at the San Francisco Restaurant was a nightmare to all concerned. The husband's version is that he told her there and then that he had committed the same flat to an American attorney from Washington. There is some dispute as to what happened in the restaurant. That is of minor importance in view of what happened at home later that evening. It is not necessary to repeat the evidence of the parties concerning what transpired later in the evening. Suffice it to say that on the evidence I find the husband must have been furious over the let down and the embarrassing position he was in with his American friend. He must have had further argument on returning home with the wife repeating his situation. I believe that the wife must have referred to so-called potential tenant as a lie. This inflamed the husband so much that he applied force on her hand he was then holding. She screamed. He tried to stop her by putting his other hand on her mouth. The wife found difficulty in breathing and bit his little finger causing him great pain. He slapped her face. The wife dashed downstairs into the balcony to scream some more. In desperation to stop the more embarrassing scene he pulled her back causing her to fall and knock her head against something. The sum total of this episode gave the wife a black eye, a swollen jaw, a tenderness on the back of her head and a bruised hand. The incident must be the immediate cause for the petition. The husband must have realised what he had done by then. However, whatever apology he managed to tender, which I believe he did, must be somewhat grudging, It is evident from his evidence. Anyway, the wife was too indignant to be receptive. The next morning the husband was more contrite - hence the coffee meeting in the coffee shop of the Furama Hotel. By then the husband's sense of contrition grew. He realised how wrong he was to strike a lady particularly his own wife. In desperation he was prepared to enlist the help of his wife's friend Dr. Precker whom he befriended only because of his wife. Unfortunately for the husband Dr. Precker was more on the side of his wife. All the advice the husband had from Dr. Precker was to see the Westericks and the Ockendens. That must be around February and March, 1978. For the wife the assault was a deeply felt humiliation. She immediately started divorce proceedings. Despite all that happened, however, she did travel to the United States of America for a month's holiday with her husband and children in the summer of 1978. One of the reasons she gives is that she joined the family for the trip merely not to disappoint the children. That must be one of her reasons. I am also satisfied that she has other reasons. It is evident that she did enjoy her trip to America with her family, attended social functions with her husband while in the States. She went out with the husband even before they went to the States after the incident in January, 1978. If she found it so unreasonable to live or continue to live with her husband or stay with her husband she would have remained behind or gone somewhere else. After all this would not be the first time that she left the children to somebody else's care and went away herself. Being wise after events it might have been better for the husband himself to take the children away for a holiday and let the wife alone for a while to think things over. If absence did not make the heart grow fonder at least it might achieve the object of out of mind. In due time she might see her way to forgive and forget. She might not miss the husband; she'll surely miss the children. For their sake she would certainly make a better effort to make the marriage work. As it was she was determined to go on with the proceedings particularly after September, 1978 when she had support from Dr. Precker.

29. Taking the allegations in the petition separately I find that there is some substance in the complaint about the Amsterdam incident, the Respondent's continual remarks of the way the wife manage the household affairs and in a minor degree his remarks about the wife's indecision in choosing what to wear. Such matters are no more than the normal differences, an occasional bickering between husband and wife. The wife is a more self-centred woman who can take the smooth but not the rough of a married life. The husband is less sensitive and more protective. The unfortunate incident from which the husband must be held to blame despite some provocation from the wife sparked off all the previous grievances real as well as imaginary.

30. I now consider the accumulative effect of the incident that has been alleged by the wife over the ten years of their married life. Most of the serious accusations are untrue. I doubt whether they even exist in her mind. The Amsterdam incident happened eight years ago and was long forgiven. The occasional remark about her clothes ceased as from the end of 1973 early 1974. Occasional complaint about the household management was no more than ordinary remarks by husband to wife from time to time. Despite the wife's being over sensitive I am not satisfied that such criticisms upset her too much. The conduct on the part of her husband might give cause to the wife to feel in the colloquial language 'fed up'. Their accumulative effect is of not sufficient gravity. In my opinion the only incident that sparked off and caused the petition to be served was the incident on 27th January, 1978. However, that was a solitary incident for which the husband is genuinely contrite. He had tried his very best, albeit in a clumsy way, to make amends. Taking the complaints collectively and accumulatively as well as the wife's temperament, I am not satisfied that a solitary event of assault, in the circumstances, even coupled with the past events can prove that the husband behaved in such a manner that the wife cannot reasonably be expected to live with him. In the course of the evidence there is also the suggestion that there has been no sexual life between husband and wife. This the wife frankly admitted that it was her denial to her husband. As an example of her exaggeration in the course of evidence she mentioned that there was no sex between her and her husband five years prior to the petition or to the hearing of the petition. However, their youngest daughter was born in September, 1974. She quickly corrected herself that there had been sexual relations once or twice prior to the birth of Sofia. Since then there had been no more than three times when this sort of relations occurred. However, neither the wife nor the husband complained about the infrequency of sexual intercourse. In this respect I am inclined to believe the husband that they had more sexual life than is suggested by the wife though such relationships stopped since January, 1978.

31. Counsel for Petitioner cites a part judgment of mine in the case of CHENG Bong Nang and CHENG Ho Fai in Divorce Jurisdiction Action No. 34 of 1974. In that part of my judgment I cited a dictum of the President of Probate, Divorce and Admiralty Division as follows:-

"If even one of the parties adamantly refuses to consider living with the other again, the Court is in no position to gainsay him or her. The Court cannot say, 'I have seen your wife in the witness-box. She wants your marriage to continue. She seems a most charming and blameless person. I cannot believe that the marriage has really broken down.' The husband has only to reply, ' I'm very sorry; it's not what you think about her that matters, it's what I think. I am not prepared to live with her any more.' He may add for good measure, 'What is more, there is another person with whom I prefer to live.' The Court may think that the husband is behaving wrongly and unreasonably; but how is it to hold that the marriage has nevertheless not irretrievably broken down?"

The petition in that case based on the ground of separation for five years. It is quite different from the present case where the parties have not yet separated at all. Having heard the evidence, I am quite satisfied that the only reason why the wife instituted the proceedings is because of the assault in January, 1978 for which the husband is genuinely contrite. In the course of correspondence between solicitors of the respective parties the wife was quite happy with the idea that the husband should go away for six months to enable her to think things over clearly in her mind. She was quite satisfied at that time to have a temporary separation rather than an outright divorce. Even after the opening of this Petitioner's case the parties nearly came to a settle for a separation of two years during which the wife agreed not to institute proceedings for dissolution. It is only fair to mention that I was asked to record merely the headings of their agreement and that the two years was to enable the wife to think things over and that if she wanted a dissolution by the end of second year the husband would not resist the petition. I mention all these as a reflection of the mental attitude of the parties up to the time of the hearing. Taking all into consideration, I am not satisfied on the balance of probability that the wife has made out a case that she cannot reasonably be expected to live with her husband. Now that the person who has been the main support of the wife's way of thinking is no longer in Hong Kong there shall be less fuel to the fire. A genuine love for the children is a good healing factor. To my mind that marriage has not irretrievably broken down and the petition must be dismissed.

Representation:

Mr. Rodway (Denton, Hall and Burgin) for petitioner

Mr. Otten Q.C. & Mr. Bokhary (Helen A. Lo & Co.) for respondent.