Kwan Bui Lock v. Isabelle Stamm Lock

DCMP000106/1979

IN THE DISTRICT COURT OF HONG KONG

HOLDEN AT VICTORIA

CIVIL JURISDICTION

Miscellaneous Proceedings No.106 of 1979

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Coram: Judge Jones in Chambers.

Date of Judgment: 18 May 1979

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DECISION

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1. This is an application by the husband for leave to file a petition for divorce within three years of the marriage under Section 12(2) of the Matrimonial Causes Ordinance. No notice of intention to defend has been given by the respondent.

2. The parties were married on the 1st July 1977 in Switzerland. The respondent is a Swiss national. After the marriage the parties cohabited in Hong Kong. There are no children of the family.

3. When the parties first met at the beginning of 1977 the respondent was working at the Kokusai Nightclub in Kowloon, but she left this employment in March 1977. Difficulties arose in March 1978 when the respondent complained that Chinese people were unfriendly towards her and she said that she wanted to leave Hong Kong. Subsequently the respondent paid visits on her own to Bangkok and Nepal. Upon her return to Hong Kong she caused distress to the applicant by informing him about men whom she had met in these places. On the 1st May 1978 the respondent wrote a letter to the applicant informing him that she wished to live separately. The applicant made attempts to persuade the respondent to resume cohabitation, but without success. On about the 6th May 1978 the applicant discovered that the respondent was working again at the Kokusai.

4. The parties entered into a separation agreement on the 23rd May 1978.

5. In June 1978 the respondent commenced to work as a nightclub hostess in Japan. On four occasions since that time she has visited Hong Kong and stayed with the applicant, the last time being in February 1979.

6. In December 1978 the applicant learnt that the respondent had committed adultery with the proposed co-respondent.

7. In support of this application there is a medical report from Dr. David Chan dated 27th March 1979. Dr. Chan has treated the applicant for a speech problem since August 1976. He said that the applicant's condition improved until his marriage when he became less regular in his appointments. Since May 1978 the applicant became extremely nervous and depressed. His condition deteriorated rapidly and he appeared to be under severe stress and strain which Dr. Chan attributed to his marital problems. Dr. Chan is of the opinion that the applicant's condition will continue to deteriorate irrespective of treatment until his marriage is dissolved.

8. Mr. Rodway who appeared for the applicant concedes that this is not a case of exceptional depravity on the part of the respondent, but maintains that the applicant has suffered exceptional hardship. It is clear that there is no reasonable probability of a reconciliation.

9. Brewer v. Brewer (1964) 1 All E.R. 539 decided that discretion to grant leave should not be exercised unless there is a provisional finding of fact that the case is one of exceptional hardship by looking at the facts from the view of both parties. The test to apply is a subjective one see Hillier v. Hillier and Latham (1958) 2 All E.R. 260. In that case at page 264 Romer L.J. said:-

"......one should approach each case subjectively, and whatever the position might be in relation to what one might perhaps describe in other connexions as the ordinary reasonable man, if you find a man who is of a particularly nervous or highly strong disposition, and further delay may have a serious effect on him, then it may fairly be said of him that it would be exceptional hardship in his case to compel him to delay and hold up his petition for the full three years........"

10. The medical evidence clearly shows that the applicant's health is likely to deteriorate if his marriage is not dissolved. In addition there is no prospect of a reconciliation. There is no doubt that the applicant's present condition has arisen as a result of the breakdown of his marriage. He will continue to suffer exceptional hardship if he has to wait for another thirteen months before he can file his petition for divorce.

11. Based upon the medical evidence the application for leave is granted. Costs of the application to be costs in the proposed petition. Certified fit for counsel.

Representation:

Mr. Rodway (Ng & Yung) for applicant.

Respondent absent.