Lsc v. Pkh

FCMC 4957 / 2006

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES

NUMBER 4957 OF 2006

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BETWEEN

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Coram : Her Honour Judge Sharon D  . Melloy in Court    

Dates of Hearing : 27 and 28 November 2007

Date of Submission of Closing Written Argument : 13 December 2007

Date of Judgment : 8 January 2008

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J U D G M E N T

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Introduction

1.This is a defended divorce.  The wife who is 38 years old, says that the marriage has broken down irretrievably.  Her 73 year-old husband says that it has not.  The wife seeks a divorce based on unreasonable behaviour.  In the alternative she seeks leave to immediately issue a petition based on two years separation.

2.The couple have three children, a girl who is now aged 13 and 10-year-old twin boys.

3.The parties married on the Mainland on the 11 June 1992 and for a period of time conducted a long distance relationship with the husband based in Hong Kong and the wife based in China.

4.In April 2001 the wife was granted a one-way entry permit.  It is not disputed that the marriage has been a very troubled one since then, with frequent involvement of both the Police and the Social Welfare Department.  The children were taken into care for a short period of time.

5.The wife filed for divorce on the 2 May 2006.  The husband filed an Answer on the 21 June 2006. He did not cross petition.  The wife filed her Reply on the 30 November 2006.

Issue

6.There is really only one issue -has the husband behaved in such a way that the wife cannot reasonably be expected to live with him?

The law

7.So what constitutes unreasonable behaviour?  Both parties referred me to the appropriate test in Livingstone-Stallard v Livingstone-Stallard 1974 2 ALL ER 766.

Would any right thinking person come to the conclusion that this husband has behaved in such a way that this wife cannot reasonably be expected to live with him, taking into account the whole of the circumstances and the character and the personalities of the parties.

8.It is then both a subjective and an objective test.  The issue is not so much whether the husband’s actions were unreasonable per se, but rather whether this particular wife found this particular husband’s actions unreasonable.  On that basis can the wife reasonably be expected to live with him?

9.I do not have to consider whether the wife’s actions were also unreasonable, as the husband has not cross-petitioned.  He simply defends.  This is so notwithstanding the fact that the husband has made allegations about the wife.  Both parties accuse the other of violent and unreasonable behaviour.  Both have reported the other to the Police.  On the 3 March 2005 the wife was bound over following an incident.  She was charged with assault occasioning actual bodily harm (of the husband). On the 24 September 2005 the husband was arrested for common assault (of the wife).  On the 5 June 2006 the wife obtained an ex parte non-molestation and restraining injunction order.  On the 12 July 2006 the husband entered into various undertakings, which had the same effect as the order.

10.The husband’s lawyer has also referred me to Ash v Ash 2 WLR 347.  In that case there were also allegations of violence on both sides.  Bagnall J said

What I have to do is to examine the whole of the evidence placed before me, including and giving not inconsiderable weight to the assertions of the parties, and to make up my mind, quite generally, whether it can be said that in spite of the behaviour of the respondent and the reaction to that behaviour of the petitioner, the marriage has not broken down irretrievably. In my opinion, in performing that general exercise on the survey of the evidence, only a general answer is appropriate and no useful purpose would be served by seeking to place quantitative weight on one consideration or another.

11.I intend to adopt a similar approach here and to carry out a general survey of the evidence in order to determine whether or not this marriage has infact broken down irretrievably .       

Has then the husband behaved in such a way that the wife cannot reasonably be expected to live with him?

12.In summary the wife complains of three things.  I will deal with them, if I may, in order of perceived importance:

1)	The husband’s alleged violent behaviour.  The wife complains of physical assaults, verbal abuse, and in general of violent and unreasonable behaviour on the part of the husband.
2)	The husband’s alleged drinking habit.  The wife says that the husband drank to excess and that he behaved badly when drunk.
3)	The husband’s alleged failure to maintain the wife and children.

1) The husband’s alleged violent behaviour

13.The husband maintains that he is not a man of violent disposition and that infact it is the wife who has a violent temperament. Having heard both parties give evidence and having read the pleadings and affirmations filed it seems to me that both parties reacted violently towards the other at times and that each parties behaviour was, on occasion, inappropriate.  It is very hard for any court to determine whose “fault” it was.  Luckily I am not asked to do so.  I simply need to determine whether the husband’s actions were such that the wife should not be reasonably expected to live with him? It seems to me that the answer to that must be yes. 

14.In particular I am mindful of the incident on the 30 May 2006.  This occurred outside the cubicle in which the wife and children were living.  The husband says that he discovered that his sister-in-law was in the cubicle.  He dislikes his sister-in-law because she had not paid him rent in the past. He wanted her to leave.  On the husband’s own evidence he says:

They refused and I then picked up an iron rod from the 3/F flat and tried to open it. The Police were called to assist, but they did not give me any serious verbal warning as alleged as they understood that the 4/F cubicle was my property.

15.Photographs produced by the wife show a very badly damaged front door, of the 4/F cubicle.  The incident must have been terrifying for those inside the cubicle, particularly for the children.

16.Accusations and counter accusations flow around this incident, which led to the wife obtaining the injunction order.  For example it is also alleged that the husband deliberately cut off the electricity supply to the cubicle, while the children were inside, which he denies. There is no denying the fact however that the wife and children were without electricity for some time. 

17.In any event, what is not denied is that the husband then posted up a notice on the cubicle door in which the wife and children were living.  There was some debate over the accurate translation of this poster – which seemed to be along the lines of

I would rather die with honour than die with dishonour.

18.The wife understood it to mean that the husband wanted to die and that he wanted her and the children to die with him – that he would not let her and the children live on.  Again this must have been terrifying for both her and the children, especially given the disparity in the parties’ ages.

19.It seems to me that this incident on its own, with the evidence in support, is sufficient to come to the conclusion that the husband has behaved in such a way that the wife cannot reasonably be expected to live with him. 

2) The husband’s alleged drinking habit.

20.This is more difficult to determine, as there is little in the way of extrinsic evidence to support the wife’s recent allegations. Certainly it is not disputed that the husband drank to excess in the past.  In Autumn 2004 he was hospitalized after one such incident.  Whether he has continued to do so is less clear.  The wife says he does.  The husband says he does not.  I am unable to make any finding of fact in this respect.

3) The husband’s alleged failure to maintain the wife and children

21.The husband denies that he failed to maintain the wife and children properly.  He maintains that the wife refused to provide him with the bank passbook and therefore that he was unable to provide her with funds.  With respect the husband’s version of events is hard to believe.  He stopped paying the wife maintenance after she finally left him in 2005.  Consequently in February 2006 the wife started relying on CSSA.  Payment was only resumed after the court made an order on the 3 July 2006.  Generally speaking I accept the wife’s version of events.   

Conclusion

22.Thus in conclusion I will grant a decree nisi of divorce based on the husband’s unreasonable behaviour.  Costs shall follow the event.  Therefore the husband shall pay the wife’s costs of and incidental to the suit, including any costs reserved, on a party and party basis to be taxed if not agreed.  The wife’s own costs to be taxed in accordance with Legal Aid Regulations.

For Petitioner : Ms. R. Choy of M/s Alvin Cheng and Rosaline Choy

For Respondent : Mr. J. Cheung of M/s Johnson Stokes and Master