Ta Tran Thi Thanh v. Ta Van Hung and Another
Read the full judgment text of FCMC 1412/1981 on BabelCite. This Family Court judgment before Judge Wane.
Divorce – Jurisdiction – Substantial connexion – Matrimonial Clauses Ordinance Cap. 179 – Vietnamese refugees – Transit camp – US visa – Adultery – Whether Court has jurisdiction – Court finds sufficient connexion established – Jurisdiction established.
Legal issues: Jurisdiction under Matrimonial Clauses Ordinance
Outcome: Court finds Petitioner has established a sufficient connexion with Hong Kong and accordingly that the Court has jurisdiction to deal with this case.
Cited by 17 cases
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FCMC001412/1981 IN THE DISTRICT COURT OF HONG KONG HOLDEN AT VICTORIA DIVORCE JURISDICTION ACTION NO. 1412 OF 1981 -----------------
----------------- Coram: Judge Wane in Court. Date of Judgment: 7th October, 1981. ----------------- RULING ----------------- 1. This is a petition for divorce on the grounds of adultery between the husband Respondent and the 2nd Respondent. The question is whether this Court has jurisdiction to deal with the petition. 2. All parties are Vietnamese refugees who arrived in Hong Kong on 15th October 1980. They have lived in a transit camp in Hong Kong ever since. The Petitioner and 1st Respondent were married in Vietnam on 18th December 1969 and have three children aged from 10 to 2 years. The Petitioner alleges that from February 1979 up to the date of the petition, the 14th July 1981, the Respondent has been committing adultery with the 2nd Respondent in Vietnam and presumably in Hong Kong. 3. Since his arrival in Hong Kong the Respondent has applied to the American Consulate General here for visas enabling him and the 2nd Respondent to to enter the United States of America. He was refused. The Petitioner then applied for similar visas for herself and the three children. She has been informed that her application will not be considered unless and until she obtains a diverce. The rationale of this apparently arbitrary decision would appear to be that the American policy is to admit only a complete family, not part of it, and as the husband has already been rejected the remaining family members are not acceptable. 4. The Petitioner's purpose in obtaining a divorce is clearly to open the way to an American visa. It is by no means certain however that she will in the end be granted a visa even after a divorce. In the meantime she must remain in Hong Kong. 5. The question is whether in these circumstances either of the parties to the marriage had "a substantial connexion with Hong Kong at the date of the petition" See 3(c) of the Matrimonial Clauses Ordinance, Cap. 179. 6. Counsel referred me to the case of Savournin v. LAU Yat-fung (1971) HKLR 180. There is also the case of Griggs v. Griggs (1971) HKLR 299. Both were decisions of Briggs J. as he then was. There appear to be no other Hong Kong authorities on this point. 7. In each case Briggs J. accepted that the circumstances were such as to enable him to find "substantial connexion". In Savournin the husband had been living in Hong Kong for 5 years, he had substantial business interests in Hong Kong, the marriage took place in Hong Kong and the matrimonial home was in Hong Kong. The wife was Chinese. She had lived in Hong Kong for 23 years and still remained resident and working here. It was with respect not difficult to find substantial connexion in those circumstances. 8. The Griggs case was as Briggs J. said "a much less strong case" than the former. The parties had come to Hong Kong only 16 months before the petition was filed. They were domiciled in the United Kingdom and the learned judge held that they had not abandoned their domicile of origin. But it was accepted that the husband of petitioner had on arrival leased a flat for 3 years and that although as a musician he would tour around Asia for much of his time he was using Hong Kong as a base or centre. 9. In neither case would the learned judge lay down any general principle as to what is a "substantial connexion". Each case was to be decided on its own facts. 10. He did however indicate that it would not be acceptable to apply the phrase to those who "came here to take advantage of this provision of the Hong Kong law" to obtain a divorce that would not be available say in the United Kingdom. That is clearly not the case here. 11. His Lordship felt assisted by a number of English cases dealing with the words
12. This principle has been applied in Angelo v. Angelo (1967) 3 All E.R. 314, Mayfield v. Mayfield (1969) 2 All E.R. 219, Welsby v. Welsby (1970) 2 All E.R. 467 and Hornett v. Hornett (1971) 1 All E.R. 98. 13. Although all of these cases are centred around the issue of whether or not foreign divorces should be recognised in the English Courts and the decisions are therefore obiter dicta here they are helpful in showing the increasing acceptance by those Courts of the view that the words "substantial connexion" should be interpreted in a common sense and liberal way. One can glean from them that, so long as the parties are not seeking to take advantage of the law to obtain what would not otherwise be proper in the English Courts, comparatively little need be proved, provided that what is proved points to some real connexion. 14. In Stroud's Judicial Dictionary 4th Edition Vo1. 5 at 2655 'substantial' is said to "have no fixed meaning and to be an unsatisfactory medium for carrying the idea of some ascertainable proportion of the whole Terry's Motors Ltd. v. Rinder (1948) SASR 167. 15. In R. v. Lloyd (1967) 1 Q.B. 175 quoted in Stroud at p.2657 the word "substantial" in the expression "substantially impaired" does not mean trivial or minimal; neither does it mean total". 16. Applying these views to the present case we remain in some difficulty. The Petitioner came to Hong Kong unwillingly and does not wish to stay here. Her Petition is avowedly to facilitate her departure. On the other hand she has remained in Hong Kong so far for 11 months and is compelled to remain here until she finds a country prepared to accept her children. A family where there is no breadwinner will not find easy acceptance anywhere. From the time already spent here one can infer that no country other than America will have them and America will not even consider the grant of a visa while she remains married. Even if divorced she has no real expectation of a visa. In the meantime her husband has been refused entry to America. In these circumstances she and her children may well have to live here for the rest of their lives. If they have no substantial connexion with Hong Kong in these circumstances when if ever will they acquire it. 17. One thing is certain. The marriage has failed and Petitioner is left on her own to care for the children. It is in Hong Kong's interest to give her the opportunity to find a permanent home elsewhere. Whether she goes or stays it is in her best interest to be freed from her failed marriage and thus be able to remarry if she so wishes thereby providing the children with a father figure to assist them in the difficult process of growing up in a strange country. No injustice arises and no one is prejudiced if a diverce is granted. Considerable hardship and mental anguish must result over a long period if it is refused. 18. In these special circumstances, I find that the Petitioner has established "a sufficient connexion with Hong Kong at the date of the petition" and accordingly that the Court has jurisdiction to deal with this case.
Representation: Miss B. Chu of Helen A. Lo & Co. for Petitioner. Respondents TA Van-hung & Tran Thi Thinh in person. |
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