John Vicrer Locke v. Vera Margaret Locke

HCMC000210/1969

IN THE SUPREME COURT OF HONG KONG

DIVORCE JURISDICTION

ACTION NO. 210 OF 1969

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Coram: B.L. Jones, Assistant Registrar in Chambers.

Date of Judgment: 21st December, 1970.

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DECISION

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1. This is an application by the Respondent for maintenance for herself and the child of the family known as Lynn who was born on the 9th November 1954.

2. The parties whose domicile is in Northern Ireland were married there on the 25th August 1962. Lynn is the Respondent's child by her first marriage which was dissolved but the Petitioner has accepted her as a child of the family.

3. A Petition for divorce on the grounds of cruelty was filed on the 1st December 1969 jurisdiction being claimed under the Indian and Colonial Divorce Jurisdiction Acts 1926-1940 and the Colonial and Other Territories (Divorce Jurisdiction) Act 1950. The Respondent did not defend the proceedings and the Petitioner was granted a decree nisi on the 9th May 1970 discretion of the court being exercised in his favour notwithstanding his own adultery during the marriage. In the absence of good cause being shown the decree was ordered to be made absolute at the expiration of three months. Although no order for custody was made in respect of the child and in fact no order has since been made, the Judge at the hearing expressed his opinion that the arrangements made for the child having regard to the provisions of rule 33A of the Matrimonial Causes Rules 1968 were satisfactory.

4. On the 27th July 1970 through her solicitors the Respondent entered a general appearance. At the hearing of an application before the Hon. Mr. Justice Scholes on the 8th August 1970 the Respondent was granted leave to apply for maintenance for herself and the child of the family. The learned Judge at this hearing stated that he was not satisfied that proper provision had been made for the child presumably having regard to rule 33A.

5. The decree was made absolute on the 11th November, 1970 the child having attained the age of 16 on the 9th November 1970 when rule 33A ceased to apply.

6. Three affidavits were filed on behalf of the Petitioner and one on behalf of the Respondent. Both parties in addition gave evidence viva voce which revealed a number of changes in their financial positions since the affidavits were filed. The third affidavit of the Petitioner avers that the break up of the marriage was due to the conduct and behaviour of the Respondent with the result that it should be taken into account when assessing maintenance. However, this affidavit was filed under a misapprehension of the law as decided in recent cases. In Porter v. Porter 1969 Lw.L.H. at page 1159 Sachs L.J. said:

"it is now commonly accepted that a decree based on a matrimonial offence, whilst of course establishing the factum of that offence, is often of little and sometimes of no importance in reaching conclusions as to whose conduct actually broke up the marriage. Already in 1950, Denning L.J. in Trestain v. Trestain [1950] p. 198 said at p.202: 'I desire to say emphatically that the fact that the husband has obtained this decree does not give a true picture of the conduct of the parties. I agree that the marriage has irretrievably broken down and that it is better dissolved. So let it be dissolved. But when it comes to maintenance, on any of the other ancillary questions which follow on divorce, then let the truth be seen.'"

7. In proceedings for custody and maintenance L. v. L. Divorce Jurisdiction Action No. 50/69 the Hon. Mr. Justice Briggs said during the course of his judgment 'I avoid the use of the term "guilty spouse" because it is my experience of this branch of the law that marriages seldom fail because of the conduct of one of the parties only. And I think it is time that the use of such a term ceased'.

8. As a result the fact that the divorce was granted against the Respondent is irrelevant to these proceedings for maintenance.

9. The Petitioner who is aged 32 is a school teacher employed by the Hong Kong Government on contract at King George V School and before the parties separated they lived in a Government flat in Kowloon. The Petitioner whose contract is due to expire in about September 1971 now lives in one of the new Government Service quarters in Homantin Hill Road whilst the Respondent has until now continued to live at the former matrimonial home. However, proceedings for possession of the flat occupied by the Respondent have been taken by the Hong Kong Government with the result that the Respondent faces the imminent prospect of finding other accommodation. The Petitioner's gross income amounts to approximately $3,600 per month from which he has deductions amounting to approximately $1,750. The deductions include rent $260, service charge $140, clothing and books required for teaching purposes $200, gas and electricity $100, salaries tax approximately $400, life insurance $42, car expenses $120, subscription to Hebe Haven Yacht Club $45 and food approximately $450.

10. I have not taken into account the repayments in respect of the Government loan and salary advance as they have almost been completed. However I shall disregard the deductions that have been made for Lynn as they will now be paid by the Respondent from her own monies and the sums that I shall award for maintenance.

11. The Petitioner works occasionally as a trombone player in a dance band and at present he earns $80 for one evening engagement each week at the Miremar Hotel. Although I am told that such work does not provide a regular income in the sense that the Petitioner has no contract with the band leader nevertheless I consider it should be taken into account when assessing maintenance.

12. The Petitioner owns a freehold house in Northern Ireland, the value of which he estimated 4 years ago was about £4,000. The Petitioner was unable to express an opinion as to the value of the property today. The house is let at a rent of £3 per week but this sum is used towards the repayment of a loan of £1,030 made by the Petitioner's brother when the property was purchased and for other outgoings relating to the property. His other capital assets are of no significant value. The Petitioner is due to receive a gratuity upon the expiration of his contract with the Hong Kong Government which will amount to approximately $17,000 but this is a matter I cannot take into consideration at this time. The Petitioner has not yet decided whether he will apply for a renewal of his contract.

13. The Respondent who is now aged 35 is a Confidential Assistant Class 11 employed on a month to month basis by the Hong Kong Government at a salary of $1,025 per month which is her sole income. The Respondent estimates that in order to find reasonable accommodation her anticipated rent will be about $1,000 per month. The Respondent's other expenses set out in her affidavit will amount to just over $1,100 per month. The sum of $57 per month for hire purchase instalments on the sewing machine has now been paid.

14. Mr. Asome submitted for the Petitioner that the car that is used by the Respondent is a luxury and should be dispensed with. Although the Respondent only uses the car at weekends I do not consider that she and her daughter should be deprived of this benefit in order to mitigate the Petitioner's responsibility.

15. It was urged by counsel for the Petitioner that the Respondent would perhaps be better off if she returned to live in Northern Ireland. Although the parties are divorced I have been informed that the Hong Kong Government is prepared to pay the return passages of the Respondent and Lynn to Northern Ireland on a compassionate basis but this offer will probably not be kept open indefinitely. However, the Respondent says that she does not intend to leave Hong Kong as she has nowhere else to go to Whilst she does not wish to disrupt the life and schooling of her daughter. The Respondent said that Lynn has been a student of ballet since she was 8 years of age and I was informed that she has ambitions to make ballet her career. Lynn now attends King George V School and the Respondent hopes in due course that she will be able to go to a University in the United Kingdom or to the London School of ...(illegible). I accept the Respondent's evidence that it would not be in the interests of the child at the present time to leave Hong Kong and I do not consider that the suggestion put forward on behalf of the Petitioner is reasonable.

16. Lindley L.J. in Wood v. Wood (1891) p.272, 276 enunciated the following principles with regard to the courts discretion to grant maintenance:

"The circumstances which have to be taken into account are -

17. Having regard to the decisions of Kershaw v. Kershaw (1966) P.13 and Roberts v. Roberts (1968) 3 WLR 1181 a wife is entitled to be maintained so far as practicable in a comparable standard of living to that obtaining before the divorce. A discount should however be made for the Respondent's conduct during the marriage in so far as her entitlement to maintenance is concerned. Taking all matters into consideration I shall award the Respondent maintenance in the sum of $350 per month, the first payment to be made on the 24th December 1970, the second payment to be made on the 1st February 1971 and thereafter on the first day of each month to be payable during their joint lives until further order. I shall award maintenance for Lynn in the sum of $500 per month, the first payment to be made on the 24th December, 1970, the second payment to be made on the 1st February 1971 and thereafter to be paid monthly on the first day of each month until further order.

18. Costs of and incidental to this application will be paid by the Petitioner.

Representation: