Read the full judgment text of CACV 000182/2007 on BabelCite. This Court of Appeal judgment was delivered on 20 June 2008 before Hon Cheung JA, Yeung JA and Lam J.
Divorce – Desertion – Substituted Service – Irregularity – Jurisdiction to set aside – Discretion – Appeal allowed – Decrees set aside – Costs against husband – The parties were married in 1995 and have two children. The husband petitioned for divorce on the ground of desertion by the wife for one year immediately before the presentation of the petition. Service was effected by advertisement in the Sun News. The decree nisi was granted on 3 May 2006 and made absolute on 26 June 2006. The wife was unaware of the proceedings until September 2006. She appealed against the decrees, claiming she received neither the petition nor the orders. The husband admitted irregularities in obtaining the decrees but denied deliberate fraud. He had remarried in October 2006. The Court considered the irregularity of proceedings, noting the order for substituted service was obtained improperly by means of false information. The Court held the divorce proceedings were voidable and it had jurisdiction to set them aside, citing Wiseman v. Wiseman [1953] page 81, LCM v. LYY (CACV 445 of 2002) and MSK v. PSK (CACV 219 of 2005). The Court exercised its discretion in favour of the wife, an innocent party, despite the husband's remarriage. The appeal was allowed. The orders for substituted service, decree nisi, and decree absolute were set aside. The husband was ordered to pay the costs of the appeal and below. The Court directed the Registrar to send the judgment to the Secretary for Justice to consider criminal prosecutions. Legal aid was previously granted to the wife but discharged when the husband became bankrupt.
Legal issues: Irregularity of proceedings · Jurisdiction to set aside · Discretion to be exercised in wife's favour
Outcome: Appeal allowed; divorce decrees set aside
Cited by 7 cases