Yue Shun Meen-kun, Marian v. Yue (or Yu) or (U) Tung Sang, Stephen

IN THE SUPREME COURT OF HONG KONG

DIVORCE JURISDICTION

ACTION NO.77 OF 1971

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BETWEEN

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Coram : Huggins, J.

Date: 20 April 1972

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J U D G M E N T

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1. This is an application purporting to be under r.6(4) of the Matrimonial Causes Rules 1972. Those Rules came into force on 1st April this year. The petition asks for an order that the Petitioner do have leave to implement an agreement for maintenance of the Petitioner and custody, reasonable access and upbringing and schooling of the children of the family, that agreement being exhibited. Under the agreement the husband, who is the Respondent, is to have the custody of the two younger daughters of the family and the wife to have reasonable access; the wife is to have custody of the eldest daughter with the husband having access; and the husband agrees to pay certain sums of money to the solicitors for the wife in relation to maintenance and costs.

2. I say this application “purported” to be made under r.6(4). In reality I think it should be under para.(3), but I take no point as to that: para.(4) to which I shall have to refer further relates to the filing of an affidavit in support of the application. Para.(3) states that an application made after the presentation of a petition shall be made by application or summons in the proceedings, and to find out what sort of application is referred to one has to look at para.(1). The material part of that paragraph is

“…… on an application made, after the presentation of a petition, to the court in which proceedings for divorce ..... are pending, the court may take into consideration for the purposes of s.15 of the Ordinance any agreement or arrangement made or proposed to be made between the parties and give such directions in the matter as the court thinks fit.”

Clearly, then, one has to go further back to the Ordinance itself to find out what is the purpose of the Rule. Section 15, which is referred to in the Rule, provides in sub-s.(1) that

“On a petition for divorce it shall be the duty of the court -

(a)      to enquire, so far as it reasonably can, into the facts alleged and whether there has been any connivance or condonation on the part of the petitioner and whether any collusion exists between the parties .......”

and then in sub-s.(2)

“Provision may be made by rules for enabling the court, on application made either before or after the presentation of the petition, to take into consideration for the purposes of this section any agreement or arrangement made or proposed to be made between the parties and to give such directions in the matter as the court thinks fit.”

This therefore is the reason for r.6, that the court shall be able to satisfy itself as to whether there has been connivance or condonation or whether there has been any collusion.

3. There is nothing more to indicate what sort of evidence the court should expect, but para.4 of r.6 states that

“At the time of the filing of an originating application or the issue of a summons under this rule, there shall be filed an affidavit by the applicant setting out particulars of the agreement or arrangement in question and the grounds on which the application is made ……”.

The Applicant in the present case has filed an affidavit setting out particulars of the agreement, which has been exhibited, but there is no indication of the grounds upon which the application is made and one has to ask what is meant by “grounds of the application”. The affidavit which is before me merely recites that there have been negotiations and that, finally, a settlement was reached. In my view that is not sufficient. Bearing in mind the object of this Rule one has, in my view, to have an affidavit setting out as far as may be the circumstances which are relevant to a consideration of the question whether there has been connivance, condonation or collusion. That this is the correct view is supported by the observations of the President of the Probate Divorce and Admiralty Division, Sir Jocelyn Simon, in M. v. M. (No.1)(1). At p.318 he expressly says that

“...... generally in adjudication under s.5(2)”, [which provision is in identical terms to our s.15(2)] “the court will need to be apprised of the respective means of the parties”.

I do not say that that is all that has to be included in the affidavit: anything which is relevant to the question whether the parties are acting fairly and with no intention other than to reach a reasonable settlement of the matters in dispute ought to be set out: see the dicta of Scarman,J. in Nash v. Nash(2).

4. In the presence case I am not satisfied that it is proper for me to reach a conclusion on the information which is before me and, therefore, I shall adjourn this application for the filing of further evidence.

20th April, 1972.

(1) 1967 P. 313.

(2) 1965 1 All E.R. 480 at pp.482/3.