Fhfk v. Ncm

CACV 182/2007

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 182 OF 2007

(ON APPEAL FROM FCMC 11882 OF 2005)

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Before : Hon Cheung JA, Yeung JA and Lam J in Court

Date of Hearing : 20 June 2008

Date of Judgment : 20 June 2008

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J U D G M E N T

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Hon Cheung JA :

Appeal against decree absolute of divorce

1.The parties were married on 12 September 1995.  There are two children of the family, namely, a daughter born on 29 November 1995 and a son born on 25 March 1999. 

2.On 20 October 2005 the husband (‘petitioner’) presented a petition for divorce on the ground of desertion by the wife (‘respondent’) for one year immediately before the presentation of the petition.  It was alleged in the petition that the wife had deserted the husband since May 2003 when she took the children of the family and left the matrimonial home.  It was further alleged that the wife and the children had never returned to the matrimonial home and the husband was unable to locate them. 

3.The husband filed an affirmation dated 18 October 2005 in which he claimed that the wife had left the matrimonial home at 2^nd Floor, No. 79, Shui Tsan Tin Tsuen, Kam Sheung Road, Pat Heung, Yuen Long, New Territories.  He claimed that he was unable to contact the wife and asked for the service of the petition to be effected by an advertisement in the Sun News.  

4.It should be noted that the address of the matrimonial home as stated in the petition was different from the one mentioned in this affirmation.  The one in the affirmation was the correct address of the matrimonial home.  Pursuant to the application Deputy Judge C K Chan on 25 October 2005 authorized the petition to be served by way of advertisement in the Sun News. 

5.In a further affirmation dated 11 January 2006 filed by the husband in support of his petition he again claimed that the wife had left the matrimonial home together with the children since May 2003. 

6.On 3 May 2006 Judge Chan granted a decree nisi of the divorce.   The decree was made absolute on 26 June 2006. 

7.Pursuant to leave granted by Judge Chan the wife now appeals, among other things, against the decree nisi and decree absolute of divorce. 

Basis of application

8.The basis of the wife’s application is that she had received neither the petition nor the orders nisi or absolute.  She came to know of the divorce in the following manner.  In early September 2006 a girlfriend informed her that the husband was planning a marriage with his new girlfriend and invitation cards for the wedding had been sent out to friends and relatives.  Upon hearing this the wife contacted the husband who then told her that he had issued divorce proceedings in the Family Court and the Court had issued a sealed copy of the decree absolute to him.  On 7 September 2006 the husband faxed a copy of the decree to the wife.  On 8 September 2006 the wife sought the advice of a firm of solicitors who later obtained copies of the divorce proceedings from the Court. 

9.The wife said that the husband left the matrimonial home in January 2005.  She and the children had been living in the matrimonial home until 25 September 2005 when she moved out with the children because by then she could no longer afford to pay the mortgage repayment.  The husband was aware that she and the children were still living there in early September 2005 because in that month he had come to the matrimonial home together with his mother.  The husband was then trying to ask the wife to sign some divorce papers which was refused by the wife. 

10.After the wife left the matrimonial home she informed the husband of her new address. 

11.In October 2005 the wife returned to the matrimonial home to check the mail and found a letter from the Legal Aid Department informing her that the husband had applied for legal aid but was refused.  The wife asked the husband about whether he had taken out any divorce proceedings but he never gave her an affirmative answer.  He said that the petition would be issued shortly.   

12.The husband remarried on 8 October 2006.

The husband’s response

13.The husband filed an affirmation in response to the wife’s appeal.  The husband said that he does not dispute the irregularities in obtaining the decrees but he claimed that he had never deliberately made an untrue statement to mislead the Court in obtaining the orders.  Further when he signed his affirmations dated 18 October 2005 and 11 January 2006 respectively he did not know the contents were untrue. 

14.He claimed that in early 2003 he suspected the wife was having an affair with another man and he confronted the wife.  This was followed by a huge argument when he lost control and tried to hurt himself.  He was then sent to a psychiatric clinic for treatment for depression.  Since May 2003 the parties slept in separate bedrooms in the matrimonial home in Yuen Long. 

15.In early 2005 he moved out from the matrimonial home and moved to his brother’s home in Tseung Kwan O i.e. the address stated in the petition. 

16.In September 2005 he issued a divorce petition (FCMC 9509 of 2005) based on two years’ separation.  On 29 September 2005 the parties met outside the matrimonial home and discussed divorce.  The husband proposed to have the custody of the younger son and that the wife would have the custody of the elder daughter.  This was refused by the wife and the matter resulted in a heated argument between the parties. 

17.In October 2005 the husband approached Ms So Wai Kwan of George Chan & Co., a firm of solicitors.  He showed her his divorce petition.  He was then advised by her that he should withdraw the divorce petition and issued a fresh petition based on desertion by the wife.  He accordingly applied to withdraw the petition and left the matter in the hands of Ms So. 

18.In October 2005 he was asked by a Mr. Tam of his solicitors to attend their office to sign some documents.  On arrival he was taken by Mr. Tam to another firm of solicitors to sign a document.  On the way to the other office Mr. Tam told him that he would be asked whether the contents of the documents had been explained to him and whether he understood the contents and that he should say yes.  Mr. Tam further told him that the fresh petition for divorce and the related documents were prepared in accordance with the information and details stated in his earlier divorce petition. 

19.When he attended the other solicitors’ office to sign the document he was asked the questions that Mr. Tam had mentioned earlier and he followed the advice of Mr. Tam and answered yes.  The document was his affirmation of 18 October 2005.  He claimed that the contents of this affirmation was never explained to him.  This was also the same position in relation to his second affirmation of 11 January 2006. 

20.After the divorce he was given a copy of the divorce decree absolute by the solicitors.  In September 2006 on the wife’s enquiry he told her that the divorce had been concluded and he sent the decree absolute to her by fax.  He later remarried his present wife. 

21.In early October 2006 he was contacted by Ms So who informed him that the wife had instructed a firm of solicitors and the solicitors had sent a letter dated 9 October 2006.  The letter stated that the wife had never received any court documents including the petition for divorce and the wife denied that she had left the matrimonial home since May 2003.  The letter also set out proposals concerning the custody of the children and periodical payment for the children and other proposals for ancillary relief.  The letter concluded by saying ‘Please kindly take your client’s instructions and revert to us within the next seven days, failing which, we have firm instruction to take an appropriate action against your client including the application for the dismissal of your client’s petition for divorce’.

Irregularity of proceedings

22.On the husband’s own admission there was irregularity by the husband in obtaining the divorce.  Whether the irregularity was carried out at the instigation of the husband personally or by his solicitors, the fact remains that the order for substituted service of the petition was obtained improperly by means of false information.  It could either be a case of fraud or material non-disclosure.  The wife was not properly served and was unable to contest the petition.  As a result the divorce decree nisi and absolute were also obtained improperly.

Nature of proceedings

23.In Wiseman v. Wiseman [1953] page 81, a husband filed a petition for divorce based on desertion by the wife.  The husband without taking obvious and reasonable steps to bring the petition to the knowledge of the wife obtained an order for substituted service of the petition.  As a result the divorce was undefended because the wife was unaware of the proceedings.  Fraud was not in issue.

24.The English Court of Appeal set aside the divorce.  Denning L.J. (as he then was) at page 92 held that the failure to make full disclosure did not render the divorce proceedings void and a nullity but voidable.  The Court has the jurisdiction in terms of discretion to set aside the divorce.  The remarriage by the husband is a matter for consideration but not an absolute bar to the court’s discretion to set aside the divorce.

Jurisdiction to set aside

25.In this case, I am sceptical of what the husband had said about the history of the matter but it is not necessary for me to decide one way or the other whether fraud was involved because the irregularity involved in obtaining the substituted service was a serious one.  The Court was misled in granting the divorce.  It is at the very least a voidable proceeding and the Court has jurisdiction to set it aside.  The jurisdiction has previously been recognized in Hong Kong in the following two cases, namely, LCM v. LYY (CACV 445 of 2002) and MSK v. PSK (CACV 219 of 2005).

Discretion to be exercised in wife’s favour

26.The question is whether the jurisdiction should be exercised in favour of the wife who is an innocent party.

27.Mr. Chow, counsel for the husband, submitted that both parties have regarded the marriage has come to an end and there is no point in setting aside the divorce. 

28.This is certainly the husband’s view but this is not the view of the wife at all, otherwise, there would not be any need for her to lodge this appeal.  Nor do I consider that there was any waiver by the wife when she found out about the divorce.  Her solicitor’s proposal to resolve the matter could not, on any view, be taken as a waiver, because the letter expressly stated that she would apply to set aside the divorce.  In any event Mr. Chow has not relied on waiver.  Clearly the wife was an innocent party, she should not be deprived of a marital status which is obviously an important one because of the improper conduct of her husband or his advisers.  Somervell L.J. emphasized the importance to be attached to divorce proceedings to effective service which will bring and does in fact bring the matter to the knowledge of the respondent.

29.The husband’s has now remarried.  The new wife has not intervened in these proceedings.  Even if she does and objects to the application, I do not see that as a valid reason to refuse to set aside the divorce because as Denning L J observed it would be a bad thing if a husband could abuse the process of the court and yet keep the benefit of it by the simple expedient of marrying again. 

30.In my view the divorce should be set aside as a matter of justice.

Conclusion

31.I will accordingly allow the appeal and set aside the following orders :

(1)    Order for substituted service dated 25 October 2006;

(2)    Decree nisi dated 3 May 2006; and

(3)    Decree absolute dated 26 June 2006.

Referral to the Secretary for Justice

32.The Court will direct the Registrar to send this judgment and paper of this case to the Secretary for Justice for him to consider whether criminal prosecutions are necessary in the light of the husband’s conduct. 

Legal Aid

33.The Court was informed by the wife that she was previously granted legal aid but legal aid was discharged when the husband became bankrupt.  We do not have details of the discharge but if what the wife said was true then we are concerned that the discharge should be made on this basis.

Hon Yeung JA :

34.I agree with the judgment of Cheung JA and I have nothing else to add.

Hon Lam J :

35.I also agree with the judgment of Cheung JA.  The only thing I wish to add is that I am more than sceptical of the husband’s affirmation.  To start with, the wife has said in her affirmation that after she left the former matrimonial home she had informed the husband’s colleague of her new address and also sent a message to the husband’s portable phone by SMS informing him of her new address.  The husband in his affirmation in response did not deal with this specifically.  The husband said he knew about the moving away from the matrimonial home by the wife in or around late September 2005.  He did not quite explain under what circumstances he came to know about that.  One might ask rhetorically whether it was due to the message or the information from the wife as to her new address.

36.I also find it incredible that it was merely a matter of coincidence that the husband started to find a lawyer to prepare for his new effort in terms of petition for divorce in October 2005 soon after the wife has left the former matrimonial home. 

37.The husband in his affirmation seems to put the blame on the lawyers in terms of preparing documents for the divorce without actually letting him know what exactly was said in its content.  On my part I do not accept that for a single moment.  If one looks at the contents of these documents including the petition for divorce based on desertion and the affirmation in support of his application for substituted service, the matters set out therein could not have been stated there without instructions from the husband.  I do not believe for one moment that the solicitor just took it on himself or herself to draft documents based on his or her own imagination. 

38.For the husband Mr. Chow submitted that obviously the marriage is at an end and it will result in a divorce sooner or later.  That may or may not be true.  I am however impressed by the wife’s submission that as a matter of justice it should be acknowledged that the marriage is at an end not because of her desertion. 

39.It is because of the improper procedures adopted in the Family Court by the husband and his legal advisers that the wife was deprived of the opportunity to defend against his allegations of desertion which even on the evidence of the husband had no basis. 

40.I think it is time that litigants in particular litigants involving in family proceedings which have serious and long term consequences for the parties should appreciate that when they take a step in legal proceedings it behoves them and also their legal adviser to follow the rules and the spirit of the law.  I think this is the reason why the Court of Appeal in Wiseman v. Wiseman as in the present case in this judgment the court exercise its discretion in setting aside the decree of divorce. 

41.In coming to this conclusion I emphasize that we have not ignored the situation of the second wife.  We have sympathy with her because she is now no longer validly married as a result of the decree in these proceedings being set aside.  It is not something that should have happened to her but the fault lies with the husband. 

42.As Denning LJ said in Wiseman v. Wiseman at page 93, “Every woman when she marries takes her husband on trust to some extent.  If she marries a man who describes himself as a bachelor she takes him on trust that he is not a married man.  If she marries a man who says he had divorced his wife should take him on trust that he had obtained a divorce properly.  If the trust turns out to be misplaced it is a misfortune which many women have suffered before her but it is not unjust.”  I take His Lordship to mean that it is not unjust as between her and the first wife.

43.Therefore, I agree with my Lord that the appeal must be allowed and those orders referred to by my Lord have to be set aside.

Costs

Hon Cheung JA :

44.The husband is ordered to pay the costs of the appeal and below.

Mr. Enzo W. H. Chow, instructed by Messrs Lau Chan & Ko, for the Petitioner

Respondent, in person, present