Anthony Edward Home Philips v. Hannedore Gudrun Philips

HCMC000140/1968

IN THE SUPREME COURT OF HONG KONG

DIVORCE JURISDICTION

ACTION NO. 140 OF 1968

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

Coram: Briggs, J.

Date of Judgment: 28 December 1968

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

JUDGMENT

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

1. The petitioner seeks to divorce his wife for adultery with a man whose name and address are unknown to him, but who is, of course referred to in the petition. He applies for an order that that man should not be made a co-respondent in the petition. The application being made under the provisions of rule 14(10)(b) of the Matrimonial Causes Rules, 1968.

2. The respondent has confessed to her adultery with this man both verbally to the petitioner and in writing. She has furnished a copy of her written confession to the petitioner. However she flatly refuses to state his name and address.

3. The respondent lives in England and it was there and in Europe that the adultery was committed. The petitioner is domiciled and resident in Hong Kong.

4. When he was in English in September 1968 the petitioner met the man in question when the respondent was present, but she failed to introduce him. The petitioner on two other occasions when he was in England asked the respondent for the name of the man. She refused to divulge this. On his return to Hong Kong the petitioner consulted a firm of solicitors in Hong Kong and they through their London agents attempted to discover the man's name and address. In this they were unsuccessful. In the written confession of adultery which the respondent has furnished the petitioner she states that she does not wish to name the man in question.

5. This application came before the Assistant Registrar who on 19th December refused to make the order sought. Hence this appeal, which is of course by way of a rehearing. Before he can succeed the petitioner must prove that there are special grounds for the making of such an order. This is to comply with section 14(1) of the Matrimonial Causes Ordinance.

6. The Assistant Registrar very properly, if I may say so, put to himself the questions formulated by Willmer J. in Sage v. Sage⁽¹⁾. I think however that he answered his own questions wrongly. The first two deal with whether there are grounds for suspecting that a false case is being presented and with the possibility of connivance. Those two questions must be answered by the court before which the application comes. This the Assistant Registrar did not do. He merely said as to the first that corroboration was particularly important and as to the second that there was no evidence of connivance yet to make the order sought would deprive the court of an opportunity to satisfy itself that there was no connivance. With respect I do not think that the name of the alleged adulterer would be corroborative of the truth of the statement - the very clear statement furnished by the wife. And there is before me no evidence at all that a false case is being presented. Secondly there is no evidence of connivance as the Assistant Registrar points out.

7. The third question is whether the husband has taken all reasonable steps to see if evidence against the adulterer can be obtained. I do not think that the petitioner has to make "exhaustive enquiries" as is suggested by the Assistant Registrar, it is enough that he makes reasonable enquiries. It must be remembered that the adultery on which the petitioner relies is past adultery covering the years 1964 - 1968. It would not necessarily assist now to set private detectives on the track of the alleged adulterer. In my view the petitioner has taken all reasonable steps to secure the evidence he requires. Finally if an order is not made the petitioner will suffer. He is as I have said domiciled and resident here in Hong Kong. It would be very expensive and perhaps futile from this distance to do more than he has done. This was realised by the Assistant Registrar in his decision.

8. The alleged adulterer is a doctor but there is no evidence that the respondent is or was one of his patients. I agree therefore with the Assistant Registrar that there is nothing to suggest unnecessary hardship on him.

9. I am of the view that the petitioner has made out a case for there being special grounds for making the order. The special reasons are that the petitioner is here and the respondent and the man in question are at the other side of the globe, coupled with the insistance of the wife in refusing to name the person. I will therefore reverse the decision of the Assistant Registrar.

10. There will be an order that the man referred to in the petition as being the man with whom the respondent has committed adultery shall not be made a co-respondent in this cause. It follows that there will be no service of the petition upon him.

Representation:

Charles ching (D. Cheung ...(illegible) Zimmern & Co.) for Applicant

(1) (1947) 1 A.E.R. 492.