C.C.C.Y. v. C.W.L.
Read the full judgment text of HCMC 25/1979 on BabelCite. This High Court CFI judgment.
1. In this suit the wife is petitioning for a decree of nullity on the grounds of wilful refusal to consummate or incapacity to consummate. Alternatively, in the event that the marriage is held to be still subsisting, she seeks a decree of divorce on the grounds of irretrievable breakdown attributable to unreasonable behaviour or desertion.
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HCMC000025/1979 IN THE SUPREME COURT OF HONG KONG HIGH COURT DIVORCE JURISDICTION ACTION NO. 25 OF 1979 -----------------
----------------- Coram: Mr. Commissioner Barnes in Court Date of Judgment: 26th March, 1980 Mr. C. Ching, Q.C., with him Miss J. Leong instructed by Messrs. Edmund Cheung & Co. for the Petitioner. Mr. F. Eddis, instructed by Messrs. Hampton, Winter and Glynn for the Respondent. ----------------- JUDGMENT ----------------- 1. In this suit the wife is petitioning for a decree of nullity on the grounds of wilful refusal to consummate or incapacity to consummate. Alternatively, in the event that the marriage is held to be still subsisting, she seeks a decree of divorce on the grounds of irretrievable breakdown attributable to unreasonable behaviour or desertion. 2. The husband by his answer admits non-consummation but denies that it was the result of either wilful refusal or incapacity on his part. He cross-petitions for a decree of divorce on the grounds of irretrievable breakdown attributable to unreasonable behaviour or desertion. 3. The parties went through a form of marriage on 15 April 1971. The husband was a professional man aged 29 and the wife a school mistress aged 27. The husband said that he had not had sexual intercourse for about two years before his marriage but prior to that, during a twelve year period when he was studying in Australia, he had had sexual intercourse on about ten occasions with a number of different girls with whom he had formed casual associationsat social outings. He told the court that in the final days of his courtship with his wife he found that he was no longer being sexually aroused but that his mind was set at ease when he consulted a married friend who assured him that this was a common phenomenon. According to Dr. Green, a psychiatrist called to give evidence on his behalf, the husband told him in a consultation two days before the beginning of the trial, that just before his marriage he had the feeling that he might be marrying "the wrong girl" and was assured by a married friend that this was a common feeling associated with pre-marriage jitters. The wife had had no sexual intercourse at all. 4. On the wedding night the parties retired to their matrimonial home at North Point quite late at night after the wedding festivities had concluded. The husband made advances to the wife who responded compliantly but there was no consummation because, in the words of both, the husband "achieved only a partial erection". The wife said that she accepted the husband's explanation that this failure was due to fatigue because she felt tired herself. She therefore readily agreed to his suggestion "to try later". The husband said that this first failure on his part aroused anger in the wife who upbraided him by saying : "Everyone else can do it why not you ? You must be abnormal". He said that he "felt strange" and thought that the reason for his failure was the debilitating effect of the excitement connected with the occasion and the fatigue caused by long attendance at the festivities. He suggested that they "trv later" and the wife agreed. 5. The parties are in conflict in their evidence about when the next attempt at consummation was made. The wife said that it was not until two or three weeks later when the parties went to stay one night over a weekend at the Pearl Island Hotel. The husband, however, said that he made several attempts to consummate the marriage between the wedding night and the parties' stay at the Pearl Island Hotel. He said that on each of the two nights following the wedding night he attempted but could achieve "only a partial erection" and so was unsuccessful. The wife's reaction, he said, was very unsympathetic, and she said to him: "You must have fooled around too much and ruined your health. You are too clumsy". This made him "feel guilty" because she was blaming him for not being able to consummate the marriage. On the third night he suggested to her that perhaps he was trying too hard and that it would be better to try again in a few days time. About a week after the wedding he tried again and was unsuccessful. On this occasion the wife became very angry and told him that as he was impotent he should not have married. In reply he said that perhaps it was not all his fault whereupon she became very angry and slapped him. This shocked him. He had never been treated like that since his childhood days. The wife then, however, grabbed a pair of small scissors and holding them in a menacing manner uttered a threat to kill him. He was able to pacify her but thought that they should separate. Accordingly he arranged the next day a meeting at which his mother-in-law on bended knees begged him not to separate, apologised for her daughter's conduct and promised that she would not behave in such a way again. He agreed to continue with the marriage. 6. He said that the reason for spending the weekend at the Pearl Island Hotel was that the parties "thought that the change of scenery --- from the noise of North Point -- might be more conducive to having proper intercourse". Both parties agree that again there was an unsuccessful attempt due to inability on the part of the husband. According to the husband the wife was unsympathetic and he apologised. The wife said that when the husband was unable to achieve an erection he said that he was very exhausted "because of company business" and that he would "rather adjourn to next time". 7. The "next time" according to the wife was the night before the husband was due to leave for Australia, that is, late January 1972. The parties spent that night at the Hyatt Hotel. The wife's evidence was: "He could only do part of it. He was unable to erect. He was feeling sorry and he said that he was leaving and that it would not be too late to consummate after he returned. He was going for a year. There was no attempt again that night. He left the next day". In respect of this failure he thinks he said: "Maybe it's the excitement of departure [tomorrow]". He, however, did say that he had attempted to have sexual intercourse with the wife in the meantime. He also failed in those attempts. On some occasions the wife remonstrated with him but sometimes she accepted his explanation that he had been working hard and was tired. 8. The husband left for Australia on 26 January 1972. In evidence he said that during the period from the day of the wedding until his departure for Australia the parties had fights but he genuinely hoped that a year's separation would make him "forget the initial events". In paragraph 28(v) of his Answer he alleged that from the time when the wife threatened him with a pair of scissors until January 1972 he attempted to have sexual intercourse with her on a number of occasions but was unable successfully to do so owing to her lack of any sympathy and understanding and owing also to the frequency of the arguments between them which were initiated by her before the parties retired to bed. 9. While the husband was in Australia the parties exchanged letters two or three times a week. The letters written by the husband have been kept by the wife and have been put in evidence. They show that the husband tried to telephone her immediately on his arrival in Melbourne by booking a "person to person" call but a mistake by the telephone operator led to his being put through to her telephone number at a time when she was not available. He wrote the next day ending his letter with -
10. His next letter written two days later discloses that he has received a letter from her written on the day of his departure. As he arrived in Melbourne at 8 a.m. on 27 January he must have left Hong Kong in the evening of 26 January. If the date on her letter is correct -- as it probably is if he received it on 29 January -- then she had written to him within hours of his departure. His second letter goes on --
11. His letters from Australia continued in that vein. She appears to have sent him a "Valentine" card on 14 February that year because he, on 15 February, acknowledged receiving a card, apologised for being unable to get one to send back to her but sent a "Valentine" greeting of his own design saying -
12. Both parties agree that she did visit him at Easter that year. He alleges, and she denies, that when he was driving her into the city after meeting her at the airport they had an argument during which she threatened to jump from the moving vehicle and was in the act of opening the car door as if to carry out the threat when he had to pull to the said of the road and stop the vehicle. Both agree, however, that she stayed for three weeks and the marriage was still not consummated. She said that no attempts were made because he was working during the day and studying at night to complete a difficult course. She said that she sympathised with him, that they were on good terms because she was in love with him and he with her. He said that he did not remember whether or not there were any attempts but he thought there would have been as she had stayed with him for three weeks. 13. After her return to Hong Kong the correspondence resumed with the same regularity and on the same affectionate terms. He concluded a letter dated 2 May 1972 as follows :-
14. In a letter dated 12 June 1972 he wrote -
15. Although the only letters before the court are those written by the husband it is clear from them that the wife was writing to him in similar terms of affection. The husband said in evidence that the outpourings of affection in his letters expressed his real feelings at that time. It is somewhat ironical now, in view of his allegation that before going to Australia his wife made him feel guilty and inadequate, that he should have sent her a birthday message in June 1972 to the effect that she was the kind of wife who made "a husband feel complete". His letters during 1972 are consistent with that sentiment and they show that he regarded her, at that time at any rate, as a patient, sympathetic, understanding and compliant wife. He saw her as a woman of such loving and lovable characteristics that he wanted to build a family around her and spend a lifetime with her. The 1972 letters convince me that the wife was stating the position accurately when she said in evidence that, at that stage, she was in love with him and he with her. In cross-examination she agreed "it would have been terrible to slap him or upbraid him for being unsuccessful" and said that she tried to help him because she thought it was not his fault. She also said that arguments between them did not commence until after his return from Australia. I accept her evidence of their relationship up to the end of 1972. I do not think the husband would have been so fond of her as disclosed in the 1972 correspondence if she had been taunting him about his inability to consummate and been showing lack of understanding of his problem. He does not allege that she became angry at his failure at the Hyatt hotel on the eve of his departure, and he thinks he explained his failure as due to the excitement of leaving the next day. A wife, so tolerant that she evinces no outward sign of frustration on realising that he marriage non-consummated over a period of nine months will certainly not be consummated now for at least another two months, is hardly likely during the first week of her marriage with the prospect of an abundance of opportunity for consummation in the days and weeks ahead, to be so distraught with frustration as to behave in the way the husband has alleged. I do not accept that she did behave in that way. I accept her evidence that on the wedding night when the first attempt at consummation failed she accepted his explanation and that, being tired herself, she had no cause to complain and did not in fact complain. I accept her evidence that no further attempt at consummation was made until two or three weeks later when the parties went to spend a night at the Pearl Island Hotel. Her evidence of his failure to make sexual advances to her during that period is consistent with (1) his own evidence that (a) he was no longer being sexually aroused by her in the final days of their courtship, (b) he believed that there could be a correlation between the noise level at North Point and his own capacity for copulation and (2) his pleading that during that period he "was unable to achieve an erection". I do not accept his evidence that she upbraided him, taunted him and threatened to do him bodily harm over his failure to consummate during that period. 16. The only other disputed allegation of conduct during 1972 is the husband's allegation that the wife threatened to jump from the car in which they were travelling from the airport to the city after her arrival in Australia to visit him at Easter. If his scenario had given this incident a post-1972 setting when their relationship had undergone a significant change it would have been credible. His description of the action he took to restrain her was credibly given but I cannot accept the "where" and the "when". His letters at the time indicate that she was then a well-rounded personality, that she showed no resentment and offered no complaint about enforced separation from him while he worked during the day and studied during his off-duty hours. They go further and show that she reacted in a positive way to solve the problem of her own loneliness while he worked and studied. It is also clear from those same letters that both parties were eager to be together again and that her stay was so successful and so obviously free of hysterical tantrums that, notwithstanding the failure to consummate, they both suffered the agony of separation when she returned to the airport for the flight home. Thus, although part of the "action" appears credible when viewed apart from its setting, once the backdrop provided by the scenario in the letters is added to the scene it loses its credibility. What he alleges is at best a half-truth. The half which I cannot accept is that it happened in Melbourne in 1972. He has alleged that it did and she has denied that allegation. I accept her denial and find that there was no such incident in Melbourne in 1972. 17. The parties are agreed that the wife visited the husband in Melbourne again towards the end of 1972. At that time he had passed his examinations and he had his feet firmly on the ladder of success. He had a holiday from his work and they went on a tour during which they stayed at a hotel in a resort area in the Australian bush. There he attempted again to consummate the marriage and failed. Her evidence was that they tried to have sexual intercourse but "his penis could not erect". He told her that he was too happy and excited because he was going to return home soon. He sai in evidence in respect of this failure: "I really don't know why I was unsuccessful". 18. They returned to Hong Kong in January 1973. They lived together in a flat at Happy Valley ("Fine Mansions") until about September 1975 when they moved into another flat at Jardine's Lookout. In about April 1976 hen went to England on secondment apparently with the prospect that if he proved himself capable enough he would be offered a partnership in the firm in Hong Kong. She did not accompany him but she visited him twice for three weeks on each occasion during the year that he was there. He returned to Hong Kong in March 1977 and they cohabited at Jardine's Lookout from then until October 1977. In October 1977 there was an incident which led to their separation and they have been living apart ever since. 19. The wife said in evidence that after their return to Hong Kong from Australia in 1973 they began to have arguments whenever the question of sex was mentioned. The marriage was still not consummated and the husband ceased making any attempt to have sexual intercourse with her. She suggested that he should consult a doctor but he said it was not necessary. She then arranged for them to consult a psychiatrist together but he refused to keep the appointment saying that it was not necessary as he was fit and normal and his failure was caused by work pressure. She then suggested that he consult a doctor overseas. On one of her visits to London she suggested seeing a psychiatrist but he refused to go. Subsequently she suggested that he go to Taiwan to be medically examined and he went. But the marriage was never consummated even though she had on many occasions tried to seduce him "using both words and actions". She said that when he returned from England in 1977 he was made a partner in his firm and the increased pressure of work made him more difficult to live with. In October 1977 she found a packet containing a condom in his briefcase. When she asked him why he had it he said at first that it was for his own use and then subsequently that he "had it for show". An argument followed and he subsequently moved out of the matrimonial home. 20. His evidence was that after their return from Australia arguments between them continued from where they had left off before he left for Australia. He agreed that from sometime before he departed for England in 1976 he had ceased trying to consummate the marriage. Sometimes during these arguments she would sit down, write a "suicide note" addressed to her parents alleging that he was the cause of her death and then act as if she were going to kill herself. At Fine Mansions she had actually reached the point of straddling the verandah railing before he was able to haul her back. Their flat at Fine Mansions was on the 18th floor. On another occasion she had closeted herself in the bathroom at Jardine's Lookout and turned on the gas but he persuaded her to come out. He agreed with her evidence that she suggested consulting a psychiatrist and that he refused to go. He said that he "felt it was not necessary". He also agreed that he went to Taiwan to see a doctor but his purpose was to have a "complete medical examination unrelated to any sexual problems". He said that the background to the condom incident was the suicide note written by his wife on the occasion he persuaded her to come out from the bathroom. On previous occasions when she had threatened suicide she had destroyed the notes after he had pacified her. On this occasion she threw the note in a waste-paper basket and he subsequently retrieved it and put it in his briefcase with the intention of locking it away in his office to be kept as evidence to show that she did threaten suicide. It was not until several days later that he remembered that he had put it in his briefcase. He then went to retrieve it and discovered it had been removed. Annoyed because he suspected that she had removed it and destroyed his evidence of her hysterical behaviour he bought a condom and put it there with the intention that she should find it. When she did find it she asked him what it was for and he replied: "What do you think?" She then became hysterical and threatened him with a chopper. He was able to wrest it from her. She then uttered a threat that he had better be careful when he went to sleep. He then packed his belongings, left the flat and went to stay at the Lee Gardens Hotel. 21. When the husband was in England in 1976/77 the parties corresponded. The husband's letters during this period have been put in evidence. They reveal that the exchange of letters was far less frequent than in 1972 and he is far less affectionate. They also reveal that their relationship is not as harmonious as before, that the wife is expressing dissatisfaction with the unusual nature of their marriage and that they have been experiencing "marital problems". The correspondence supports the wife's version that their arguments began after their return from Australia in early 1973. It is understandable that their relationship would be under some strain from that point onwards. He had promised her in June 1972 that they would have a baby after his examinations. They went to a resort area for a "second honeymoon", as she called it, where everything must have seemed to both of them to have been in favour of a successful effort on his part. There was the euphoria he was experiencing as a result of having passed his examinations; there were no tiresome festivities to attend, no fatiguing social calls to make; they were "far from the madding crowd" and he was free of business pressures. He says now that he really does not know why he failed then. She must have been equally puzzled. In whatever way she managed to rationalise that failure she must subsequently have had the recurring nightmarish thought: "If he could not do it under those conditions, under what conditions this side of the Garden of Eden will he be able to do it?" She said in evidence, and I accept that she truthfully said, that she was prepared to go on with the marriage if the cause of his failure was his lack of robust health but that if the cause was psychological she saw no point in going on. Her conduct during the "condom incident" is consistent with that attitude. Her finding of it and his reaction when she asked him about his purpose in having it could have had no other effect-and he must have known that it would have no other effect-than to provide her with proof which she would find convincing that his inability to consummate was not physical but psychological, that he could do it with other women but could not do it with her. Although she, in her shock at finding it, may not have noticed that the packet which contained one condom proclaims that it should contain three, the fact that he used such a device indicates that he wanted her to conclude that he had already used two rather than that he might be hoping to make use of one. In any event the device worked because she did see it as convincing evidence that he had been "cheating" her. There is conflict in the evidence about what happened after that. I accept that she reacted hysterically because I cannot see how it would have been possible for her to control her emotions. There is, however, no conflict in the evidence that from that point onward she has never resiled from her resolve to terminate the relationship. 22. The parties were examined on 24 December 1979 by medical inspectors appointed pursuant to the Matrimonial Causes Rules. Their findings in respect of the husband are that "he is normally formed and is apparently capable of consummating the marriage", and, in respect of the wife, that "she has never had normal sexual intercourse and that there is no impediment on her part to the consummation of the marriage." 23. Dr. Green's evidence was that as a result of consultation and examination of the husband two days before the trial began he could find no physical or neurological explanation for the husband's impotence. He came to the conclusion after hearing the husband's history of his pre-marital sexual experiences, his fear before the wedding ceremony that he might be "making the wrong choice of a life partner", his consumption of alcohol at two wedding receptions before the first attempt at consummation and from reading certain affidavits filed by the parties at an earlier stage of these proceedings that the cause of his failure to consummate was psychological. In the last ten years or so, he said, behaviour therapists have found that this type of impotence arises from anxiety and tension and that it follows a "spiral pattern". The fear of impotence creates further impotence, so that once started it becomes very difficult to treat properly. Being a "learned response" type of condition it can be very specifically related to one particular person or to one particular situation. As the fear of impotence creates further impotence another factor then obtrudes - the lowering of self-esteem. With the continued lowering of self-esteem a further factor is introduced, "the so-called avoidance response", the tendency in human beings to "avoid those things which inevitably lead to failure". He thought that the failure on the wedding night could have been due to the consumption of alcohol at two wedding reception earlier because alcohol does tend to reduce sexual capacity. His oeverall opinion was that the husband's case was the "typical case of impotence in a marital situation". In this type of case "there is very rarely a spontaneous remission of the condition with the same partner". Improvement requires a change of partner or treatment by behaviour therapists. There were, however, some woman, he said, who become sexual therapists in this situation instinctively. He said that a slap on the face after failure "would be devastating for someone impotent". If a wife cried in the same situation this would cause a lowering of the husband's self-esteem. On the other hand, if the wife adopted an attitude of patience and sympathy she would be putting an impotent husband on the "springboard to recovery". In this particular case, he said "a sympathetic approach by the wife after the failure on the wedding night might have worked". 24. In cross-examination the husband had agreed that he was impotent as regards his wife. At one stage he said "Even up to now I do not think that the failure to consummate was her fault but mine". He immediately corrected that to say that he meant that up to the stage their relationship had reached before he went to England when no attempt was being made at all to consummate the marriage he believed that it was his fault and not hers and from then on "perhaps it was nobody's fault". He added that his "honest belief" after his consultation with Dr. Green was that his inability to consummate stemmed from his experiences on the first couple of nights. 25. The marriage, having taken place before 1 July 1972, is subject to the provisions of section 20 of the Matrimonial Causes Ordinance before that section was amended in 1972 (33 of 1972, s. 26(2)). The material parts are as follows :-
26. Until the Nullity of Marriage Act 1971 the law and practice in nullity cases were governed partly by the law and practice of the pre-1858 courts and partly by statute. (Halsbury, 4th edn., vol, 13, pp. 259-60). The law and practice of the pre-1858 courts applied in respect of the ground set out in s.20(2)(e), it being a ground recognised by those courts. What had to be shown was that the respondent was incapable of consummating at the time of the marriage, that the impediment to consummation had continued ever since (Greenstreet v. Cumyns, (1812) 2 Hag. Ecc. 523; 161 E.R. 1062) and that it was incurable (Brown v. Brown, (1828) 1 Hag. Ecc. 523; 162 E.R. 665). It was not necessary to prove a physical structural defect so long as it was shown that "connection was practically impossible, or that it was only practicable after a remedy has been applied which the petitioner could not enforce, and which the respondent, whether wilfully or acting under the influence of hysteria, was determined not to submit to "(G. v. G., (1871) L.R. 2 P & D 287). In the Ecclesiastical Courts "non-consummation was by law attributed to the impotence of the husband" where the wife was proved to be a virgin and "a perfect woman" after a cohabitation of at least three years (N. falsely called M. v. M., (1853) 2 Rob. Ecc. 625; 163 E.R. 1435, 1439 per Dr. Lushington). The rule was, however, re-stated some years later as a rebuttable presumption of fact when the House of Lords held that proof that a wife was virge intacta et apto viro after a long period of cohabitation threw upon the husband the onus either of disproving the facts, or of showing by clear and satisfactory evidence that non-consummation was attributable to other causes than his own impotency (Lewis falsely called Hayward v. Hayward. (1866) 35 L.J. (N.S.) PM&A 105). 27. The husband having admitted the facts of long cohabitation and non-consummation in his pleadings counsel for the wife submitted in his opening that there was no defence because on the admitted facts the inference was that either he was impotent at all material times, or he had wilfully refused to consummate the marriage. At the conclusion of the evidence, the husband having added an admission of impotency quoad hanc, counsel for the wife in his concluding address submitted, in effect: "Q.E.D." 28. Counsel for the husband put forward three defences. One, that non-consummation was due to causes other than the husband's impotency; two, that his impotency was not incurable; and three, that there was an absolute bar to the decree of nullity by virtue of section 20(3) of the Matrimonial Causes Ordinance. 29. As to the first defence, if I am paraphrasing the submission accurately, it was to the effect that the wife's conduct was so off-putting that she was, in effect, discouraging consummation. For this submission to have any merit at all the husband's version of their relationship during its early years would have to be accepted. As already indicated I do not accept it. I find that the wife did all she could to encourage consummation. I draw the inference which Dr. Green drew that the husband lacked, as he himself admitted, the sexual power to consummate and that if he had not been impotent the marriage would have been consummated. I find that the marriage was not consummated and that the cause of non- consummation was his incapability of consummating it. 30. As to the second submission, it is true that there is evidence that the husband's condition might have been cured. One possible cure, according to Dr. Green was a change of partner. We do not know whether the wife would have agreed to that because it was never suggested by the husband. Nor do we know if the husband would have agreed to it. In any event, in the present state of our matrimonial law it is probable that it would be held to be an impractical cure for his impediment. 31. The other possible cure was through "sexual therapy". This remedy could be applied either through consultation with a specialist in behaviour therapy or by the wife acting "instinctively". The wife's evidence is that she tried to seduce him, I accept that she did and that whatever she did was done to the best of her ability. It would not be reasonable to expect that a woman who was a virgin in her late twenties during the early part of the 1970's should know instinctively then how to cure impotency when behaviour therapists did not make the findings outlined by Dr. Green until the late 60's or early 70's. In any event, according to Dr. Green, "this typical case of impotency in the marital situation once started is very difficult to cure". From what the husband told the court his impotency began before the marriage. He said in evidence that he was told and he believed it to be true that it was common for sexual desire to dissipate near the wedding day. This may be true but it does seem to be contrary to ordinary human experience, namely, that desire tends to increase in intensity as the realisation if it approaches. It would be unusual for a man lost in a desert to lose the desire for water on approaching an oasis. This loss of sexual desire by the husband before the marriage, taken with the subsequent failures to consummate, leads to the compelling inference I have just mentioned, namely, that his impotency began before the marriage. Thus, the failure on the wedding night may not have been due to the ingestion of alcohol at all, or may have been only partly due to that. It is more likely a symptom of the "spiralling" progress of his impotency. The wedding night failure could have so increased his fear of impotence as to make it irreversible whatever "therapy" the wife practised. So the only practical cure was through consultation with a specialist. It is common ground that she suggested psychiatric consultation (which could have led to this form of treatment) and that he rejected that suggestion. This, therefore, is a case where consummation was "only practicable after a remedy had been applied which she could not enforce, and which he was determined not to submit to" (G. V. G., supra). I accordingly find that he has been proved to have been incapable of consummating at the time of the marriage and to have remained incapable throughout. 32. Being satisfied that he is and always has been incapable of consummating this particular union with this particular woman I find that he has not wilfully refused to consummate the marriage. 33. His third defence is based on section 20(3) of the Matrimonial Causes Ordinance. That sub-section provides as follows :-
34. By sub-section 6 it is provided that sub-section (3) replaces, in relation to any decree to which it applies, any rule of law whereby a decree may be refused by reason of approbation, ratification or lack of sincerity on the part of the petitioner or on similar grounds. 35. Although this statutory bar was raised during the hearing it was never pleaded. It had been held in relation to the "lack of sincerity" bar, one of the "discretionary" bars replaced by sub-section (3), that it ought to be pleaded if a respondent wanted to raise it (Clark (otherwise Talbot) v. Clark, [1942] 2 All E.R. 540, 545, W. v. W. [1970] H.K.L.R. 4, 12). Sub-section (3) introduces an absolute bar and places the onus of proving the facts to support it on the respondent. It should, therefore, in my view, always be pleaded where a respondent intends to raise it. Although counsel for the wife took the objection that the bar had not been pleaded I have decided, because the presentation of the petitioner's case has not been embarrassed by the failure, to follow the approach adopted by Huggins J. (as he then was) in W. v. W., (supra), of not "shutting the husband out from raising the argument". Having heard the husband's submissions I find that he has not discharged his onus. There is no evidence from which I could draw the inference that the wife ever knew before the "condom incident" that it was open to her to have the marriage avoided. To have that knowledge she would have to know that hers was a grievance recognised by the law and not only that the law provided a remedy for it, but also what that remedy was (W. v. W., [1952] p. 152, 165; Slater v. Slater, [1953] P. 235, 241). Even if that were proved the worst that can be said against her is that she led the respondent to believe that so long as the cause of non-consummation was, to use her words, "physical and not psychological", she would go on with the marriage but if the cause proved to be "psychological" she would not. Her action when she found the condom packet was consistent with that. I take her to mean that so long as the respondent appeared to be incapable of having sexual intercourse with anyone she would go on with the marriage but if his impotency was ever proved to be quoad hanc she would terminate the marriage. The condom packet was the first piece of evidence she ever had that his impotency was, or might be, quoad hanc. Since acquiring that knowledge her conduct has been unequivocal. She has not led the respondent to believe since then that she would not seek to have the marriage avoided. Being satisfied that the case for the petition has been proved I grant to the petitioning wife a decree of nullity. 36. If I had not been so satisfied I would have granted the petitioning wife a decree of divorce because I would have found that the marriage had broken down irretrievably. I would also have found as a fact that the respondent husband had behaved in such a way that she could not reasonably be expected to live with him. I would also have found that the husband had not satisfied the court of any one of the facts mentioned in section 11A of the Matrimonial Causes Ordinance. The husband's cross-petition is dismissed. I declare that I am satisfied that there are no children of the family to whom section 18 of the Matrimonial Proceedings and Property Ordinance applies.
Representation: Mr. C. Ching, Q.C., with him Miss J. Leong instructed by Messrs. Edmund Cheung & Co. for the Petitioner. Mr. F. Eddis, instructed by Messrs. Hampton, Winter and Glynn for the Respondent. |