Lee Liu Siu-han v. Lee Kam-fai

HCMC000032/1976

IN THE HIGH COURT OF JUSTICE

DIVORCE JURISDICTION

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ACTION NO. 32 OF 1976

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Coram: Leonard, J.

Date of Judgment: 28th January, 1977.

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JUDGMENT

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1. This is a petition for divorce on the ground that the petitioner can no longer reasonably be expected to live with the respondent.

2. The parties to this marriage were married on the 12th October 1966. It was a forced marriage in that the petitioner was then pregnant, and that it was such a marriage was the origin of all the difficulties which have arisen since. The only child of the marriage was born on the 4th March 1967. At that time the respondent worked in his father's shop, at a very small salary of about something in the region of $400 a month. From this sum he had to pay for the rent of his room and for all the expenses of the three member of the family, I am satisfied that he did pay the expenses for the three of them for a short period after the marriage, that is to say up to sometime in the year 1968 when the petitioner went out to work. However, matters could not have been easy for him.

3. I am satisfied that during this initial period the respondent was absent from the petitioner for the greater part almost the entirety of every day - indeed he has told me that he worked in his father's shop from ten o' clock in the morning until ten o' clock at night, so that the petitioner and her very young baby, were left alone. She had no choice but either to stay in the room with the baby or to bring the baby to her parents' home, as I'm satisfied she did from time to time, and I'm also satisfied that they received food regularly in the parents' home.

4. In 1968 it was clear that these conditions couldn't continue and the parties took the rather unusual course of boarding the child out while the petitioner went out to work. I had the advantage of hearing the evidence of the woman with whom the child was boarded, and I am satisfied that the child was absent from the care of both mother and father for at least five days, and generally six days, in each week so that they saw the child for the most part only on Sundays.

5. They clearly had, from the time the wife took her first job, no family life as such. They did not have meals in common and while the respondent provided the rent and money for the upkeep of the child, he provided nothing else. Not only did he not provide housekeeping money, more importantly he did not provide the wife with the fundamental which any wife is entitled to expect from marriage, a home.

6. In 1972 I am satisfied that a violent ouarrel occurred, as a result of which the wife was struck by the respondent. Rows of this kind occur in many marriages - and are far from fatal in most - and I am not at all convinced that this quarrel was in any way fatal in this instance. It was an incident almost forgotten by the respondent which the petitioner has used here to make capital, but the position throughout was that the parties grimly bore a situation with which the petitioner was far from content but which neither made any real attempt to change.

7. In the following year, 1973, a number of changes took place in the family circumstances. The most important of these was that the husband finally decided to leave his father, as he probably should have done years before, and took a job with Hong Kong Land - a job with prospects which rapidly improved. It paid better than the job with his father in his father's store and the hours were not so long and accommodation was provided. However, for reasons known only to the husband - which have never been explained here - while the wife was working normal of ice hours, her husband chose to work, or was forced to work, from five o' clock until midnight, so once again he saw his wife scarcely at all. He would return home after midnight when she was, if not asleep, at any rate tired out. She would leave in the mornings before he was up. so there was no family life between the parties. That situation has continued to date. Although his salary continued to improve he continued to do no more than pay the rent and provide for the child; he gave his wife no housekeeping money she continued to work and have her meals with her parents while he ate out.

8. It is clear that by the time the husband changed his job the parties were married in little more than name only. The wife has told me that no acts of intercourse took place between them since 1968 but I do not accept that as the truth for they shared a bed until 1973 and I prefer his evidence that there was intercourse as often as six times a month up to the time they changed their flat in 1973. However, I am quite convinced that no attempt was made by the respondent throughout these years to provide anything in the nature of a family atmosphere.

9. After the row which took place in 1972, the respondent became more reluctant to visit the parents of the petitioner, and I am satisfied that he retired, as it were still further, into his shell and that he ceased to pay any attention whatsoever to his wife. They had no social life. Their living arrangements were purely ad hoc and they continued on until 1976, having little or nothing to say to one another during that period. I accept the evidence of the petitioner that when they changed houses they slept in separate beds and intercourse no longer took place. This the respondent denies, but on that point I accept her evidence and I am satisfied that from the time of the change of the house the marriage was a marriage in name only.

10. The petitioner tells me and I believe that there was a serious quarrel, though unaccompanied by physical violence, in June of 1976 arising out of a request by the respondent - and I am satisfied that such a request was made - that the wife should contribute to their tax that part of the tax which would represent her earnings. This led to the wife's walking out and returning permanently to her parents' house.

11. At that time the child continued to be boarded out, and I am satisfied that after the petitioner had returned to her parents, the child was taken back by the respondent from the woman with whom the child had been boarded. I am satisfied that the child was on one occasion locked up in the respondent's room, that the petitioner went there to see about the welfare of the child, found the child locked up there and took the child away. I'm not suggesting that there was any brutality in this, or indeed any negligence towards the child on the part of the respondent, but it is another instance of failure to communicate as to the welfare of the child so that clearly the petitioner thought that her child had been left locked up all day for many days in this room. I accept the evidence of the respondent that in fact this was not the case and that the child was regularly taken to his father's shop and left there under the care of the father's employees. It was on the rare occasion that the child was left alone in the respondent's room.

12. The position then is that for several years the respondent and the petitioner have lived together, as it were, as a matter of convenience rather than as being an integrated family. Whatever the amount requested by the respondent for payment of tax may have been, however insignificant the request may have been, I am satisfied that it was the last straw which caused the petitioner to break with him. I am not satisfied that any of the respondent's behaviour was malicious. I don't think it was I think he, from the very beginning, found himself in a situation in which he hadn't expected to find himself a situation that was not entirely of his own choosing; that he entered into this marriage through a sense of social duty and because of social pressure rather than with love for the petitioner or the hope that they could set up a family, and he preserved that attitude throughout. This attitude was offensive to the petitioner and such as to cause great pain to any woman who wished to live a normal married life.

13. It is abundantly clear that the parties will never live together again. The marriage has irretrievably broken down and I think the respondent's behaviour in failing to supply anything in the nature of a home to the petitioner amounts to behaviour which renders it unreasonable to expect her to continue to live with him. It might well be argued that it was the duty of the petit oner to protest, that she could have and should have altered his attitude. I have no doubt that this may be so and that to a large extent by her acquiescence and passivity she might be said to be equally to blame with the respondent for the breakdown of this marriage, so that the question is whether, I can hold that it would be unreasonable to expect her to continue to live with him.

14. O'Neill v. O'Neill⁽¹⁾ is authority for the proposition that the correct approach in assessing what is reasonable is for the court to have regard to the history of the marriage and to the particular spouses before it. In the instant case the behaviour of the respondent would not have amounted to cruelty under the old dispensation. A stronger woman or a woman more devoted to the ideals of the family and the home could probably have gradually changed the attitude of the respondent; the petitioner cannot hope to do so now. I conclude on an assessment of, the two rather negative characters of the parties to these proceedings, that their personalities were such that it was beyond the power of this petitioner to change matters at any earlier stage. In these circumstances I consider that having regard to the history of the marriage and the conduct of the parties, and perhaps most importantly the characters of the parties, that it would not be reasonable to expect the petitioner to continue to live with the respondent. Having arrived at that conclusion, I must grant this petition. There will be a decree nisi to be made absolute within three months.

15. I would like to see the parties in chambers now to consider the questions of ancillary relief.

Representation:

Miss J. Leong (Helen A. Lo & Co.) for Petitioner.

Respondent in person.

(1) (1975) 3 All E.R. 289.