Chau Lam Yuk Sung v. Chau Tai Pay

HCMC000020/1978

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Coram: Mr. Commissioner de Basto, Q.C.

Date of Judgment: 21 December 1979

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JUDGMENT

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1. The wife petitioner in this suit seeks a decree of divorce on the ground that her marriage has broken down irretrievably. In support of that ground the wife pleads that the husband has behaved in such a way that she cannot reasonably be expected to endure cohabitation.

2. The parties were married in 1961 and they have five children ranging in age from 18 to 12 years.

3. In 1973 the husband had a garment business - the wife worked for him and she applied the wages she received to pay the rent and to contribute to the support of the children. Sometime in 1973 the husband lost interest in his business as a result of which the business rapidly deteriorated and finally ceased altogether in mid 1973. The wife said she felt obliged to find, and she did find, another job. However, it seems clear from the wife's evidence that this did not accord with the husband's wishes. On some occasions, when he awoke before the wife, he physically prevented her from going to work, sometimes by locking her in the flat and on other occasions he would meet her during the mid-day break and escort her home and he would then prevent her from returning to work in the afternoon. In addition, the husband used to telephone the wife two or three times a day demanding that she return home. On other occasions the husband spoke to the wife's employer to persuade him to discontinue his employment of the wife. The employer, perhaps not unnaturally, terminated the wife's employment after she had been working for him for about half a month.

4. The wife then secured another job but this, too, only lasted about a fortnight because of similar conduct on the part of the husband.

5. The husband, after his business failed, did not get another job but, instead, to use the wife's words "(he) slept all the time at home". Since the business failed the husband has not given the wife any money. The wife left the husband towards the end of 1973.

6. The wife testified that prior to 1973 the husband wanted sexual intercourse about 3 or 4 times a week. But since 1973 the husband has made inordinate sexual demands. The wife referred to one occasion in early 1973 when the husband insisted on having sexual intercourse several times the same night despite the fact that she was menstruating. This happened on other occasions. On yet other occasions when the wife refused sexual congress the husband would physically force himself on her. The wife said she was physically forced to have intercourse three or four times a week. I think the wife exaggerated the frequency of the occasions when the husband physically forced her into submission.

7. On other occasions when the wife refused the husband's sexual demands he would assault her. Sometimes he would push her off the bed and punch her on the chest. The wife consulted a Dr. LEUNG Kwok-iu. She tried to get this doctor to give evidence but learnt that he had emigrated.

8. In November 1973 the husband forced the wife to swallow 4 or 5 sleeping pills which had been prescribed for her by Dr. Leung. The wife became, to use her expression "unconscious". I am not sure exactly how long she was in that state but whatever the actual period it was a dreadful thing for the husband to do and an action possibly not without some danger. The wife left the husband about ten days after this incident.

9. In the middle of 1974 the husband asked the wife to resume cohabitation. The wife told him she was prepared to try living with him again provided he gave her "a sort of guaranty" that he would not "ill-treat" her again. The wife briefly wrote on a piece of paper (Exhibit P1) her main complaints and she wrote out the conditions under which she was prepared to resume cohabitation. I set it out here in full:

"You were too barbarous to me in the past, frequently scolded me or assaulted me. Every night I was disturbed in my sleep and as a result I became listless. I was forced to take an over-dosage of sleeping pills. I slept for two whole days and was unconscious. You did not go to work. I cannot bear your attitude. That is why I left you. I can return home to see you provided you promise me the following terms:-

If you do not accept the above terms we shall go different ways".

10. The wife identified the husband's signature on that document and I think it highly likely that the husband signed his name to that document to indicate his willingness to abide by the conditions for the future set by the wife and at the same time acknowledging a state of affairs that had existed in the past.

11. The husband came to live with the wife at her mother's home but he left after a few days because, to use the wife's words, "he did not behave very properly" and the wife's mother was not happy having him stay in her house. During those few days the parties did not have sexual intercourse.

12. The wife's mother gave evidence and she referred to an incident in June 1974. Her daughter was out. The husband arrived and he had with him an iron bar, a pair of large scissors and a bottle. He tried to prise open the door which he damaged and he also broke some windows with the iron bar. This attracted the attention of the caretaker who contacted the police. The husband was arrested and taken to the Tsuen Wan Police Station.

13. I accept the evidence of the wife and her mother. I have no doubt that the conduct of the husband which I have outlined above was such that the wife ought not reasonably to be expected to endure cohabitation. There is also no doubt that the marriage has broken down irretrievably. The parties have, in fact, been living separate and apart from one another for over five years. Five years' separation simpliciter is one of the five "facts" upon which a finding of irretrievable breakdown of a marriage can be founded (s.11A(1) of the Matrimonial Causes Ordinance). As Omrod J. said in Pheasant v. Pheasant⁽¹⁾:

"Separation is undoubtedly the best evidence of breakdown, and the passing of time the most reliable indication that it is irretrievable".

14. I grant the petitioner a decree nisi of divorce. The question of custody is adjourned to Chambers and the question of periodical payments is adjourned to the Registrar. I order a Social Welfare Report. Costs to the petitioner to be taxed in accordance with the Legal Aid Regulations.

Representation:

Mr. Adrian Huggins for the Petitioner

Respondent absent

(1) [1972] 1 All E.R. at 589