Ann Virginia Hotung v. Joseph Edward Hotung
Read the full judgment text of HCMC 53/1980 on BabelCite. This High Court CFI judgment.
1. In this painful case, I have been greatly assisted by Mr. Robert Johnson who appears for the husband and by Mr. Swinton Thomas who appears for the wife. Mr. and Mrs. Hotung married on the 3rd August 1970. The husband is about 50 and the wife in her middle forties. Their marriage has been childless but the husband has two sons and two daughters by a previous marriage, and the wife has two sons by her previous marriage.
|
HCMC000053/1980
IN THE SUPREME COURT OF HONG KONG HIGH COURT DIVORCE JURISDICTION -----------------
----------------- Coram: Hon. Fuad J. in Chambers Date of Judgment: 13th October, 1980 ----------------- ORDER ----------------- 1. In this painful case, I have been greatly assisted by Mr. Robert Johnson who appears for the husband and by Mr. Swinton Thomas who appears for the wife. Mr. and Mrs. Hotung married on the 3rd August 1970. The husband is about 50 and the wife in her middle forties. Their marriage has been childless but the husband has two sons and two daughters by a previous marriage, and the wife has two sons by her previous marriage. 2. The wife filed a petition for divorce on the 27th June 1980. On the 14th July she applied for maintenance pending suit and the notice of the application required her husband to provide an affidavit as to his means. On the 15th September 1980, Mr. Hotung applied for an injunction ordering his wife to leave the matrimonial home, and on the 23rd September he filed his answer. Since her husband had failed to produce an affidavit regarding his means, two days later, Mrs. Hotung made application for her husband to be directed to do so, an application which was granted on the 30th September. On the 2nd October Mrs. Hotung applied for two injunctions - one that her husband should be restrained from parting with certain chattels in their house, and the other that he should be ordered to vacate the matrimonial home. 3. This bare recital tells its own sad story. We are here concerned with the two applications relating to the vacation of the matrimonial home which is, by all accounts, and by any standards, a beautiful house. 4. Mr. Hotung's grandfather was born in Hong Kong in 1860 and his father was also born here. He himself was born in Shanghai. He spent some time in Hong Kong during his boyhood and was for a year at the University here - in 1948. He continued his education in the U.S.A. and returned to live in Hong Kong permanently in 1960. It is common ground that he is possessed of an immense fortune. 5. Mrs. Hotung, who is American born, came first to Hong Kong in 1962. She lived here on and off since then, until she settled permanently in Hong Kong upon her marriage. Mr. and Mrs. Hotung bear a proud and illustrious name and are a couple of the highest social standing. 6. The marriage relationship has been somewhat stormy. After a few years of marriage they felt that their children by their previous marriages were a source of discord and that it might help if they lived away from them for a time. Despite this arrangement, the friction they had hoped to remove continued and they themselves agreed to live apart - this was for about a year, in 1975. The marriage finally broke down towards the end of 1979. 7. The husband's affidavit in support of his application is to the following effect. The matrimonial home had been bought and reconstructed by him. He had been advised that his wife had no rights in the house beyond those accorded her under the Matrimonial Proceedings and Property Ordinance and that it was unlikely in the extreme that the Court would transfer the house to her under a final settlement. The marriage had broken down and they were living in an atmosphere of increasing tension. Since it was obviously inevitable that sooner or later his wife would leave the house, he was seeking an order that she should be required to leave within a reasonable time. He had a closer connection with Hong Kong than had his wife. He recognised that he would have to make a proper financial settlement for her in due course, both on an interim and a long term basis, and that he would be responsible for providing suitable alternative accommodation for her. All this he was willing to do. 8. A further matter of particular concern to him were his two daughters. Ann (who is 19½) had been granted a sabbatical year from her university in Massachusetts which she would be utilising to study Mandarin at the University of Hong Kong. (It is my understanding that she has now arrived here). It was his hope that Ann would be able to make her home with him while she pursued her studies, but the present situation in the house was very unhappy for a girl of her age and sensitive personality. Moreover his wife and Ann had never got on well together. 9. As regards his other daughter, Ellen, aged 18½, she had retuerned to the U.S.A. after spending the academic year 1979/1980 in Hong Kong and living in the family home. The affidavit does not reveal specific plans for her, but Mr. Hotung does say that his wife has had a harmful effect on the girl, more particularly by giving her far too much pocket-money, and by encouraging her to flout his authority. 10. Mr. Hotung asks the Court to impose a solution which would enable him to live at home with his children whilst his wife lived elsewhere in accommodation provided and financed by him. The affidavit concludes with a reference to the wounding nature of the allegations in his wife's petition. 11. It might be convenient here to summarise the effect of Mrs. Hotung's affidavit in support of her cross-application. She accepts that there is tension in the home but says that this is largely due of the treatment she has received at her husband's hands. She lives in fear of further violence of the nature particularised in her petition. Tension had also been caused by the very fact of contested divorce proceedings, and also by the fact that her husband was failing to meet his financial obligations. Furthermore, her husband had instructed the domestic staff to be obstructive and hostile and she had been humiliated by his act in forbidding the cook to prepare meals for her guests. He had also locked the main bedroom and the library against her. Since she had virtually been restricted to one bedroom, she had spent most of her time away from home, leaving early in the morning and returning late at night; and she had spent a good deal of time abroad. These absences had been necessitated by her husband's conduct. She made her application with great reluctance. While she had contemplated making such an application earlier, she had been anxious not to make matters worse. She had not wished to initiate proceedings which might have led to her husband having to leave home. 12. However, the affidavit continues, since her husband clearly felt that they should separate sooner rather than later, then he should be the one to leave. Her husband's wealth made it easier for him to find another home. She wanted to remain in her home and was horrified at the very thought of having to leave at his behest at a particularly difficult moment in her life. She had played a considerable part in the building, landscaping and furnishing of the home and was not prepared to accept that a move by her was inevitable. Her connections with Hong Kong were very strong. She agreed an offer had been made to her that she should be provided with alternative accommodation but did not wish to be exposed to the problems and uncertainties of living in a temporary dwelling. Ann, and still less Ellen, should not be allowed to influence the position. In any event, she got on well with Ellen and she denied that she had given her exhorbitent sums of pocket money or had encouraged her to flout her father's authority. 13. The affidavit ends by explaining that while she stayed away from home out of fear of her husband, he, on the other hand, spent a great deal of time abroad on business and on pleasure. He would suffer much less hardship if he were required to remain away. 14. Mr. Johnson began his submission by seeking to emphasise the very great difference between this case and the ordinary sort of case with which the Courts had to deal. He submitted that the husband had taken a very reasonable position. The marriage had undoubtedly broken down. Contrary to his hopes for a quick, sensible divorce, with the minimum of bitterness and heartbreak, the husband had been met by a very lengthy petition containing allegations of such a nature that would result in long drawn-out proceedings. The couple were leading a bizzare life in an atmosphere of increasing tension and unhappiness. She was away for the greater part of the day and used the house for little more than sleeping in. The husband wanted to bring matters to a head and put an end to what had become a charade. He had always been prepared to provide suitable alternative accommodation for her. The presence of Ann in Hong Kong was an important factor in the case. 15. In the forefront of Mr. Johnson's submissions was the fact of the husband's great and unusual wealth. The Court should assess the likelihood of Mrs. Hotung being awarded this very valuable property in a final settlement, for this should have a strong influence on the Court's decision. Recent cases showed that in final awards where very rich men were involved (and he knew of no case where the husband had possessed wealth of the order here) the Courts regarded the one-third rule as inappropriate. While Mrs. Hotung was entitled to fair, even generous treatment, it has highly unlikely, indeed almost inconceivable, that she would be given the house which, in any event, would need a great deal of money to run and maintain. The cases indicated that the wife's needs were paramount and the awards were increased only when the contribution she had made to the marriage was a factor to be taken into account. 16. Thus, in Mr. Johnson's submission, if the Court took the view that the chances of the wife ultimately being awarded the house were remote, it was only fair that she should go. They could not continue to live in the same house together if the realities of the situation were to be faced. There were terrible pressures on both. The inevitable had to be acknowledged. After all she would not be put out in to the street. While putting off the evil day might appear to have some attraction, the situation was getting worse all the time. 17. In resisting the husband's application, Mr. Thomas submitted that an order made at this stage requiring the wife to leave the matrimonial home would have a catastrophic effect upon her. She would be rendered so insecure that she might feel she had to settle at any price. It was most unusual, if not unique, for a husband to apply to a Court for his wife to be removed from the joint home during the pendency of a matrimonial suit. The value of the house was irrelevant - what was relevant was that it was the matrimonial home to which the wife was greatly attached and upon which, in happier times, she had lavished loving care. Far from conceding that it was inevitable that the wife would eventually have to leave the house, it was his submission that there was a strong likelihood that the Court would transfer the house to her as part of the final settlements and this, indeed, would be part of her case at the appropriate time. In view of her husband's enormous wealth, Mrs. Hotung would be asking, in money terms, for much more than the house was worth. A decision which would result in the wife being ordered to leave now would be to gravely prejudice the ultimate result. No offer had been made to the wife about alternative accommodation that she could possibly accept. The house was in every way just as much hers as it was his, save that he had paid for it. She did not enjoy the best of health and the pressure and stresses of these proceedings, which would affect her whole future life, were immense. If the husband really felt that they should separate now, the only chivalrous thing for him to do was to leave the house himself and, with his ample means, find somewhere right for himself and any children he wanted with him. 18. As for the husband's daughters, Ellen was clearly irrelevant and Ann had been living with her mother in America for some years. It would be quite wrong, in Mr. Thomas' submission, to make the wife go on account of her. 19. Mr. Thomas argued that the husband had made out no case at all for his wife to be ordered to leave. She had a right, protected by law, to remain in her home unless cogent and compelling grounds had been shown to require her to vacate it. 20. As regards the cross-application, Mr. Thomas submitted that the evidence revealed incidents of aggressive, hostile and violent behaviour by the husband. Some of the serious incidents were comparitively recent. There was clear evidence of harassment on Mr. Hotung's part. While Counsel would not go so far as to suggest that it was impossible for her to stay, she was living in a very difficult and humiliating situation, and her fear of her husband was well-founded. 21. Counsel cited a number of helpful English cases to me; I do not need to refer to them all. I understand no relevant cases have been reported in Hong Kong. In Hall v. Hall [1971] 1 W.L.R. 404, at page 406, Lord Denning M.R. and Sachs L.J. emphasised that for a Court to turn a party to a matrimonial dispute out of his or her home is a drastic course to take. In Bassett v. Bassett [1975] Fam. 77, Ormrod L.J. pointed out that while this was, of course, true in that such an order was likely to occasion hardship to some degree, varying in gravity from case to case, it had to be borne in mind that to refuse to make such an order might have no less drastic results, if the consequence of refusing to make one would be to inflict severe hardship on the unsuccessful spouse. I will respectfully adopt that approach. 22. It is clear from the authorities usefully drawn together in Walker v. Walker [1978] 1 W.L.R. 533, that in cases of this kind, the Court has to decide (in the words of Geoffrey Lane L.J - as he then was), at page 536 of the report:
23. I will also be guided, in reaching my decision, by the passages from the judgment of Cumming-Bruce J. in Bassett v. Bassett, cited with approval by Ormrod L.J. (who himself had been a member of the Court in that case), at page 538 of the report of Walker v. Walker. It need hardly be said that each case of the kind before me must be dealt with on its own facts. 24. I will say at once that in my judgment it would be dangerous and wrong to base a decision in a case like this upon a prediction of the likely final disposition of the matrimonial home. If a decision were to be founded upon such speculations, however carefully words are chosen to reflect that decision, a spouse ordered to leave would feel, it seems to me with some justification, that the issue had been to an extent prejudged. 25. Nor do I think that the Court should be influenced by the fact that there are ample assets to provide alternative accommodation for one spouse or the other. It seems to me no answer to a spouse who does not want to move, and who should not be required to do so applying ordinary tests, to say that he or she should move because another home can so easily be provided. The matrimonial home is not simply a piece of real estate that can be compared with other property. 26. But here there is Ann to consider. It is perfectly understandable that Mr. Hotung should wish to have his daughter living with him while she spends her year at the University of Hong Kong. Although there is no evidence before me on this point, I may be forgiven for drawing on my own experience and accepting that it might well be that it was convenient, if not essential, in the context of the girl's overall programme of studies at her American university, that she should take the year off now and that it could not have been postponed. She is still under 20 and the present atmosphere in the home may well upset her. Her reunion with her father will not be as happy as it might have been. However I do not think that Ann's presence in Hong Kong can be placed in the scales in weighing what is fair and just between Mr. and Mrs. Hotung. She has not formed part of the household in Hong Kong for some years and in all the circumstances, I have no doubt that it would be absolutely wrong to require Mrs. Hotung to leave on account of Ann's presence in Hong Kong. And on the material before me I am unable to say that Ellen could possibly have any legitimate bearing on the decision that has to be made. 27. The marriage has undoubtedly broken down. There is great friction and unhappiness in the house. However, all the grounds urged upon me on behalf of the husband, taken singly and together, fall for short, in my judgment, of those that would justify the Court ordering the wife to leave the matrimonial home while the divorce proceedings are pending. 28. Now what of Mrs. Hotung's application? I think it can fairly be said that she would not have made it had her husband not moved first. In my view the wording she used at the beginning of para. 8 of her affidavit is important:
29. This, of course, does not disentitle her from succeeding in her application if the evidence warrants it. But I have to bear in mind that the allegations in her petition are strongly contested. Whatever complexion may properly be placed at this stage of the proceedings upon incidents that undoubtedly did occur, Mrs. Hotung has not established that as matters stand she is in need of the protection of the Court to the extent that it is necessary to exclude her husband from their house. 30. For the reasons I have attempted to give, I propose to dismiss both applications. The result (unless other arrangements can be agreed) will be to preserve the status quo, but my decision was in no way prompted by a desire that this should be so. After anxious consideration I came to the conclusion that in all the circumstances it was not fair, just or reasonable to exclude either spouse from the matrimonial home. 31. If I may be permitted to say so, Mr. and Mrs. Hotung are cultured and sophisticated people with great talents and wide interests. It is my hope that in the large house they presently share, they will be able to adapt to a sensible way of life to reduce, as far as possible, the anguish and bitterness that is so apparent. I understand that counsel will be seeking the assistance of the Court to have the hearing of the petition set down for trial as soon as is reasonably practicable. In this they can rely upon the Court's support.
Representation: Mr. Swinton Thomas, Q.C., Mr. Charles Ching, Q.C. and Mr. Andrew Allman-Brown, instructed by Hampton, Winter & Glynn for Petitioner Mr. Robert Johnson, Q.C. and Mr. Gilbert Rodway instructed by J.S.M. for respondent |