Chan Hay (Hee) Koo v. Hui Shun Cheong

DCCJ001589/1970

IN THE DISTRICT COURT OF HONG KONG

HOLDEN AT VICTORIA

CIVIL JURISDICTION

ACTION NO. 1589 OF 1970

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Coram: District Judge T.L. Yang in Court.

Date of Judgment: 15 July 1970

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JUDGMENT

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1. In these proceedings the wife claims maintenance from the husband on the ground of his wilful neglect to provide reasonable maintenance for her.

2. She is 33 years of age and he 39. They were married in 1959 in Hong Kong, and there are no children of the marriage.

3. It is very apparent that she is a more intelligent and better educated person than he. It also appears that she is somewhat more westernized having been educated in Anglo-Chinese schools in Hong Kong while he is perhaps more Chinese in many ways. Both her father and his father are men of substance and are rice merchants doing considerable business in this Colony, and according to her evidence it was at the insistence of her parents that she married the defendant against her own wish. It seems that from an early stage of their marriage they had discovered that they were not suited to each other. Against this background, it was only a matter of time before serious frictions within the matrimonial home developed, culminating in an agreement to separate. On the 1st October, 1967, the parties drafted a so-called divorce agreement at home (Ex.D1), which they both signed. This agreement I shall refer to as the divorce agreement, though it has no legal effect as such. The terms of the agreement are as follows :-

"Because of difference in character we agree that as from today's date (we) divorce (each other). Thereafter each party shall not interfere with each other's marriage. lest oral words shall have no proof, (we) specifically make this divorce agreement, each party having a copy hereof.

4. The wife left the matrimonial home on the following day and never returned, nor is there any evidence that he ever asked her to. Sometime after the wife's departure, the husband obtained legal advice on the divorce agreement, as a consequence of which the two parties went to a solicitor's office and executed a formal separation agreement dated 15th January, 1968, (Ex.P2), presumably intending it to supercede the earlier agreement. It is therefore indisputable on the evidence that the parties had parted by consent and that their separation was a consensual separation.

5. It will be noted that neither the agreement executed at home nor the agreement executed at the solicitor's office makes any mention as to the payment of maintenance by the husband to the wife. No financial arrangement of any kind were made thereby.

6. According to the wife's evidence, she has always been in poor health, but this is denied by the husband and she has produce no evidence to support her allegation. She says that because of her poor health she was able to work only intermittently both before and after her marriage; and the last employment she had was with a carpet factory, earning $400 a month. She says that when the divorce agreement was made she did not ask for maintenance from her husband because in his own opinion, and knowing of her poor health, he ought to pay for her maintenance. Again, she did not ask the solicitor to insert a provision for maintenance in the separation agreement because her husband had said that he wanted to provide maintenance and she believed him. The husband, however, says that she never asked for maintenance because she thought it was improper for her to do so as she was hoping to leave him and remarry. However, he voluntarily gave her $500 per month because she was unable to find employment and the understanding was that he would continue to give her maintenance every month until she became employed. It is not disputed that she has not been employed in any way since the separation and the husband has honoured his undertaking up to and including the month of January this year. The $500 was later increased to $600 but payment was stopped in February this year because, according to his evidence, she wanted to go to the United States or Canada with the intention of remarrying if she could find the right man and not coming back to Hong Kong.

7. In this action, there is no question of the husband not being able to pay the maintenance asked for. He works in his father's rice shop and he says that he is given $1,000 per month as "spending money", by which epithet I suppose he means pocket money. He takes his meals in his father's shop and his father pays for his rent and car. The $600 per month which he was paying his wife came out of the $1,00 given to him by his father.

8. It is now necessary to consider the legal questions involved in this case. The separation agreement under consideration is a maintenance agreement within the meaning of Section 35(2) of the Matrimonial Causes Ordinance, Cap. 179. "Maintenance agreement" is defined therein as any agreement in writing made between the husband and wife for the purposes of their living separately, being, inter alia, a separation agreement which contains no financial arrangements in a case where no other agreement in writing between the same parties contains such arrangements.

9. It has been submitted that Section 36(1) applies in the present case. This section provides, inter alia, that where a maintenance agreement is for the time subsisting and the parties to the agreement are for the time being either both domiciled or both resident in Hong Kong, the Court on being satisfied that by reason of a change in the circumstances in the light of which any financial arrangements contained in the agreement were made or, as the case may be, financial arrangements were omitted from it, the agreement should be altered so as to make different, or so as to contain, financial arrangements, may by order made such alterations in the agreement by varying or revoking any financial arrangements contained in it, or by inserting in it financial arrangements for the benefit of one of the parties to the agreement as may appear to be just having regard to all the circumstances.

10. The prerequisite for the application of Section 36(1) is a change in circumstances, which is absent in the situation under consideration. The wife's alleged poor health, if indeed she had been in poor health, had been in existence well before the separation. There is no evidence that the husband's financial status has improved, nor that the wife's has deteriorated. That being so, the answer is not to be sought in the section. The problem therefore must be looked at from another viewpoint.

11. In Baker v. Baker (1950) W.N. 29, Lord Merrimsn, P., said that if the wife could prove that the consensual separation was on the express or implied basis that the husband undertook to be responsible for her maintenance, then she would be entitled to the agreed amount (if there was an agreed amount) or to a reasonable amount. The learned President followed himself in a subsequent case Stringer v. Stringer (1952) 1 A.E.R. 373, wherein it was held that the proof of a consensual separation of spouses without any agreement by the parties regarding the maintenance of the wife is sufficient to rebut the common law presumption that a husband is liable to maintain his wife and to that extent the onus is on the wife to prove liability by the husband. The learned President again followed himself in Starkie v. Starkie (1953) 2 A.E.R., 1519, where it was held that since the separation of the parties was consensual and there was no agreement, express or implied, to maintain the wife, the husband could not be guilty of wilful neglect to provide reasonable maintenance for her.

12. The authorities were exhaustively explained by Lord Merrimen in Pinnick v. Pinnick (1957) 1 W.L.R. 645, where the principle in Baker v. Baker was again followed.

13. In the light of these decisions the question that I have to seek an answer for is whether the parties' consensual separation was attended by an express or implied undertaking on the part of the husband to provide maintenance for his wife. Express undertaking there was none, but in my view there was an implied undertaking made, if not at the time the divorce agreement was entered into, then certainly at the time the separation agreement was executed. By that time, the husband had been paying the wife maintenance each month for two or three months, and this gesture, coupled with his promise to pay her for so long as she remained unemployed, led her to believe that she would continue to receive maintenance from him regularly as before. That her belief was not without ground was shown by his payments to her right up to January this year, with an increase of $100 voluntarily made by him. In these circumstances I feel bound to draw the conclusion that the separation was on the basis that the husband would pay her maintenance.

14. The husband attempts to justify his discontinuance of paying maintence by her intended departure from Hong Kong. Up to the present moment the wife has not been guilty of any misconduct which entitled the husband to revoke his undertaking to provide maintenance. Whether she will lose her right to maintenance if she takes up residence abroad is a hypothetical question which I need not consider in the present proceedings. The position is that up to now she has not done anything to warrant his not providing maintenance for her. For these reasons I find that as from February this year the husband has been guilty of wilful neglect to maintain.

15. It now remains for me to determine the amount payable. Mr. Yu in his submission on behalf of the husband urges the Court to take into account the wife's earning capacity. The wife's allegation of poor health has not been substantiated in anyway and there is evidence (which I accept) that she was able to earn $400 per month when she did work. Against that, the evidence also gives me the impression that when the spouses were cohabiting the husband's financial position was such that he could provide for her without her having to be employed and earn money. Whether or in what circumstances the wife's earning capacity ought to be taken into consideration is not an easy question to answer. The courts are hesitant to lay down any hard and fast rule and the decision on this issue are mostly based on the peculiar facts of the case. However, the judgments in Rose v. Rose (1950) 2 A.E.R. 311, offer a helpful guide. There Somervell L.J. said :-

"I do not propose to consider whether or in what circumstances earning capacity ought to be brought into the calculation in the case of a wife who has not been required to earn any money during the matrimonial life, but, in my view, where during the matrimoninal life the means of the husband were such that the wife was not required to go out and earn money, then, in determining the proper sum for maintenance, it would prima facie seem to be wrong that the husband should be able to say: 'Now you must go out and work, and the only sum I can be ordered to pay is one based on the results of your going out to work, which you did not have to do when you were my wife and which you would not have had to do if I had not committed adultery and broken up the home' - as in the present case. That prima facie approach seems to me to be plainly right in a case such as this, where the marriage had lasted for some twenty years. The wife is a woman of forty-one years of age, who has no normal trade or calling, though, no doubt, she is capable of doing domestic work, and there is a child of some four and a half years of age for her to look after."

And Denning L.J., said :

"A very important matter in awarding maintenance is the conduct of the parties. In this case it has been established that the husband broke up the marriage after twenty-one years of married life, leaving the wife with two children, one of them very young. It was a particularly bad case because the husband committed adultery with a Swiss student help who came to the house. After the divorce the wife claimed maintenance and the question is whether she ought to go out to work. I agree that no general rule can be laid down on the matter, but this wife is certainly under no legal duty to go out to work in order to reduce the maintenance that her husband should pay. It would be quite unreasonable to expect her to do so when she has to look after a young child. If a wife does earn, then her earnings must be taken into account; or if she is a young woman with no children, and obviously ought to go out to work in her own interest, but does not, then her potential earning capacity ought to be taken into account; or if she has worked regularly during the married life and might reasonably be expected to work after the divorce, her potential earnings ought to be taken into account. Except in cases such as those, however, it does not as a rule lie in the mouth of a wrongdoing husband to say that the wife ought to go out to work simply in order to relieve him from paying maintenance."

16. Now the husband in Rose v. Rose was divorced by the wife on the ground of adultery. He was therefore the wrongdoer. In the present case, there is no evidence that either party was guilty of any misconduct and the separation was by consent. She is still a young woman and not tied down to caring for the children, but on the other hand she has never worked regularly before or after her marriage. I think it is right that I should take into account her potential earning capacity, but having regard to all the circumstances of the case I would say that her potential earning capacity should be rated at not more than $300 per month, and this is the amount that I bring into calculation. She was receiving $600 per month from him. Taking into consideration her possible earnings I am of the opinion the amount of the maintenance payable by the husband to her should be reduced to $300 per month. Accordingly, following the judgment of Lord Merrimen in Baker v. Baker referred to above, I give judgment for the plaintiff and order the defendant to pay her $150 for the second half of July, and as from 1st August, $300 per month on the first day of each month. Liberty to apply. Costs of $200 to the plaintiff.

Representation:

Mr. P. Hon (Hon & Co. ) for plaintiff.

Mr. S.C. Yu ( Brutton & Stewart ) for defendant.

Judgment delivered on 15.7.70.