Yuen Yu Biu v. Yuen Nip Yulandna
Read the full judgment text of HCMC 35/1978 on BabelCite. This High Court CFI judgment was delivered on 22 September 1979.
1. This is a petition by the husband for the dissolution of his marriage to the respondent on the ground that the marriage has broken down irretrievably by reason of the fact that the parties have lived apart for a period of at least 5 years preceding the date of the presentation of the petition, that is, from the 24th day of July, 1972 to the 12th day of August, 1977, the latter date being the date when the petition was filed.
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HCMC000035/1978
Coram: Garcia, J. in Court Date of Judgment: 22 September 1979 ----------------- JUDGMENT ----------------- 1. This is a petition by the husband for the dissolution of his marriage to the respondent on the ground that the marriage has broken down irretrievably by reason of the fact that the parties have lived apart for a period of at least 5 years preceding the date of the presentation of the petition, that is, from the 24th day of July, 1972 to the 12th day of August, 1977, the latter date being the date when the petition was filed. 2. Service of the said petition was not effected on the respondent until sometime in March, 1978, and by her answer, she opposes the grant of a decree on the grounds that the parties have not lived apart for the said five years as alleged by the petitioner and that if a decree nisi were pronounced on the petition, she would suffer grave financial and/or other hardship. 3. A few days before the start of the trial and at the beginning of the trial itself, the petitioner made alternative offers to meet the second of the two grounds advanced by the respondent, either a lump sum payment of $60,000 to the respondent, $40,000 of which was to be paid on the decree nisi being pronounced and the balance of $20,000 by four equal quarterly instalments of $5,000 each payable from the date of the decree nisi and upon the respondent waiving all further claims to future maintenance, or the sum of $1,000 per month as periodical payments, also from the date of the pronouncement of the decree nisi. Neither of these proposals were accepted by the respondent as she considered them to be unreasonable in the circumstances and that such proposals if accepted, would not go towards alleviating the grave financial and/or other hardship she would suffer if this marriage were dissolved. 4. The parties were married in Hong Kong at the Registrar's Office at Victoria on the 31st day of December, 1962 and there is no issue of the marriage. The petitioner is a Clerk of Works Class II in the Housing Authority earning a basic salary of $4,700 in June, 1978 [it would be slightly more than $5,000 per month now] and the respondent was then unemployed, although she had been a telephone operator before her marriage. The marriage appears to have been a happy and harmonious one in the beginning, and because of his employment in the Housing Authority, the petitioner became entitled to housing accommodation from his employers at a modest rent, and sometime in 1970 and onwards the parties co-habited at Flat 34 Tze Wan Shan Staff Quarters, Kowloon until July or August, 1975 when the petitioner finally left the matrimonial home to live with his father. The respondent, however, continues to live in the said premises by herself but she states that the petitioner does return to that home from time to time, although infrequently. 5. The petitioner denies all the allegations made by the respondent made in paragraphs 10 and 11 of her answer, and those incidents, even if true, did not seem to deter the parties from living together in the matrimonial home on terms of some amity, even after the respondent had discovered that the petitioner was having an affair with a Miss Kwok Lai-ying. 6. However, according to the petitioner, the actual break-up of the marriage relationship occurred on the 24th July, 1972 when his affair with Miss Kwok, according to the respondent, was still current. His version of the events which led to the break-up is that prior to his father's leaving Hong Kong for Singapore, his father entrusted his Savings Bank Pass Book and his personal seal with the petitioner for the purpose of (a) depositing proceeds from the sale of shares which he had previously purchased, into that account, and (b) to withdraw money from that account from time to time in order to buy shares on his behalf. During the period prior to July, 1972, both the petitioner and the respondent were buying shares in the Taikoo Dockyard Co., Ltd., and since the respondent did not have sufficient money to pay for her share of the investment and his father was then still in Singapore, he allowed the respondent to make use of the funds in the said Savings Account to buy the shares concerned. It appears that an amount of $100,000 was withdrawn for that purpose and shortly after the purchase, the shares were sold by the respondent without the proceeds or the capital being returned either to the petitioner or credited to the Savings Account. Following this transaction, the respondent and the petitioner went to his father's residence and their discussions centred on his father and three of his partners in a motor garage firm, putting in a bid for a taxi licence, and in order to do this a sum of $50,000 was required to be deposited. The respondent was asked whether she would furnish the $50,000 out of the funds withdrawn from the Savings Account but she refused. An argument ensued between the parties whereupon the petitioner informed the respondent that he did not mind her having taken the $100,000 out of the Account which sum he could repay his father within a period of 5 years but from that day onwards he would neither take care of her nor taken any further interest in her affairs. He says further that from that day onwards they both lived in separate rooms, he had all his meals outside the matrimonial home except for breakfast which he himself prepared, and he also washed his own clothing. 7. The other version which is related by the respondent and which I accept as being the more truthful and reasonable, is that the petitioner's father, being a very strict adherent of Buddhism, after having learnt of the petitioner's affair with Miss Kwok, deposited the sum of $100,000 into his Savings Bank Account, as security for the petitioner's good behaviour in future, and the Savings Bank Pass Book and his personal seal was then handed over to the respondent so that if the petitioner strayed agains, she could withdraw the money from the bank. The petitioner, it appears, continued to associate with Miss Kwok and following the condition upon which the deposit of $100,000 was made, she withdrew the said sum from the Savings Bank Account and spent the money on the purchase of shares and other things. The petitioner's version of this incident is, in my view, incredible, particularly as the respondent, if she had obtained the money unlawfully as he seemed to imply, was not entrusted with his father's personal seal and if money were required for the purpose stated by the petitioner, there was no reason firstly, why he could not have withdrawn the money himself, secondly why he could not have kept the share certificates himself since this was a joint purchase and thirdly why he could not have sold the shares himself or at the very least have the shares bought in his name if money had to be borrowed from his father's account. Moreover, if she had no right to the money at all as he says, it would have been open to the petitioner's father to sue the respondent for the money since he was much in need of it on 24th July, 1972. 8. The parties continued to live in the matrimonial home after 24th July, 1972 and according to the petitioner they lived in separate rooms. This would have been of considerable significance so far as this case is concerned were it not for the fact, admitted by the petitioner, that ever since the parties had moved into the matrimonial home, they had been occupying separate rooms in the flat just to make maximum use of the space provided, except for some occasions when they shared the same room. With regard to his meals, the petitioner's breakfast consisted of a cup of coffee in the mornings which he prepared himself and his lunches were almost always taken outside of the home because of his duties but he says that he had all his dinners outside since 24th July, 1972. He did not talk to the respondent from that date onwards and that the only words passed between them were quarrels. The respondent however says that during the years from 1972 to 1975 she had prepared occasional meals for the petitioner and that she had washed his clothes from time to time. 9. Sometime in 1973, another incident mentioned in the answer took place. His version of the incident is as follows:-
10. Despite all these the petitioner continued to live another two years in the same flat with the respondent and he finally moved out in 1975 to live with his father. It would appear that although he had evinced the intention of having nothing further to do with the respondent or with her affairs from 24th July, 1972, yet from 27th September, 1972 to 2nd October, 1972 when the respondent had to undergo an operation in St. Paul's Hospital he spent a whole day in the hospital with her and visited her every day after work. 11. In the circumstances the question posed is whether the parties had lived apart for a continuous period of at least five years immediately preceding the presentation of the petition in accordance with Section 11A(1)(e) of the Matrimonial Causes Ordinance, Cap. 179. Section 11A(3) provides
Section 2(5) of the U.K. Divorce Reform Act 1969 is in the same terms and this subsection was examined in the case of Mouncer v. Mouncer (1972) 1All E.R. 289 where it was contended that on the true construction of s.2(5), husband and wife were to be treated as living apart unless they fulfilled two separate requirements (i) living with each other; (ii) living in the same household; and that as they had not in any real sense been living with each other they had for the purposes of the Act been 'living apart'. It is held that (i) Section 2(5) of this Act was declaratory of the existing law and did not lay down two separate requirements; the words 'in the same household' were words of limitation and (ii) where, as in the present case, a husband and wife were sharing the same household, a rejection of a normal physical relationship coupled with an absence of normal affection was not sufficient to constitute 'living apart'. In his judgment, Wrangham, J. said:-
12. As to the meaning of Section 2(5) of the Act, he says:-
13. The section came up for interpretation again in Fuller v. Fuller (1973) 1 W.L.R. 730 when the parties separated in 1964 after 22 years of marriage. The wife went to live with Mr. P and she became known later as Mrs. P in 1968. After a serious illness, the husband was told that he must not live alone and so he went to live with Mr. P and the wife, although the two continued to sleep together. The husband paid the wife £7 a week for board and lodging and the wife cooked his meals and did his washing. The wife petitioned for divorce under Section 1(2)(e) which is similar to Section 11A (1)(e) of the Matrimonial Causes Ordinance. In his judgment, Lord Denning, M.R. said:-
14. The facts of Fuller v. Fuller are in a way unique but in the present case could the parties be said to have been living apart as from 24th July, 1972. In my opinion they were not, and if the petitioner had been minded to, he could very well have left the matrimonial home altogether if he said he was no longer under any obligation to the respondent and was no longer interested in her affairs, to go and live in his father's home, as he did so eventually. Nor was he obliged if he were no longer interested in her affairs to have visited her every day during the period she spent in hospital at the end of September, 1972. Despite what he says, he nevertheless kept up payment of the rent and other outgoings in respect of the maintenance of the flat, e.g. the telephone, and from the evidence, I think he still does so. In the result, the petitioner has not satisfied me that he has lived apart from the respondent for the purposes of Section 11A (1)(e) of the Matrimonial Causes Ordinance, Cap. 179 for the requisite period for a decree to be pronounced on his petition. The petition may be dismissed on this ground alone. 15. In respect of the additional ground, that is, grave financial and/or other hardship on which some comment should be made, 16. Section 15B of the said Ordinance reads as follows:-
17. The respondent contends that she would lose benefits under the Widows and Orphans Pension Scheme of which the petitioner is a contributor and she alone the beneficiary, and she would also lose the entitlement to live in her present matrimonial home, if her marriage to the petitioner were dissolved. She complains of grave hardship in this regard in view of her inability to earn a high income to pay for the present exorbitant rentals in Hong Kong even for a much reduced living area. I do not doubt that this could be a hardship difficult for her to overcome even if she were to accept the proposals made by the petitioner, that is, the sum of $1,000 per month as periodical payments or a capital sum of $60,000 which at present rates of interest would yield a net income to the order of approximately $600 per month. The petitioner is not provided with departmental quarters in his post of Clerk of Works II of the Hong Kong Housing Authority, but he nevertheless has had allocated to him housing accommodation, that is the present matrimonial home, at a low rental since 1970 and there is every likelihood that so long as he is still holding that post and his marriage subsists, the respondent could still be permitted to reside in the said premises. 18. With regard to the benefits accruing to the respondent under the Widows and Orphans Pension Scheme of the Hong Kong Government, the registered annual pension payable to her, and such benefits are only payable on the contingency of the petitioner's pre-deceasing the respondent, is $15,154,38 as at 1st January, 1978, but again such benefits would immediately cease upon the marriage being dissolved on the present petition, Here again his proposal of the payment of a lump sum of $60,000 to the respondent upon a decree nisi being pronounced, would, as I have mentioned earlier yield no more than approximately $600 per month at the present rates of interest a sum very much below the benefits under the said Widows and Orphans Pension Scheme and one which to my mind is unreasonable in view of the circumstances, taking into account the limited earning ability of the respondent and the wide gap between what has been proposed to mitigate what would be a grave financial hardship for the respondent if her marriage were dissolved and the benefits which would otherwise accrue to her. In Le Marchant v. Le Marchant (1977) 3 All E.R. 613, it was said by Ormrod, L.J. that this type of petition should be approached as decided in Parker v. Parker, that is, that the answer should set up a prima facie case of financial hardship then the petition should be dismissed unless the petitioner can meet that answer in his reply by putting forward a proposal which is acceptable to the Court as reasonable in all the circumstances and which is sufficient to remove the element of grave financial hardship which otherwise would lead to the dismissal of the petition. 19. Even if the petitioner had succeeded in convincing me that he had lived apart from his wife for a period of 5 years to comply with the provision of Section 11A(1)(e) of the Ordinance, nevertheless the petition would have been dismissed on the ground that grave financial hardship would be suffered by the respondent if a decree were granted, since the proposals to mitigate such hardship are in my view, unreasonable having regard to all the circumstances of the case. 20. For the abovementioned reasons, this petition is dismissed with costs to be taxed.
Representation: Mr. Wesley Wong instructed by Victor Ng & Co. for petitioner. Miss C. Remedios instructed by W.I. Cheung & CO, for respondent. |