Ann Winifred Griggs (Nee Sharp) v. Kenneth William Griggs

HCMC000166/1970

IN THE SUPREME COURT OF HONG KONG

DIVORCE JURISDICTION

No.166 of 1970

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Coram: Briggs J. in Court.

Date of Judgment: 14th June, 1971.

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JUDGMENT

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1. This is a wife's petition for divorce on the grounds of the adultery of her husband with a woman named. The petition is not defended. The Petitioner asks for the discretion of the Court in her favour. The parties have reached agreement as to the custody of the children of the family and maintenance for the Petitioner and the children.

2. The parties are English nationals and were married in England on December 26th, 1959. They have four daughters all of whom were born in England, the last being born on January 5th, 1969.

3. There is abundant proof of the adultery of the Respondent with the woman named and, in a voluntary confessional statement he has made it clear that he is anxious to marry her as soon as he can.

4. The sole question to be decided is whether the Court has jurisdiction to entertain this suit.

5. In paragraph 6 of her petition the Petitioner states that "the Petitioner and the Respondent are domiciled in Hong Kong."

6. I allowed Counsel for the Petitioner to amend the petition by inserting a new paragraph 6(a) as follows:

7. The purpose of this amendment was to allow the Petitioner to rely upon the provision of section 3(c) of the Matrimonial Causes Ordinance. This reads as follows:-

"The Court shall have jurisdiction in proceedings for divorce under this Ordinance if either of the parties to the marriage had a substantial connexion with Hong Kong at the date of the petition."

I shall refer to the Matrimonial Causes Ordinance as 'The Ordinance'. If a petition is brought under section 3(c) of the Ordinance it is proper to state in the petition the reasons for which it is alleged that the parties, or either of them have or has a substantial connexion with Hong Kong.

8. Section 3(c) was brought into force on July 10th, 1970. This petition was filed on September 9th, 1970. The provisions of section 3(c) are both novel and startling. And matters move slowly in Hong Kong, so I am not surprised that this paragraph was overlooked. It is now June, 1971 and this case is only the second case which has come before the Court relying upon this paragraph to give jurisdiction to the Court.

9. The Petitioner gave evidence and I will say at once that she was an artless and transparently truthful witness.

10. It is trite law that upon marriage the wife assumes the domicile of her husband. The first point is therefore whether the husband is domiciled in Hong Kong. His domicile of origin is the United Kingdom. The Petitioner in her evidence said that the Respondent frequently told her that he liked Hong Kong and indeed preferred Hong Kong to England and would like to stay here. He is a man of 34 and a musician but not I understand, a classical musician.

11. However the Petitioner does not know if he has any property in the United Kingdom. And of course, I have had no direct evidence either from the Respondent himself or from an independant witness as to his present or his future intentions.

12. Any person may change his domicile of origin and acquire a new domicile by residing in another country with the intention of making that other country his home, of residing there permanently. The best evidence, perhaps, of such an intention is proof that the person has severed connexion with his domicile of origin and has set up a permanent home in the new country of his choice.

13. On the facts before me I am not prepared to say that the Respondent has a domicile in Hong Kong. The Respondent has taken the lease of a flat here it is true but that by itself is insufficient evidence of a desire permanently to reside in Hong Kong and to abandon an English domicile.

14. The second point is has the Respondent a substantial connexion with Hong Kong within the terms of section 3(c) of the Ordinance?

15. The Petitioner told the Court that the Respondent is a musician. At first the marriage was a success and as I have said there are four daughters. The Respondent decided to come to Hong Kong and to secure employment here. And he and the family arrived here on May 21st, 1969. The Respondent was successful and has been continuously engaged in performing at various hotels etc. Upon arrival he leased an unfurnished flat for a fixed period of three years. This became the matrimonial home. The lease will expire on May, 1972. He has fully furnished this flat.

16. The Petitioner said that the Respondent considered Hong Kong to be if not his permanent home at least the place in which he had set up a more or less permanent place of residence. It is a useful base or centre for a person who, like the Respondent, is a practicing musician being, convenient for Bangkok, Taiwan, Singapore the Philippines and Japan etc. He is a British national and as such, has no immigration or work permit problems here. The inference is that he intends to spend a considerable part of his working life here. At present the Respondent is playing in Bangkok where he has a contract to perform. This expires in October 1971. Thereupon he will return to Hong Kong and take up residence in his flat again. All in all he has been ordinarily resident in Hong Kong for two years already, though at the date of the petition he had only been here for some sixteen months. The Petitioner told the Court that the flat was an unfurnished flat. But that the Respondent has furnished it fully. It is furnished as a permanent home and is complete with air conditioner, a television set, furniture, cutlery, glass, linen etc.

17. The Petitioner first learned of the adulterous association of the Respondent in April, 1970. She then moved out of the matrimonial home. However she is at present living there for convenience while the Respondent completes his contract in Bangkok. She will have to leave as soon as the Respondent returns.

18. In Savournin v. Savournin (D.J. 24 of 1971) I referred to the difficulties of the interpretation of section 3(c) of the Ordinance. I pointed out in that case that while it was very difficult to give a definition embracing all those cases where it can be said that a person has a substantial connexion with Hong Kong, it is less difficult to determine when circumstances do not show a substantial connexion. One thing is certain, the parties in the present case did not come here for the purposes of taking advantage of this provision of the Hong Kong law, a provision which would not be available to them, of course, in the United Kingdom. They are not what has been termed 'birds of passage.' The Respondent met the woman named only after he had come to Hong Kong. The marriage did not break up until he had been here for over one year.

19. This is a much less strong case than that which I have referred to above. I have searched the authorities to little avail though some help may be derived from Welsby v. Welsby (1970 2 ALL E.R. 467) which is an application of the principle laid down in Indyka v. Indyka (1967 2 ALL E.R.689).

20. On the balance of probabilities there is evidence to show that the Respondent has intended ever since coming to Hong Kong to remain if not permanently here, at least for a very considerable or substantial time. He has taken and furnished a flat where he set up the matrimonial home. His children have been at school here and he finds Hong Kong convenient as a residence and for the purposes of his occupation. He has been successfully employed here and also finds it congenial. There is enough evidence looked at in this way for me to hold that he has a substantial connexion with Hong Kong in the words of the relevant section of the Ordinance.

21. It is true that at the date of the petition he had only been resident in Hong Kong for sixteen months. But at that time he was the tenant of residential premises leased for three years which shows a prima facie intention to remain for that length of time at the very least. I do not think that the fact that he is now in Bangkok affects the position for that is only a temporary measure consequent upon a contract made in the course of his occupation.

22. I also think that the occupation of the Respondent is of importance. He is a musician. He is obviously not touring. He has come here to reside. From here he will tour but he will return. This is his base. This also helps to show that he has a substantial connexion with Hong Kong.

23. Though I have referred to the cases of Indyka v. Indyka and Welsby v. Welsby these cases are not directly in point. They deal with the recognition by the English Courts of a foreign marriage. The present case is on different ground and virgin soil at that. For the "substantial connexion with Hong Kong" is sufficient to give jurisdiction. I do not intend to lay down any general principle as to what is "a substantial connexion". Each case must be decided on its own facts.

24. It is unnecessary to consider whether or not the Petitioner has a substantial connexion with Hong Kong. She came here as the wife of the Respondent and though she is now working here, she told me that if she were to be granted a decree she hoped to remarry and to return to the United Kingdom.

25. There will be a decree nisi for adultery and there will be leave to make it absolute to-day.

26. The discretion of the Court is exercised in favour of the Petitioner in respect of her own adultery.

27. The Petitioner is to have custody care and control of the children of the family.

28. The Respondent is to have access to the children of the family at all reasonable times.

29. I am satisfied with the arrangements made for the up-bringing and education of the children of the family.

30. Maintenance is to be paid in accordance with the terms of the agreement entered into between the parties dated the 14th day of June, 1971 for which leave to implement was given in chambers on May 14th, 1971.

31. The Petitioner is to have her costs.

Representation:

Asome (David Burgin & Co.) for Petitioner.

Judgment read in Court.