C v. L

FCMC007268/2000

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES

SUIT NO. 7268 OF 2000

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Coram: H.H. Judge Bruno Chan in Chambers

Date of Hearing: 17 January 2002

Date of Delivery of Judgment: 18 January 2002

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J U D G M E N T

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1.This is the hearing of the Respondent Wife's application to stay the Petitioner Husband's divorce proceedings on the ground that their marriage has already been dissolved in Singapore. The Petitioner has also taken out several applications including striking out the Acknowledgment of Service (Form 4) filed on behalf of the Respondent, and for custody of the children of the family which he would like me to deal with in the event that I refuse the Respondent's stay application. For convenience purpose I shall refer to the parties as Husband and Wife in this judgment.

2.The parties were married on 16th December 1989 in Hong Kong. Both were then residents in Hong Kong, with the Husband working as a medical doctor in the civil service, whilst the Wife was a certified public accountant. They have 3 children, all daughters now between 4 and 8 years of age. In 1996 the Husband left his job with the government to set up his own private practice. However he closed down his clinic 2 years later due to poor business and in May 1999 the family emigrated to Singapore.

3.Despite the move to a new environment their marriage could not last and after an incident between the parties which required police intervention, the Wife filed for divorce against the Husband on 6th July 2000 under Divorce Petition No. 2100 of 2000 in the High Court of Republic of Singapore on the ground of his unreasonable behaviour, and for the custody of their 3 children and ancillary relief including periodical payments for herself and the children as well as a determination of her interest in the former matrimonial home in Shatin, Hong Kong. Shortly after being served with the divorce papers in Singapore, the Husband returned to Hong Kong where he has since remained.

4.On 2nd August 2000 the Husband instituted the present proceedings in Hong Kong by issuing a petition for divorce based on the Wife's unreasonable behaviour in which he also prayed for custody of the 3 children and an order extinguishing the Wife's interest in their said Shatin property which is registered in the parties' joint names. He also in mid-August 2000 sent an application to the Singapore Court to dismiss the Wife's proceedings and an answer to her petition, but as he never returned to Singapore to prosecute his applications, it is believed that they have been dismissed by the Singapore Court.

5.On 14th September 2000 the Husband served his divorce papers on the Wife by post to her last known address in Singapore. On 26th September 2000 the Wife applied for Legal Aid in Hong Kong. On 26th November 2000 Legal Aid was granted to her for the purpose of applying to stay the present proceedings. Before the Husband could set his petition down for hearing in the uncontested list, the Wife's assigned solicitors filed her summons for stay on 12th February 2001. The supportive affidavit of her solicitor Mr Bough filed on behalf of the Wife on 19th February 2001 revealed that a decree nisi of divorce was already granted by the Singapore Court to her on 8th September 2000, and that on 19th January 2001 custody of all 3 children was also granted to her with reasonable access to the Husband. In the same order the Husband was also ordered to pay Singapore S$250 per month for the maintenance of the Wife and S$750 per month for the children, and that the said Shatin Property be sold with the net sale proceeds be divided equally between the parties. Finally the Husband was ordered to pay the Wife's costs of S$1,000. In the affidavit were exhibited copies of the Wife's divorce papers including the said decree nisi of divorce and orders. On both occasions the orders were made in the absence of the Husband.

6.As the hearing of the stay application on 9th March 2001 which was only set down for 3 minutes, the Husband indicated that he wished to challenge the validity of the decree nisi granted to the Wife as it was merely an unsealed copy and that he wished to oppose the application on the ground that it would be more convenient or practical for the Court in Hong Kong to deal with the divorce proceedings between the parties. The hearing was therefore adjourned for argument.

7.The parties have since filed more affidavits in support of their respective case. The Husband has also filed several more applications, some for the striking out of the Wife's Form 4 and for her solicitors to file another Notice to Act as the 1st one filed by them did not properly state their address, others for custody of the children and for an order for them to be brought back to Hong Kong to be put under his care and control. All these applications were subsequently consolidated for hearing together with the Wife's stay application.

8.As the Wife was unable to come to Hong Kong for the hearing, all her evidence were presented by affidavits filed by her solicitor Mr Bough on her behalf. Although the Husband did question whether the Wife, who is now a resident in Singapore, is entitled to Legal Aid in Hong Kong for which he also questioned the capacity of Mr Bough to act for the Wife, I have no doubt that the Legal Aid Certificate granted to the Wife is valid upon which Mr Bough has full capacity to represent the Wife in these proceedings, a matter which has been verified by a letter from the Director of Legal Aid to the Husband in answer to his queries. Whether the Wife should be entitled to Legal Aid in Hong Kong in the first place is not really a matter that should concern me, nor should it have any effect on the validity of the evidence presented on her behalf.

9.The first matter that I should consider is naturally the Wife's stay application in particularly whether the parties' marriage has indeed already been dissolved in Singapore. I have now been shown the certified true copy of the decree nisi of divorce granted to the Wife on 8th September 2000 by a District Judge of the Subordinate Courts of the Republic of Singapore, which was filed on 2nd November 2000 and the copy before me was certified and sealed by the Registrar of the Subordinate Courts on 21st August 2001 presumably for the purpose of its production in these proceedings.

10.I also have the certified copy of the custody and ancillary relief order granted to the Wife on 19th January 2001 by another District Judge of the same Subordinate Courts of Singapore which was certified and sealed by the same Registrar. Lastly but most importantly of all, there is now before me a sealed and certified true copy of the Certificate making the decree nisi of divorce absolute on 2nd May 2001. At the Husband's request, I have examined all 3 documents with care and I have absolutely no reason to doubt their authenticity. I also find that they are admissible as evidence in these proceedings under S 31 of the Evidence Ordinance, Cap 8. Any procedural irregularity or invalidity complained by the Husband of the Wife's divorce proceedings in Singapore such as defective or insufficient service or notice of hearing to him or that the copies documents served on him should be sealed, should have been challenged or dealt with in Singapore through judicial review or appeal in their Courts but which the Husband has never formally done. As far as I understand, the decrees of divorce have not been appealed. The next step is to decide whether they are recognised as valid in Hong Kong.

11.Section 55 of the Matrimonial Causes Ordinance, Cap 179 provides for the recognition in Hong Kong of overseas divorces and legal separations which have been obtained by means of judicial or other proceedings in any country outside Hong Kong, and which are effective under the law of that country. The decree of divorce granted to the Wife in Singapore was clearly obtained by means of judicial proceedings and are effective under the law of that country. This is confirmed by the opinion of a family law expert in Singapore Mr Steven Seah which is exhibited to Mr Bough's 4th Affidavit of 1st September 2001.

12.Section 56 of the Ordinance sets out the grounds for recognition as follows :-

"(1) The validity of an overseas divorce or legal separation shall be recognized if, at the date of the institution of the proceedings in the country in which it was obtained -

(a) either spouse was habitually resident in that country; or

(b) either spouse was a national of that country.

(2) In relation to a country the law of which uses the concept of domicile as a ground of jurisdiction in matters of divorce or legal separation, subsection (1)(a) shall have effect as if the reference to habitual residence included a reference to domicile within the meaning of that law.

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13.It is not in dispute that the parties and their children emigrated to Singapore in 1999 and that at the time of the issue of the Wife's petition in July 2000 the parties were residents in Singapore, with the Wife residing in a home set up by the Singapore Anglican Welfare Council with the 3 daughters, while the Husband was residing at Apartment Block 110, Bukit Marah View #03-558, Singapore. It is also true that all 3 children were studying in schools in Singapore. I have no doubt that the parties were at that time habitually residents in that country, and in the case of the Wife, domicile as well. This is supported by the documents produced in fact by the Husband, including copies of his various applications for jobs in Singapore, as well as letters written by the parties all show a common intention to make their home in Singapore. There is also in evidence the parties' application for and approval of permanent residence for them and their children shortly after their arrival in Singapore. This view is well supported by the expert advice from Messrs. Seah Leung & Partners exhibited to Mr Bough's 4th Affidavit that only one party, i.e. in the case of the Wife, is required to be domiciled in Singapore for the Court there to have jurisdiction to hear her divorce petition. This clearly meets the requirement under S 56(1)(a) of the Ordinance. The Husband has however argued that the decree absolute issued by the Singapore Court is not a valid document that can be recognised by the Hong Kong Court as he had never been properly served with the Wife's divorce papers or notice of such proceedings, and that at the time when the Singapore Court granted the decree of divorce, there was in fact no subsisting marriage between the parties. He relies on S 58 and S 61 of the Matrimonial Causes Ordinance. S 58 provides as follows :-

"(1) For the purpose of deciding whether an overseas divorce or legal separation is entitled to recognition by virtue of this Part, any finding of fact made (whether expressly or by implication) in the proceedings by means of which the divorce or legal separation was obtained and on the basis of which jurisdiction was assumed in those proceedings shall -

(a) if both spouses took part in the proceedings, be conclusive evidence of the fact found; and

(b) in any other case, be sufficient proof of that fact unless the contrary is shown.

(2) In this section, "finding of fact" (就事實所作的裁斷) includes a finding that either spouse was habitually resident or domiciled in, or a national of, the country in which the divorce or legal separation was obtained; and for the purposes of subsection (1)(a), a spouse who has appeared in judicial proceedings shall be treated as having taking part in them."

14.In her petition the Wife stated that both parties were permanent residents of and domiciled in Singapore. The decree nisi granted to her reads as follows :-

"BEFORE THE HONOURABLE IN OPEN COURT

DISTRICT JUDGE MR KHOO OON SOO

THE 8th DAY OF SEPTEMBER 2000

THE Honourable Judge having taken the oral evidence of the Petitioner in support of the Petition filed in this cause and having heard Counsel for the Petitioner and the Respondent not appearing though duly served with the Petition, PRONOUNCED that the petitioner has sufficiently proved the contents of the said Petition and DECREED that the marriage had and solemnised on the 16th day of December 1989 at the Sha Tin Marriage Registry, Hong Kong between L, the Petitioner, and C, the Respondent, be dissolved by reason that the marriage has broken down irretrievably that the Respondent has behaved in such a way that the Petitioner cannot reasonably be expected to live with the Respondent, unless sufficient cause be shown to this Court within three (3) months from the making of this Decree why this Decree should not be made absolute."

15.It is therefore clear that the judge having heard the Wife's oral evidence did make a finding of fact, inter alia that she was habitually resident or domiciled in Singapore before granting the decree nisi of divorce, a finding which I have also reached earlier in this judgment.

16.S 61 of the Matrimonial Causes Ordinance provides certain exceptions from recognition as follows :-

"(1) The validity of a divorce or legal separation obtained outside Hong Kong shall not be recognised in Hong Kong if it was granted or obtained at a time when, according to the law of Hong Kong (including its rules of private international law and the provisions of this Part), there was no subsisting marriage between the parties.

(2) Subject to subsection (1), recognition by virtue of this Part or of any rule preserved by section 59 of the validity of a divorce or legal separation obtained outside Hong Kong may be refused if, and only if -

(a) it was obtained by one spouse -

(i) without such steps having been taken for giving notice of the proceedings to the other spouse as, having regard to the nature of the proceedings and all the circumstances, should reasonably have been taken; or

(ii) without the other spouse having been given (for any reason other than lack of notice) such opportunity to take part in the proceedings as, having regard to the matters aforesaid, he should reasonably have been given; or

(b) its recognition would manifestly be contrary to public policy.

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17.Subsection (1) does not apply as there was clearly a subsisting marriage between the parties at the time when the decree of divorce was obtained. All the evidence before me show that it was one indisputable fact and which the Husband has conceded at the hearing.

18.Subsection (2) should be more relevant as the Husband has complained that he had never been properly served with the Singapore proceedings or received proper notice thereof. There is however ample evidence to the contrary. Firstly the Husband did acknowledge receipt of the Wife's divorce papers by returning his acknowledgment of service on the 31st July 2000, a copy of which was exhibited to Mr Bough's 1st Affidavit as "AMB-10". On the same date the Husband also signed and completed a memorandum of appearance to the Singapore proceedings indicating his intention to answer the petition only in the Court of Hong Kong and to apply to discontinue the Singapore proceedings. This is also exhibited to the same affidavit of Mr Bough. As mentioned earlier in this judgment, the Husband did subsequently file an answer and an application to discontinue the proceedings, both of which were however unsuccessful, presumably because he never travelled to Singapore to prosecute them.

19.Had he thereafter received any further notice of the proceedings in Singapore or been given further opportunity to take part in the proceedings ? I have no doubt he had. This is clearly evidenced by the numerous exhibits to Mr Bough's various affidavit as well as the Husband's own affirmation of 19th November 2001 of various letters and notices from the Wife's Singapore lawyers to him informing him of various stages of her proceedings. His complaints that they were merely unsealed draft documents from unknown Singapore solicitors are totally groundless and absurd and he nevertheless did write to the Court in Singapore with his complaints. There is no evidence that he cannot financially afford to go to Singapore for the hearings, or to instruct a lawyer to represent him, in particularly that he was granted legal aid in Singapore for custody application at one stage before the Wife's divorce proceedings. His allegations that the staff of the Singapore Court engaged in illegal or irregular activities, or that the Wife's lawyers had conspired together with them against him, that the lawyer assigned by the legal aid department in Singapore to him did not act in his best interest, or that the interpreter of the Singapore legal aid department was being particularly hostile to him are all totally groundless and sound paranoiac at its worst. I believe that he had deliberately chosen not to attend or take part in the hearings in Singapore or to instruct a lawyer to do so on his behalf simply because he wanted to have his divorce in Hong Kong, and cannot be said to have been deprived the opportunity to take part in the proceedings in Singapore.

20.For the reasons aforesaid I am convinced that the decree nisi of divorce granted to the Wife in Singapore is a valid divorce recognised by this Court and with that decree having since been made absolute which has not been appealed, and as there is now no longer any marriage between the parties for this Court to dissolve, the Husband's divorce petition herein should therefore be stayed.

21.Even if the Wife's decree nisi had not been made absolute, I would still have allowed the stay because I believe it would be more practical and convenient for the Court in Singapore to deal with the parties' divorce there than in Hong Kong. It is clear from the evidence that the Wife and the children have already settled in Singapore. As the children are still relatively small with the youngest only at the age of 4, it would obviously be much more difficult or even impossible for the Wife to leave them behind in Singapore to attend to various hearings in Hong Kong in particularly where the custody and ancillary relief matters would be in serious dispute. It should also make sense for the issue of custody and / or access to be investigated by the authorities such as Social Welfare Department in Singapore where the children live and attend school than in Hong Kong. By comparison, it would be much less inconvenient for the Husband to travel by himself to Singapore for the proceedings there, or to instruct a lawyer to represent him in those proceedings.

22.It is true that the matrimonial asset in dispute is located in Hong Kong, but as pointed out by the Wife's expert, the matrimonial laws in Singapore and the practice and procedure in divorce proceedings there are very similar to those in Hong Kong, as both are based on the English system, and for which the Husband cannot say how he would be prejudiced or that the Wife would gain any advantage over him in law or procedure, and since the Singapore Court also has jurisdiction to deal with any assets of divorcing couples located outside Singapore, there should be no difficulty for the parties' dispute over their Shatin Property in Hong Kong to be dealt with by the Singapore Court, as it did on 19th January 2001. Since I have now decided to stay the proceedings in Hong Kong, I decline to deal with the Husband's application for custody of the children which should be more appropriately dealt with by the Singapore Court. It follows that it is not necessary for me to deal with his application requiring the Wife's attendance to be cross-examined by him in such custody hearing.

23.Lastly, on question of costs, I agree that the Husband's case was doomed to fail after the Wife had obtained her decree of divorce but despite repeated warnings by her solicitors, he stubbornly and foolishly insisted in pursuing his applications in Hong Kong, for which I see no reason why he should not have to bear all her costs on party and party basis. In fact many of his applications such as striking out the Wife's Form 4 or for her solicitors to file another Notice to Act, which he had taken out more than once, border on frivolous or vexatious, as argued by the Wife's solicitor, but I am prepared to give him the benefit that his actions were the result of his ignorance of the law or procedure and will not accede to her request for full indemnity costs. My order is therefore as follows :-

1. The petition and the proceedings herein be stayed.

2. The Petitioner to pay all the Respondent's costs including costs reserved to be taxed on party and party basis if not agreed. The Respondent's own costs is to be taxed on Legal Aid Regulations.