Liu Chu Chic Yee v. Liu Wai and Another

HCMC000004/1969

IN THE SUPREME COURT OF HONG KONG

DIVORCE JURISDICTION

ACTION NO. 4 OF 1969

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Coram: Huggins, J. in Court.

Date of Judgment: 29 October 1969

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JUDGMENT

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Huggins, J :

This is a wife's petition for divorce on the grounds of adultery and cruelty. Counsel for the petitioner has, I think rightly, not pressed the charges of cruelty, for although there is evidence of assaults by the respondent upon the petitioner I think that the conduct of the respondent taken all in all did not amount in law to cruelty.

2. This is an unfortunate case where two incompatible persons have been joined in matrimony at a time when the woman was carrying a child. The parties were married on 25th June 1960. The only child of the marriage was born on 13th January 1961. It is abundantly clear that subsequently the respondent cohabited with Chan Lin-chun and that a child was born of this union on 9th April 1968. Chan Lin-chun is the second respondent to these proceedings. She entered an appearance and her memorandum of appearance indicated that she intended to resist the petition. She has, however, filed no answer and has not attended the trial. I am satisfied that the conduct of the petitioner did not in any way conduce to the adultery and that it is proper to grant a decree nisi of divorce on the grounds of the respondent's adultery with the woman named.

3. The issue which has been most fiercely fought is that of custody. The petitioner asks for custody and it is submitted on her behalf that the respondent is an unsuitable person to have custody. The respondent for his part says that the petitioner is an unsuitable person to have custody. I think it is clear that prior to this marriage the respondent had and association with another woman and that there is a child of that union. Some twelve months after the marriage the woman with whom the respondent had previously associated and the respondent himself signed a document, which has been put in evidence, whereby the parties agreed to live separately and the respondent agreed to pay a sum of money by way of maintenance to the child of the union. The respondent has before me sought to deny that the child of the union. The respondent has before me sought to deny that the child was in fact his but I attach no weight to that denial. In this agreement the parties voluntarily terminated their cohabitation relationship. I am quite satisfied that there was a child of this union and I think it is incredible that the story put forward by the respondent should be true. He contends that, although cohabitation had ceased seven years previously and the two parties had met only on a few occasions quite casually at intervals of two or three years, the woman suddenly appeared and demanded the execution of the document so that she could get married. I do not believe that. In any event the respondent has since been cohabiting with the woman named and he has made some extraordinary accusations against his wife. Although I was of opinion that the conduct of the respondent did not amount to cruelty I accept that the respondent did assault the petitioner and I accept that there have been periods when he provided no maintenance at all for either the petitioner or the child of the marriage. I have no doubt that the petitioner herself can at times show a bad temper but, having regard to all the factors on both sides, I am satisfied that this is a case where the mother ought to have custody of the child.

29th October, 1969.