Read the full judgment text of CACV 000380/2007 on BabelCite. This Court of Appeal judgment was delivered on 11 June 2008 before Tang VP, Lam J, A Cheung J.
Family law – variation of consent order – periodic maintenance payments – Matrimonial Proceedings and Property Ordinance (Cap 192) s.11(7) – wide and unfettered discretion – whether consent order can be varied in absence of material change of circumstances – whether absence of legal representation vitiates consent order – whether periodic payment order can achieve financial clean break – common law authorities on weight of consent order – marriage of short duration – parties reconciled after joint application for divorce – wife did not receive decree nisi or absolute due to wrong address given by husband in joint application – husband and wife married on 8 January 2002 following brief cohabitation – parties separated in February 2002 – joint application for divorce filed 12 March 2003 on ground of living apart – decree nisi granted 17 September 2003 and decree absolute granted 2 February 2004 – parties reconciled after joint application and continued to live together until early 2005 – wife allowed herself to become pregnant during reconciliation on husband's expressed wish for child but had abortion upon discovering he did not want child by her – wife was made bankrupt from negative equity in first marriage – husband was senior police inspector earning $73,000/month – wife worked as planning and procurement officer earning $21,000/month and supported son and mother – consent order made on 24 March 2006 by consent under Financial Dispute Resolution Pilot Scheme – husband agreed to pay wife $4,500/month during joint lives until her remarriage – husband applied by summons on 28 July 2006 to vary consent order to reduce payment to $1,000/month – at hearing on 8 May 2007 before Deputy District Judge Levy husband sought to limit payment to 6 months – trial judge rejected allegation of undue pressure by court but varied order to terminate payments in February 2008 when wife would be discharged from bankruptcy – Court of Appeal allowed wife's appeal – held that jurisdiction to vary under s.11(7) is wide and unfettered but earlier order carries weight – following Lewis v Lewis [1977] 1 WLR 409, Garner v Garner [1992] 1 FLR 573, Gray v Gray [2001] 1 HKLRD 580, L v C [2007] 3 HKLRD 819 and Miller v Miller [2006] 2 AC 618, consent order is presumptively correct and party seeking variation must show good and substantial cause – absence of legal representation not a vitiating factor in ordinary case – clean break can only be achieved by lump sum order not periodic payment order – Hong Kong has no equivalent to English Matrimonial Causes Act 1973 s.31(7A)-(7F) – trial judge erred by placing no weight on consent order and misdirecting herself on clean break – appeal allowed – original consent order restored – 2nd applicant awarded costs of appeal.
Legal issues: Variation of consent order for periodic maintenance in absence of material change of circumstances · Effect of absence of legal representation on weight of consent order · Whether variation of periodic payment order can achieve a financial clean break
Outcome: Appeal allowed; original consent order restored
Cited by 30 cases