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L v. L

Read the full judgment text of HCMC 187/1969 on BabelCite. This High Court CFI judgment.

1. The parties were married in Hong Kong in February 1966 and there is a child of the marriage who is not yet four years of age. The respondent, the husband, was married previously and there is a child of that marriage aged ten.

Case No.HCMC 187/1969
Court
High Court CFI
Date—
Judge—
Case Document
100%Judiciary

HCMC000187/1969

IN THE SUPREME COURT OF HONG KONG

DIVORCE JURISDICTION

ACTION NO. 187 OF 1969

(MISCELLANEOUS PROCEEDINGS NO. 6 OF 1970)

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L v. L

Coram: Briggs, J. in Chambers

Date of Judgment:16th January, 1970.

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JUDGMENT

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1. The parties were married in Hong Kong in February 1966 and there is a child of the marriage who is not yet four years of age. The respondent, the husband, was married previously and there is a child of that marriage aged ten.

2. The petitioner filed a petition for divorce on November 1st, 1969 and at about the same time took proceedings to make the child of the marriage a ward of court.

3. The grounds for bringing the petition are cruelty and sodomy. After the petition was filed but before it was served upon the respondent discussions took place between the solicitors instructed by both parties. From these discussions it was apparent that the petition would be strenuous contested and that a cross-petition would be filed on the grounds of crue. In that event the discretion of the court would be applied for by the respondent in respect of adultery then unknown to the petitioner.

4. The parties have reached an agreement covering the whole of the issues in this case including the custody of the child of the marriage a financial arrangements. Briefly the terms of the agreement are that the respondent shall disclose to the petitioner the information which would have been contained in his discretion statement and will not defend on cross-petition in a suit based solely on that information. The wife will base her petition solely on the ground of the adultery so disclosed and she will not proceed with the other allegations. The wife will have the custody of the child of the marriage with reasonable access to the respondent at all times. The wardship proceedings will be discontinued.

5. In addition the respondent is to establish two trusts, one for the petitioner and one for the child of the marriage. A generous sum is to be paid to the petitioner who agrees not to include a prayer for maintenance in her petition.

6. The parties have come before the court by originating summons under section 15(2) of the Matrimonial Causes Ordinance and in effect ask for the leave of the court to implement this agreement.

7. Since the enactment of this section, collusion has ceased to be an absolute bar to relief. In Nash v. Nash(1) Scarman J. said this:-

"Collusion which contains no genuine offence will no longer debar the court from proceeding to decree: but collusion which is a genuine offence remains objectionable and, so long as it taints a suit, will be treated by the court as an effective bar to relief."

In effect this means that the court has been given a power to decide what is objectionable and what is not objectable collusion. In the exercise of this power the court has a complete discretion but this must of course be exercised in accordance with the authorities.

8. The leading authority as to the exercise of the discretion of the court is Head v. Cox(2). The following is a passage from the judgment of Wrangham J. in that case, a passage which was quoted with approval by Willmer L.J. in Gosling v. Gosling(3):-

"          It is sufficient for me in this case to say that it seems to me that in considering whether or not discretion should be exercised in respect of an agreement of this character, the first matter to which I should direct my attention is the question whether or not the result of such an agreement is likely to be that a result is arrived at in the proceedings contrary to the justice of the case. In other words, I must be satisfied that the court will not, as a result of the agreement, be granting relief for a matrimonial offence which has not occured, or to a party who would not receive relief if the whole of the facts were before the court. Secondly, I think I should direct my attention to the question whether any children of the family, in particular any infant children, might be prejudiced by what was being done. Thirdly, I think I should satisfy myself that the parties in the case have treated the court with complete and unreserved candour."

9. In Gosling v. Gosling(3) Willmer L.J. pointed out that there is no question of divorce by consent. That is not the point. A divorce will not be granted unless a matrimonial offence is proved. And a bargain between the parties will not be a non-objectionable bargain simply because both the parties have agreed to its terms.

10. In the case before me counsel said that the pleas in the petition were in his opinion proper pleas. If the petitioner were to proceed and the respondent were to file an answer and cross-petition, he would have to file a discretion statement. At that stage it would be open to the wife to apply to amend her petition to include an allegation of the adultery disclosed in the discretion statement as a further ground in her petition. If this application was successful, which it very probably would be, there would almost certainly be no answer to the wife's petition so amended.

11. In my view the intended agreement between the parties in this case is not objectionably collusive. The parties have been completely candid. The application has been made promptly and in the proper form supported by very full affidavits. The marriage is of very short duration. There is the position of the child to be considered. It clearly emerges from the judgment of M v. M (No.2) (4) that the court will not condone a bargain which contains any element of extortion by one of the parties. The wife is in a very strong position but I am satisfied that there is not the slightest evidence that her position has been used to extort any advantage from the husband. The husband is in a much less strong position and is perhaps not giving up so much as the wife. The agreement contains very proper and extensive arrangements for the support of the wife and child of the marriage. The result of the agreement will be that the petition will be an undefended petition. If the petition is tried in its present form as a defended suit there will be considerable publicity of the evidence called to support the grounds for the petition. This would be objectionable to the parties and, since it would be a matter of record, to the child of the marriage as well, when he is old enough to understand. It is in the interests of all parties therefore that the agreement be implemented. And in my view the implementation of the agreement will not result in a decision "contrary to the justice of the case" in the words of Willmer L.J. which I have quoted above.

12. I therefore grant leave to implement the agreement proposed. This of course does not bind the trial judge. This is made clear in Gosling v. Gosling(3). In that case Willmer L.J. when dealing with an agreement similar to that now before me, said:-

"But I would venture to emphasise once again that our conclusion on this preliminary application does not in any way bind the trial judge. It will still be his duty to decide whether, upon the evidence given, the wife makes out her case. It will still be for him, in accordance with the duty imposed by the statute on the court, to inquire into all the circumstances of the case, and in particular whether any collusion exists between the parties, and to consider whether there are any circumstances which call for the exercise of discretion."

13. In an exparte summons the petitioner further asks the court for leave to file a further petition and that the prayer of the present petition be stayed.

14. This seems to me to be a matter of common sense. The further petition will be a petition based on the ground of the husband's adultery and will be filed as soon as the necessary details disclosed to the petitioner by the respondent.

15. It would be possible to achieve the same result by an amendment to the present petition adding adultery as an additional ground. Then, when the petition came up for trial, the petitioner could elect to call no evidence of the grounds alleged in the present petition. However this would mean that a certain publicity would be given to those grounds which is undesirable, the more especially since the allegations are not to be proceeded with.

16. There will be leave to the petitioner therefore to file a further petition. The prayer in the present petition will be stayed. There will be leave to the parties to implement the agreement arrived at subject to the discretion of the trial judge. I order that the petition be set down in my list. And there will be an order for a speedy trial.

(G.G. Briggs)
Puisne Judge
16th January, 1970.

Representation:

Jackson-Lipkin (Johnson Stokes, & Master) for Petitioner/Applicant.

Mills-Owens (Deacons) for Respondent.

Oral Judgment reduced into writing.

(1) (1965) P. at 269.

(2) (1964) P. 228.

(3) (1968) P. at 12.

(3) (1968) P. at p.19.

(4) (1967) 1 All E.R. p.876.