Lau Chu v. May Lau Tang Su Ping

IN THE DISTRICT COURT OF HONG KONG

DIVORCE JURISDICTION

SUIT NO. 2 OF 1987

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BETWEEN

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Coram : Hon. Mayo, J in Chambers

Date of Hearing: 16th & 17th December, 1987

Date of delivery of judgment : 17th December, 1987

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JUDGMENT

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1. This is a striking out application taken out by the Husband. He is seeking to strike out a notice given by the Wife on the 6th February 1987 of her intention to apply for all the various forms of ancillary relief which are available. Prior to the commencement of the divorce proceedings under which the application is made, the Husband and Wife were parties to Judicial Separation Proceedings. A Decree of Judicial Separation was made by Mr. Justice Power on the 27th July 1982. On the same day, Mr. Justice Fb1tler made an Order the effect of which was to sanction an agreement which had been concluded between the parties concerning ancillary relief.

(a) may be made for the purpose of enabling that, other party to meet any liabilities or expenses reasonably incurred by him or her in maintaining himself or herself or any child of the family before making an application for an order under this section.

(b) may provide for the payment of that sum by instalments of such amount as may be specified in the order and may require the payment of the instalments to be secured to the satisfaction of the court.

2. He argued that the reference to the different types of matrimonial proceedings should be read disjunctively. It was manifest from the wording of the section that the Wife had a statutory right on the granting of the decree nisi in the divorce to apply for ancillary relief. This could not be taken from her by an agreement whether or not it had the sanction of the Court. Put another way, Mr. Justice Bower had no authority to make any Order which would have the effect of restricting a party from making an application for ancillary relief in divorce proceedings which at that time were not even within the contemplation with the parties.

3. Mr. Rodway also emphasised the difference between Judicial Separation and Divorce. He went on to argue that it was logical that separate and distinct dispositions should be made to accommodate the different situations, which are likely to arise.

4. I regret that I do not see much merit in Mr. Rodway's submissions. It is very clear to me, the Section 4 does indeed cover the situation where a Judicial Separation has been granted. I can see no reason why different considerations should prevail. There could be no objection to the parties to a Judicial Separation entering into an agreement for a clean break. There was nothing inconsistent to this in any of the cases which were cited to me. It is obvious from the agreement and in particular Clause 17 which I have referred to that the parties were indeed attempting settle all matters of a financial nature between themselves in all types of matrimonial proceedings.

5. In my view, the Order of Mr. Justice Power is a valid Order and the Wife is unable to now prosecute an application for ancillary relief in the manner she proposes. In these circumstances, the proper Order for me to make is to make an Order in the terms sought by the Husband on the summons which lies before me, and that is the Order which I make.

Mr. C. Ching, Q.C. & Miss J. Leong inst'd by J.S.M. for Petitioner

Mr. G. Rodway, Q.C., & Miss A. Eu inst 'd by Denton Hall Burgin & Warrens for Respondent