Lee Lang (Leung) Yen Ping v. Lee Chun Kui and Another
Read the full judgment text of HCMC 7/1976 on BabelCite. This High Court CFI judgment was delivered on 18 November 1977 before O'Connor, J..
Family law – divorce – matrimonial home – wife's common law right to remain in the matrimonial home – sources of right being right to consortium and husband's duty to maintain – interlocutory injunction to restrain husband from granting lease of second property – whether Sai Kung house constitutes second matrimonial home or extension of matrimonial home – whether wife had common law right to reside in particular part of husband's assets – National Provincial Bank Ltd v Hastings Car Mart followed – ex parte application – whether ex parte interim order was appropriate in absence of urgent necessity – duty to inform other side's solicitors – Ansah v Ansah followed – delay in seeking injunction – significance of delay in light of June 1977 letter and absence of reply – starting point that right to consortium is right to live with other spouse, not in any particular place – right to maintenance does not entitle wife to any particular part of husband's assets – subject to what wife reasonably requires and to adequate alternative provision – wife's infrequent use of Sai Kung house since December 1975 – penthouse accommodation adequate for her reasonable needs – while two premises could rarely constitute matrimonial home, this is not such a case – no genuine desire to use Sai Kung house – wife's right to consortium unaffected by leasing Sai Kung house as husband lives in penthouse – summons for interlocutory injunction dismissed – petitioner to pay 1st respondent's costs – respondent affidavit to be released for reswearing – certified fit for two counsel – ex parte application should not have been made as no urgent necessity and husband's solicitors could and should have been contacted.
Legal issues: Scope of wife's common law right to remain in the matrimonial home where husband seeks to lease a second property · Whether two premises can together constitute the matrimonial home · Whether the ex parte application for an interim order was appropriate
Outcome: Application for an interlocutory injunction restraining the husband from disposing of the Sai Kung house dismissed.
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HCMC000007/1976
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----------------- Coram: O'Connor, J. Date of Judgment: 18 November 1977 ----------------- JUDGMENT ----------------- 1. The petitioner and 1st respondent are wife and husband the marriage, of which there is no issue, having taken place in 1955. In 1975 the wife commenced proceedings for divorce and the hearing of her petition is expected to take place in the early part of next year. They are obviously a couple of considerable wealth. They have occupied a penthouse above the husband's business premises for I gather some years prior to the filing of the petition, but since the filing of the petition they are living there in separate households. 2. The husband is the owner of a house in Sai Kung where the couple used to frequently spend weekends before differences arose between them. There is a dispute on the affidavits as to what extent these visits to Sai Kung were for the purpose of entertaining business associates of the husband. The husband suggests the main use to which the house was put was to entertain such associates while the wife says that it was mainly used as a domestic weekend retreat where they would sometimes entertain friends and sometimes business associates. It is unnecessary for me to resolve this matter and it suffices to say that since December 1975 the wife has only once stayed in that house and that only for a weekend at Easter 1976. She has visited it very seldom and I do not find convincing her explanations for the infrequency of her visits. It seems to me that since the petition was filed she has shown little or no desire to make use of the Sai Kung house. She would not be losing anything of which she is prepared to make a significant use, if she were deprived completely of access to that house. 3. In or about June 1977 it came to the wife's notice that her husband intended to grant a lease of the Sai Kung house. On her instructions a letter was sent to the husband's solicitors on 24th June 1977 informing them that the wife objected to the house being let and would, if necessary, take steps to prevent any such letting. No reply to that letter was sent. On 7th October 1977 the wife got word that the house was going to be let and on 11th October 1977 her solicitors received a letter from her husband's solicitors stating that a tenancy agreement had already been entered into. On 13th October 1977 on being moved ex parte by counsel I made an interim order restraining the husband from disposing of the house until after the hearing of a summons for an interlocutory injunction. The summons for the interlocutory injunction is the matter that is now before me. An affidavit by the husband and a further affidavit by the wife have been filed. The husband's affidavit discloses that while a draft agreement for a lease has been prepared no lease has as yet been entered into. 4. The wife founds her claim to an interlocutory injunction upon the common law right of a wife to remain in the matrimonial home. I should perhaps say that her case was not put on any other basis, it was not put for example on the basis that the property should be preserved as it may be required to satisfy the wife's claim for financial relief under the Matrimonial Proceedings and Property Ordinance Cap. 192. True Mr. Cheung, Q.C. mentioned that at the tail end of his reply, but only in passing and I think only in light of the fact that I had raised that possibility during the course of Mr. Jackson Lipkins' address. I consider I am only concerned with whether the wife should have an interlocutory injunction on the basis of a wife's common law right to remain in the matrimonial home. For the wife the case was put that there were two matrimonial homes, the penthouse and the Sai Kung house, or that if there were not two matrimonial homes, the Sai Kung house should be looked upon as an extension of the matrimonial home. Counsel for the husband on the other hand says that no case can be found where two premises were treated as the matrimonial home and that a matrimonial home could not consist of two premises. 5. The right of a wife to remain in the matrimonial home is a right that arises from her status as wife. The sources of this right are twofold namely her right to consortium and secondly the husband's duty to maintain his wife. National Provincial Bank Limited v. Hastings Car Mart
6. These passages make it clear that the right to consortium is the right to live together with the other spouse in a matrimonial home. It is not a right to live in any particular place but a right to live in the place where the other spouse lives. A place where the other spouse does not live is not the matrimonial home though of course in former times an action for restitution of conjugal rights could have been invoked for the purpose of compelling a spouse to return to the matrimonial home he had left. If a husband leaves his wife she is generally entitled to remain in the home to which he ought to return. In the instant case a refusal of the injunction requested would in no way interfere with the wife's right to consortium. The husband is not living at Sai Kung. He is living in the same penthouse as she is albeit in separate households. Her right to consortium would be affected neither one way nor the other by the husband letting the house at Sai Kung. 7. I move on to consider the other basis upon which the wife's right to reside in the matrimonial home is based. Her right to be provided with a place wherein to live is one aspect of the wife's right to be maintained by her husband. The wife's right to be maintained does not give her a claim to any particular part of his assets, nor does the right to be provided with a place to live, in itself, give her the right to live in any particular part of his properties. The right to be maintained involves the right to pledge the husband's credit for necessaries, but that right is subject to what the wife reasonably requires and to the husband not having made adequate provision for her maintenance in the circumstances. Similarily the right to be provided with a place to live is subject to what the wife reasonably requires in that respect and to the husband not having made adequate provisions in that regard. In the instant case I consider that the right of the wife to be provided with a place to live is adequately met by the provision of accommodation at the penthouse. She shows no genuine desire in my view to move to the house at Sai Kung either permanently or on a part-time basis. In all the circumstances she is sufficiently housed in the penthouse. 8. I do not consider that a matrimonial home for these purposes could only consist of one premises. I can envisage circumstances where for the purposes of this rule the home could consist of two or even more premises. However such circumstances would be extremely rare and unlikely to be met with in practice. This present case is not such a case. Accordingly I refuse the application for an interlocutory injunction. 9. I should mention that on behalf of the wife it was contended that due to delay the wife was disentitled to an injunction. It is unnecessary for me to go into that matter in detail but having regard to the terms of the letter of 24th June, the absence of a reply and the fact that the wife acted within a matter of days of hearing on 7th October 1977 of a lease I do not consider there was any significant delay. 10. I have also been addressed as to the circumstances in which the ex parte interim order was made. It is said that there was no urgent necessity calling for an ex parte application. I have been referred to Ansah v. Ansah 1977 Fam. 138 at 142G - 143G where it is pointed out that the court should only be moved exparte in cases of emergency when immediate action is necessary. In my view even in such cases the solicitor for the other side should be informed, if that is possible and not likely to prejudice the application, so that even on the ex parte application the respondent may have an opportunity of being present and in addition be heard if the court so wishes. 11. A further matter is that if solicitors had been contacted an undertaking might have been given that would have removed any necessity there might otherwise have been for an exparte application. Such contact was not made in this case though it appears to me that it could and should have been. In those circumstances I do not consider the court should have been moved ex parte. Summons dismissed. 12. Certified fit for two counsel. Petitioner to pay 1st respondent costs. Respondent affidavit to be released for reswearing. Representation: O.V.Cheung, Q.C. & Robert Wei (P.H. Sin & Co.) for Applicant/Petitioner. Jackson-Lipkin, Q.C. & R.Wong (Johnson, Stokes & Master) for Respondent/Respondent. |