Caroline Patricia Rafe v. Nigel Barton Rafe

Case No.HCMC 102/1971

Court

High Court CFI

Date—

Judge—

Case Document

100%Judiciary

HCMC000102/1971

No. 102 of 1971

IN THE SUPREME COURT OF HONG KONG

DIVORCE JURISDICTION

-----------------

BETWEEN
	CAROLINE PATRICIA RAFE	Petitioner
	and
	NIGEL BARTON RAFE	Respondent

-----------------

Coram: Mr. Registrar Jones in Chambers.

Date of Judgment: 16th March, 1974.

-----------------

DECISION

-----------------

1. This is an application by the petitioner to vary the financial arrangements contained in a maintenance agreement dated the 13th November 1970.

2. The court's jurisdiction to alter an agreement during the lives of the parties is set out in section 15(2) of the Matrimonial Proceedings and Property Ordinance Cap. 192 which provides so far as it is relevant to this application as follows:-

'If the court to which the application is made is satisfied either -

(a)

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 (including a change foreseen by the parties when making the agreement), the agreement should be altered so as to make different, or, as the case may be, so as to contain, financial arrangements, or ............'

3. Although the application should be by way of originating application and should follow the information contained in Form 16 set out in the appendix to the Matrimonial Causes Rules the respondent's solicitor did not object to the form of notice issued by the petitioner.

4. The parties were married on the 3rd August 1963 and there are two children of the family, a girl now aged 8 and a boy now aged 7.

5. The main provisions of the agreement which was prepared by the parties' solicitors are set out in clauses 1 and 3 which relate to maintenance, custody and access. By clause 1 the respondent agreed to pay to the petitioner for her support and maintenance a monthly sum of $1,000 during the joint lives of the parties or until the petitioner should remarry or cease to live as a single woman. However, as a proviso to clause 1 it was agreed that the respondent's liability would not accrue if the petitioner did not present a petition for divorce within six months. Clause 3 provided for the respondent to have custody and control of the two children with access to the petitioner. The agreement was sanctioned by the court pursuant to section 15 of the Matrimonial Causes Ordinance 1967 on the 3rd April 1971.

6. A divorce petition on the grounds of adultery was filed on behalf of the petitioner on the 23rd April 1971. A decree nisi was granted to the petitioner on the 24th July 1971, discretion of the court being exercised in her favour in respect of her own adultery committed during the marriage. The decree nisi incorporates the details relating to maintenance set out in clause 1 of the agreement although the wording does not accurately follow that of the agreement. However, there can be no doubt that the court order merely reflected the financial arrangements agreed to by the parties and previously sanctioned by the court. The decree was made absolute on the 28th October 1971.

7. It is significant that after the divorce petition was filed but before the hearing the petitioner's former solicitor in a letter to the respondent's solicitor dated the 20th May 1971 stated that it was not the petitioner's intention to apply to the court for maintenance or any other financial provision provided that the respondent continued to make payments under the agreement. Such an agreement is of course void, but nevertheless shows that the petitioner intended to be bound by the terms agreed.

8. The petitioner bases her application to vary the financial arrangements on the grounds that there has been a change in circumstances. Apart from her application to vary the monthly maintenance the petitioner applies to include in the agreement provisions for the respondent to take out life assurance and medical insurance policies for her benefit. In support of her application the petitioner has filed an affidavit of means in which she says that she is employed as a receptionist earning $1,100 per month so that her total monthly income with the $1,000 payable under the agreement amounts to $2,100. She calculates her monthly expenses to be $2,074. She says that her present accommodation is unsuitable for the children to stay with her for access purposes and that she is unable to afford better accommodation but I do not consider that this complaint is relevant to the application. The petitioner contends that the monthly payment of $1,000 is inadequate having regard to both her expenses and to the respondent's present income which has increased since the date of the agreement.

9. Mr. Cook for the respondent submitted that the figure of $1,000 per month was not calculated on the basis of the respective means of the parties, but was agreed to be the respondent's full liability taking into account the conduct of the parties. It was only having regard to the terms agreed that the respondent says that he was prepared to provide evidence of his adultery in order to enable the petitioner to institute divorce proceedings. Accordingly the respondent contends that the respective financial positions of the parties both now and at the time the agreement was made are irrelevant.

10. It is not in dispute that the respondent has made regular payments under the agreement.

11. Miss Smith for the petitioner submitted that the crux of the issue in deciding the application is the change in financial circumstances. However, I am unable to agree for it is clear that the vital words to be considered in section 15(2)(a) are 'a change in the circumstances in the light of which ......'

12. In K. v. K.⁽¹⁾ Holroyd Pearce, L.J. said:

'........ We think that "a change in the circumstances in the light of which any financial arrangements ..... were made" means something quite outside the realisation of expectations. The parties make their bargain on certain basic facts and expectations. When those facts unexpectedly change or those expectations are not realised, there is then a change of circumstances which may produce unfairness. Had the legislature intended to give a power to the court to vary agreements as it may vary maintenance orders, it could have said so in terms similar to the sections which regulate variation of maintenance. It did not, we think, intend to remove entirely the stability of agreements, but only to do so when injustice was caused by a change in certain circumstances. ......... The wife knew that the husband's income fluctuated widely, and that it would probably increase. The amount of such increase was not specified, but in the context the increase in his income would, we think, have been within the contemplation of the parties. She deliberately chose a fixed sum. Thus she got security by receiving a sum certain, however badly the husband might fare.'

13. In Ratcliffe v. Ratcliffe⁽²⁾ Willmer, L.J. said:

	'........ the court must be satisfied that by reason of the change in the circumstances the agreement should be altered. It is important, I think, to observe that Parliament has said that the court must be satisfied that the agreement should be altered by reason of the change in the circumstances.
	What, then, is meant by the phrase, "should be altered"? I think there is no doubt that "should" in that context is used with the meaning of "ought to be". It is permissible, I think, to refer to the later words in the subsection in order to determine what is the test whereby the court should judge whether the agreement should or ought to be altered; for it is provided that, if the intervention of the court is justified at all, the power which the court has is to make such order "as may appear to the court to be just having regard to all the circumstances". It seems to me that one can infer from that (and the argument has proceeded on this basis) that, before the court can interfere and say that the agreement is one which should be altered, it must be satisfied that, having regard to the change in the circumstances, the agreement has become unjust. Moreover, it must be satisfied that the agreement has become unjust by reason of the change in the circumstances.' In the same case Harman, L.J. at page 998 said:-
	If the change, therefore, is no more than must be contemplated in the course of any two joint lives, then the Act will not come into force at all, as I see it. But if there is a circumstance applying to either party which was not in the ordinary contemplation of the contractors, then the court has jurisdiction. I see no reason to limit that jurisdiction, as we were asked to do, by saying that it depends on the continuing earning capacity of the husband, or the health of the husband, or anything of that sort. It was suggested that, if the husband's income went up, that was a change of circumstance. But if, owing to his voluntary act, it went down, that was not. I cannot accept anything of that. There is no such limitation in the Act.'

14. In determining this application I have adopted the objective approach that was laid down in Gorman v. Gorman⁽³⁾ which is what the parties as reasonable persons must have had in contemplation at the date of the agreement. The agreement was made by the parties voluntarily for good consideration with legal assistance on both sides and received the approval of the court five months after it was executed. Accordingly the petitioner had ample opportunity to reflect upon the advisability of entering into the agreement so that it cannot be said that in all these circumstances she was at a disadvantage. The petitioner chose to accept a fixed income of $1,000 per month which was not based on the means of the parties whilst the respondent obtained his freedom and accepted responsibility to bring up the children. It is a matter for conjecture that as the petitioner had herself committed adultery she may not have been awarded any maintenance had she made a formal application to the court.

15. In so far as it is relevant the petitioner has now an income both from her employment and the regular maintenance that she receives from the respondent and it must have been foreseen by the parties when the agreement was made that the respondent's earnings would increase and likewise the cost of living. However, the change in financial circumstances does not result in the agreement becoming unjust. There is undoubtedly jurisdiction to alter the financial arrangements in the agreement but there has not been a change, adopting the words of Holroyd Pearce, L.J., quite outside the realisation of the expectation of the parties to justify such alteration.

16. The petitioner's application will therefore be dismissed.

17. No order as to costs.

18. Dated this the 16th day of March, 1974.

	(B.L. Jones)
	Assistant Registrar

Representation:

(1) 1961 2 All E.R. at page 269

(2) 1962 3 All E.R. at page 997

(3) 1964 3 All E.R. at page 739