Kathleen Joy Woo v. Andrew Po Kun Woo

HCMC000025/1975

IN THE SUPREME COURT OF HONG KONG

DIVORCE JURISDICTION

ACTION No. 25 OF 1975.

(formerly V.D.J. No. 499/72)

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Coram: Mr. Registrar Silke in Chambers.

Date of Judgment: 15th October, 1975.

Mr. Pilbrow of Messrs. Johnson, Stokes & Master for Petitioner/Applicant.

Respondent in Person.

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Ancillary Relief.

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DECISION

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1. The marriage between the parties took place in Australia on the 26th February, 1966. A decree nisi was pronounced on the 24th February, 1973, in Hong Kong and the decree was made absolute on the 3rd April, 1973. At that time there was no prayer for ancillary relief contained in the Petition.

2. On the 4th June, 1975, the Petitioner was given leave under the provisions of Rule 68(2), Matrimonial Causes Rules, to apply for an Order that the Respondent do pay her "such periodical payments, secured periodical payment, and lump sum payment as the Court shall deem just".

3. The matter, as I understand it, was transferred to the Supreme Court to facilitate custody and ancillary relief applications.

4. A Notice was issued in respect of ancillary reliefs, a lump sum order, periodical payments order and secured periodical payments order on the 6th June, 1975. The Chief Justice at the hearing adjourned the question of ancillary relief to the Registrar and, I am informed, dismissed the Petitioner's prayer for custody of the children of the marriage.

5. This is hearing of the application for ancillary relief and the Petitioner confines herself to seeking a lump sum order.

6. The history of the marriage, both in Australia and Hong Kong, is of relevance. It would appear that the Respondent went to Australia in 1961 to study, met the Petitioner in about 1965 and lived with her for a year prior to the marriage in 1966. The Respondent was in a University in Australia, reading Pure Mathematics from 1964 to 1967. When he reached the stage of the study of Geology he found he could not keep up. From 1967 to 1969 he attempted various jobs, running a jewellery business with his father - who is a jeweller in Hong Kong - working as a draftsman in an electronic company in Melbourne, acting as a mathematics tutor for short periods and also as a taxi driver. He gave up the business of a jeweller as he thought it a waste of his energy, the business being small. He held none of the other jobs for any great period.

7. From his first meeting with the Petitioner she was the main breadwinner in the family. It is clear that she subsidised her husband's studies and that without her help he could not have remained on in Australia. There were some remittances from the Respondent's family in Hong Kong but these were not the mainstay of the family. The parties returned to Hong Kong with the then child of the marriage in 1969 and the second child was born in March 1970. The marriage had, however, been steadily deteriorating.

8. The Respondent tells me they returned to Hong Kong merely for a visit but on the evidence I think the return Australia was a failure and there was a possibility of a new life in Hong Kong.

9. The Respondent obtained a job in August 1969 with a firm called "3M & Co." at a salary of $800 per month acting as a salesman. The Petitioner also started to work in 1969 and a part time amah was obtained to look after the first child. During this period the rent of the flat and the salary of the amah exceeded the salary of the Respondent. The family was subsidised by the Petitioner and to an increasing extent by the father of the Respondent.

10. Eventually there was a Divorce Petition filed and at the time of the decree nisi the Petitioner was living with a Mr. Wong by whom she had a child. She made no claim in that Petition for ancillary relief because, she says, the Respondent was unlikely to be able to pay any and I think it was in her mind that Mr. Wong would be capable of supporting her. Unfortunately he contracted tuberculosis and is now an invalid.

11. She feels that she is entitled to some recompense for her "investment" - and I mean that in no derogatory sense - in the marriage that failed. She wishes to remain in Hong Kong for the foreseeable future to be near her children. She is presently employed as a "permitted teacher" at a salary of $1,800 per month and lives in the Y.M.C.A. at a rent of $400 per month. Adrian Wong is in a nursery as the Petitioner cannot afford an apartment. The Respondent now has, and as far as I can see will continue to have, custody of the children of the marriage. The Petitioner has no qualifications and her continued employment is precarious. She is aged about 30.

12. The Respondent, who does not appear to me to be a man of energy or initiative, is sales manager in Woo Chang Kee, his father's jewellery firm in Central Building, at a monthly salary of $1,500. His brother also runs a jewellery firm called "Michael Jewellery" but the Respondent denies any interest in this. There is no evidence to the contrary. He has a car which he has remortgaged and a colour television set. He is purchasing some Hi Fi equipment on a hire purchase basis.

13. In an affidavit filed on the 20th June, 1975, he states his total expenditure per month is $3,250.00 - this of course includes expenses for the children - and the shortfall in his cost of existence is made up by his father.

14. I can only have regard to the income he actually controls and I am not aware of any assets other than the car, which is of doubtful value.

15. The Petitioner on the other hand is not entitled to make a profit out of the marriage. I note the lateness of the application for ancillary relief, the general circumstances of the marriage, the conduct, in so far as it is relevant, of the parties and the existing financial position of each. Also the debts incurred by the Petitioner.

16. I think there should be a lump sum payment and, bearing that which I have said in mind, that a fair and reasonable sum would be $15,000.00.

17. I am aware that it is beyond the immediate means of the Respondent to pay this sum in a simple payment. I am of the opinion, however, that by curtailing for a period some of his interests and by careful husbanding of his resources he can pay this sum over a period in amounts of $300 per month.

18. I would therefore order that the Respondent do pay the Petitioner a lump sum payment of $15,000.00.

19. This sum to be paid in monthly instalments of $300 each - to commence on the 1st November, 1975, and to continue thereafter to be paid on or before the first day of each month.

20. Costs of this application to be borne by the Respondent and to be taxed.

21. Dated this the 15th day of October, 1975.

Representation:

Mr. Pilbrow of Messrs. Johnson, Stokes & Master for Petitioner/Applicant.

Respondent in Person.