Bca v. Iof

HCMP 1901/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 1901 OF 2005

(ON APPEAL FROM FCMC NO. 11752 OF 2004)

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Before:  Hon Yeung JA & Burrell J in Court

Date of Hearing:  24 March 2006

Date of Judgment:  10 April 2006

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J U D G M E N T

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The Background

1.The husband (BCA) and the wife (IOF) married in November 2001 and they have no children.

2.The wife petitioned for divorce, alleging unreasonable behaviour on the part of the husband and, on 1 November 2004, served the Petition on the husband. The husband filed an Acknowledgment of Service on 5 November 2004, indicating his wish to defend.

3.Under rule 18 (1) of the Matrimonial Causes Rules, , the husband had a total of 29 days (8 days + 21 days) from the service of the Petition to file his Answer. However, his legal aid application on 18 November 2004 stayed the proceeding for 42 days from 22 November 2004 and time only started to run again when his legal aid application was refused on 1 December 2004. The time for filing an Answer expired on or about 10 January 2005.

4.The husband did not file his Answer and took no further steps until 25 May 2005 when he applied for leave to file his Answer out of time and sought to remove the case from the undefended special procedure list, as by that time, under the undefended special procedure list, the wife had already obtained a decree nisi. The pronouncement of the decree nisi was scheduled to take place on 27 May 2005.

5.On 10 June 2005, Judge Chu (the judge) in the District Court refused his application. The husband's applications for leave to appeal before the judge, and then beforeYuen JA were both rejected. He now renews his application before this court.

The Judge's Decision

6.The judge rejected the husband's contention that time only started to run again 42 days from 22 November 2004. She concluded that there was no reasonable ground for his delay in filing the Answer.

7.The judge further concluded that the granting of a decree would not be contrary to the justice of the case as, on the husband's own admissions, the wife was likely to succeed even if her petition was defended. In particular, the judge referred to the husband's admissions in his proposed Answer and Cross-Petition:

1. that he brought a girl to the marital home at dawn, and had admitted adultery;

2. that there was violence between the parties;

3. that he slapped the wife;

4. that there was a physical struggle and the wife suffered injuries;

5. that he had damaged or destroyed the wife's personal effects;

6. that he and the wife both frequently abused drugs and alcohol; and

7. that he was convicted of assault and criminal damage.

Proposed Grounds of Appeal

8.The husband contends that the wife had greatly exaggerated “the unreasonable behaviour” alleged against him and says that the granting of a decree nisi on such allegations indicated that the court had accepted them and that would carry a strong stigma against him.

9.The husband seeks to explain the delay by suggesting that he was not aware of the wife's determination to proceed with the divorce until May 2005. He says that the wife had misled him when she gave him clear indications of a possible reconciliation. He puts the blame on the Legal Aid Department for failing to inform him of the progress of the case and alleges that the judge had failed to have regard to the affidavit evidence of material witnesses.

10.In his supporting affidavit (sworn on 12 December 2005 though not formally filed), the husband further alleges that the wife had cheated on him and had committed adultery with at least three men before their separation. He says he would have added those three men as co-defendants in his cross-petition for divorce.

Discussion

11.“The sole ground for presenting or making a petition or application for divorce shall be that the marriage has broken down irretrievably” (s 11 of the Matrimonial Causes Ordinance Cap 179).

12.The husband is not disputing that the marriage had broken down irretrievably. He himself wants to cross- petition for a divorce on that ground too.

13.It is never the function of a divorce court to apportion the responsibility of the parties for a broken marriage.

14.Although the wife had made certain allegations against the husband in her petition, a decree made on such petition, when the husband did not file any Answer, did not mean that the court must have accepted those allegations in their entirety. It was just an indication that the court accepted that there were grounds for the petition and that the husband decided not to defend.

15.As the judge quite rightly pointed out, the husband had made certain admissions and that the wife was likely to succeed in obtaining a decree even if it was a defended cause.

16.The husband does not challenge the judge's finding that he had made the admissions as set out in paragraph 7 hereof. Indeed such admissions were clearly borne out in the particulars given by the husband in his proposed Answer and Cross-Petition.

17.The judge was clearly right that the wife was likely to succeed even if the husband had defended her petition.

18.The judge had identified the case of Owen v Owen [1964] P 277. It may be worthwhile to refer to the judgment of Scarman J at p 284. After affirming the principle that the court has to consider “whether the new matter put forward so changes the complexion of the case as to satisfy this court that if that material had been before the court which dealt with the matter originally the order made would, or probably would, have been different”, Scarman J went on:

“We think that today the justification for the existence of the court's power to order a rehearing is the public interest and that its exercise should be governed primarily by that consideration. The true nature of the public interest is, as Pilcher J remarked in Tucker v Tucker [1949] P. 105 to see that in matrimonial matters, where questions of status are involved, any order made by the court is made upon the true facts. Certainty is not within the power of the court to achieve; but it must be satisfied that there are substantial grounds for the belief that a decree has been obtained contrary to justice of the case before it takes the serious step of setting aside an order of the court obtained by the due process of law”.

19.We have considered the background of the case and everything urged upon us by the husband. We have also taken into consideration the husband's draft submissions. We are satisfied that on the husband's admissions, he has no realistic prospect of succeeding in the appeal and the decree granted to the wife was inevitable.

20.There is no injustice in granting the decree and there is no valid basis upon which the court could over-rule the judge's decision.

21.The application for leave to appeal against her decision is therefore refused.

Applicant: In person.