Wong Tat Lun Eddie v. Wong Chan Siu Ping
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IN THE COURT OF APPEAL 1987 No. 111 BETWEEN
______________ Coram: Hon. Cons, V.-P., Barker & Clough, JJ.A. Date of hearing: 6th November, 1987 Date of delivery of judgment: 6th November, 1987 ______________ JUDGMENT ______________ Cons, V.-P.: 1. This is an appeal against the decision of His Honour Judge Sharwood to grant a decree of divorce to the husband in the proceedings below, despite allegations by his wife that it would result in grave financial or other hardship to her and that in the circumstances it would be wrong to dissolve the marriage. 2. The parties were married in 1967. It was apparently a shotgun wedding and the marriage was not at all a happy one. Nevertheless husband and wife did manage to live together for 14 years and produced five children, whose ages are now in the range of 7 to 20 years. 3. The financial aspects of the marriage were unusual, at least in comparison with those of the marriages in the authorities to which we have been referred this morning, in that basically the husband has never directly provided for this wife at all. As soon as they were married the couple moved into a flat provided by the husband’s father, who in addition covered all their other needs of food, clothing and so on, and then later, for the children as well, including domestic help and transport. As the wife put it in one of her affirmations they “lived as part of a traditional extended family”. 4. In 1981, that is 5½ years before the husband presented his petition, he went to America. He did not tell his wife why he went or even that he was going. Since then she has seen him at the most on two occasions, and then for very short periods of time. In fact the husband works for his father in America, as he did here. He manages the American subsidiary of one of his father’s companies, of which and of some five other companies controlled by his father, he is also a director. 5. His wife continued to reside in the flat provided by her father-in-law and she and her five children were maintained by him as before, the monies coming from the family businesses. Now only the two youngest children remain with her, the three eldest children having gone last year to study in America, where they his mistress, with whom he took up shortly after going to America, and who has since borne him two children, now aged three and five. 6. That is the basic story which appears from the evidence of the husband and wife and from affirmations which were taken as part of the evidence. They were the only two witnesses called. I emphasize that because, although one might have expected it, the father-in-law was not called. So the judge below did not have the benefit of his views on the situation, nor do we; nor do we have the judge’s comments on what type of man he is, As to the father’s intentions, we only know what his son said them to be. The wife had not even discussed them with him. The judge however was not impressed by the husband. He was quite blunt about it. He said he found him neither intelligent nor honest. 7. Although for the past year or so the wife has been receiving interim maintenance from her husband, her financial position in essence depends entirely upon her father-in-law. Her own assets are merely a few items of jewellery, some small amounts in the bank and a modicum of shares. The husband’s true position we do not know, because, as the judge observed, his evidence in this respect simply did not add up. 8. The authorities to which we have been referred this morning show that a decree may be refused by reason of grave hardship if the wife has lost potential pension rights. That is apparently the most common cause of intervention in this way. In the present instance however the position is quite the reverse. It is present benefits which she may potentially lose, and they are not even rights to which she is legally entitled. They come to her by courtesy of her father-in-law. 9. From the factual point of view the judge came to the conclusion, on such evidence as there was before him, that the present situation would in all probability continue indefinitely. There was present to his mind the possibility of changes that might follow a change in status of his daughter-in-law, but even so he felt that in fact there would be none. It was for this reason that he was not satisfied that the dissolution of the marriage would result in grave hardship. I see no reason to disagree with his conclusion. I appreciate that the financial situation of the wife, vis-a-vis her husband, is one of difficulty. But the difficulties, as I see them, spring inherently from their way of life. They will be inevitable where a couple live “as part of a traditional extended family” with the finances of the family under the control of a patriarch who is not subject to the jurisdiction of the court. I do not see that a decree of divorce will affect them one way or another. 10. There has been raised before us today, although not below, the suggestion of another kind of hardship, that is a hardship which will be suffered by the wife should the husband at sometime return from America and bring with him his new wife and children to live also as part of the traditional extended family. Such hardship could not be justified on the evidence, which was not addressed to that all. But even assuming for the moment that it would be grave hardship, I have to say that for my part I would think that there is little likelihood of the husband so returning, or that even if he did, that his new wife would be willing to accept a family life of that kind. 11. For these reasons, I would dismiss the appeal.
Barker, J.A.: 12. I agree. The judge below was faced with a paucity of evidence, but on such evidence as was before him I can see no ground for interfering with the inferences that he drew or the conclusions at which he arrived. I too would dismiss the appeal.
Clough, J.A.: 13. I also agree that this appeal should be dismissed and I wish to add nothing further.
Miss Jacqueline Leong (Messrs. Wong, Hui & Co.) for the Appellant/Respondent Robert Tang, Q.C. & Albert Tsang (Messrs. Y.C. Lee & Pang) for the Respondent/Petitioner |