Simone Renee Rabaud v. Jacques Francois Pierre Rabauld
Read the full judgment text of FCMC 1792/1979 on BabelCite. This Family Court judgment before Judge Jones.
Matrimonial Proceedings and Property Ordinance Cap. 192 s.17 – Matrimonial home – Dealing with property – Intent to defeat claim – Jurisdiction – French Civil Code – Restraining order – Costs reserved – Wife entitled to order restraining husband from dealing with property – Court applies own law irrespective of domicile – Presumption under s.17(3) not rebutted – Husband mortgaged home and drew funds – Costs reserved.
Legal issues: Jurisdiction · Dealing with property under s.17(3)
Outcome: Order granted in terms of summons restraining husband from dealing with property.
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FCMC001792/1979 IN THE DISTRICT COURT OF HONG KONG HOLDEN AT VICTORIA DIVORCE JURISDICTION ACTION NO. 1792 OF 1979 -----------------
----------------- Coram: Judge Jones in Chambers Date of Judgment: 17th January, 1980. ----------------- JUDGMENT ----------------- 1. This is an application by the wife under Section 17(1)(a) of the Matrimonial Proceedings and Property Ordinance Cap. 192 for an order that the husband be restrained from selling transferring disposing of or in anyway dealing in or with the property Flat H, 6th floor, Grenville House, 1 Magazine Gap Road which is the matrimonial home. 2. The parties who are French nationals were married in Paris on the 7th March 1959. There are two children Philippe aged 18 and Nicole aged 8. The husband also has two children by a previous marriage. 3. On the same day that the present summons was filed a divorce petition was issued by the wife on the grounds that the marriage has broken down irretrievably based upon the facts of behaviour and adultery. In the prayer there are claims for periodical payments, a lump sum and a transfer or settlement of property order. 4. As the parties are not domiciled in Hong Kong jurisdiction is claimed on the basis that the wife has been ordinarily resident in Hong Kong for the statutory period of three years immediately preceding the presentation of the petition or in the alternative has a substantial connexion with Hong Kong. The husband has filed an acknowledgment of service in which he states that he intends to defend the proceedings. No answer has yet been filed. 5. The parties are still living at the matrimonial home with the younger child. The elder child is a student at the University of San Diego California. 6. In 1977 the wife issued a petition for divorce on the same grounds as the present petition. However, an agreement was entered into between the parties on the 23rd December 1977 for the purpose of effecting a reconciliation. As a result the petition was dismissed by consent on the 13th January 1978. Under the agreement the husband made a lump sum payment of US$180,000 and HK$100,000 to the wife. 7. The summons was issued ex parte, but when it came before Judge Liu, Q.C. on the 26th November 1979 he adjourned the application directing that it should be heard inter parties. 8. In support of the application there are three affidavits by the wife, and one by the husband. 9. The wife maintains that the husband has been making plans to emigrate to the United States since August 1978. Correspondence between the husband and friends or business associates in the United States confirms these allegations although it is not clear whether the husband's intention is to go alone or with his family. On the other hand the husband denies these allegations, contending that it was his intention to obtain a "green card" to enable his son Philippe to remain in the United States. The husband states that if he is successful he will make a small business investment in the United States which will not require him to leave Hong Kong. 10. At the end of December 1979 with full knowledge of the summons the husband mortgaged the matrimonial home to the Banque Nationale De Paris to secure banking facilities up to a limit of HK$2,000,000. He has drawn on this facility the sum of US$197,000 for the purpose of providing an advance to the daughter of his previous marriage for her forthcoming marriage. 11. Mr. Allman-Brown who appeared for the husband submits that by her failure to mention in her affidavits the payment of HK$1,000,000 to her in 1977 she has been guilty of a material non-disclosure. Whilst it is certainly a matter to be brought to the notice of the Court when the application for ancillary relief is to be heard I do not consider that it is material to the present summons. The court is concerned to decide whether the husband has dealt with the property with the intention of defeating the wife's claim for financial provision subject to the presumption. In any event in the agreement made between the parties in 1977 the wife agrees to give credit for the monies received if further proceedings should be instituted. 12. When the parties were married they entered into a Marriage Contract whereby they agreed to be bound by the separate property system pursuant to the French Civil Code. Mr. Allman-Brown accordingly argued that the Court should not accept jurisdiction. However, it is trite law that the Court will apply its own law irrespective of the domicile of the parties. There is no doubt that this Court can hear the application. 13. Under Section 17(3) of the Matrimonial Proceedings and Property Ordinance where there has been a dealing with property and the court is satisfied that it would have the consequence of defeating the applicant's claim for financial provision it shall be presumed, unless the contrary is shown that the other party disposed of the property with the intention aforesaid or with that intention was about to dispose of or deal with the property. 14. Mr. Jackson-Lipkin for the wife cited Quartermain v. Quartermain(1) where the former matrimonial home had been charged to the bank to secure the husband's overdraft. The bank had forced a sale and there was a profit of 㾶,000. There was no direct evidence that the husband was about to dispose or had any plan to dispose of the money but the wife feared that he might do so. Although the bank had caused the sale the husband by charging the property was a party to the transaction. It was held that the transaction was caught by the words 'otherwise deal with any property'. 15. Mr. Allman-Brown referred to Smith v. Smith(2) where it was held that when considering whether an order should be granted under Section 16 of the Matrimonial Proceedings and Property Act 1970 which is the equivalent of our Section 17 the Court had to be satisfied on the evidence that (1) a dealing with Property was about to take place and that (2) the object of that dealing was to defeat the wife's claim subject to the presumption. As far as the presumption was concerned the Court had still to be satisfied that a dealing in the property was about to take place which was a question of fact and that the objective effect of that dealing would be to defeat the wife's claim. 16. It is quite clear that by his action in mortgaging the matrimonial home to the bank and by drawing on the facility granted to the extent of almost HK$1,000,000 the husband has effectively reduced the amount of any financial provision which might be granted. The reason given by the husband for the withdrawal was most unconvincing. The fears of the wife were well founded and justified by subsequent events. 17. Upon the evidence I am satisfied that there has been a dealing by the husband in the property with intent to defeat the wife's claim for financial provision. The presumption provided by Section 17(3) has not been rebutted. 18. The wife is therefore entitled to an order in the terms of the summons. 19. I will hear the parties as to costs.
Representation: Mr. M.H. Jackson-Lipkin, Q.C. & Miss J. Leong (Denton, Hall & Burgin) for Petitioner. Mr. A. Allman-Brown (Hampton, Winter & Glynn) for Respondent. (1) (1974) 118 Sol Jo 597 (2) (1973) 117 Sol Jo 525 |