Aurora S Camaclang v. Karl-heinz Schleiter and Others

CACV000104/1993

IN THE COURT OF APPEAL

1993, No. 104
(Civil)

_______________

_______________

Coram: Hon Penlington, J.A., Mortimer, J.A. and Godfrey, J. in Court

Date of hearing: 15 October 1993

Date of delivery of judgment: 26 October 1993

_______________

J U D G M E N T

_______________

Godfrey, J. (delivering the judgment of the Court):

1. This is an appeal from an order made on 3rd June 1993 by Deputy Judge Gill, sitting in the District Court of Hong Kong, and exercising that Court's divorce jurisdiction. The judge dismissed an application by the petitioner ("the wife") to strike out the cross-petition of the 1st respondent ("the husband") and to direct that her petition proceed undefended. The wife's appeal came before this Court on 15th October 1993, when this Court indicated that it proposed to dismiss the appeal with costs, and to give later its reasons for doing so. This we now do.

2. It will be convenient briefly to refer, at the outset of this judgment, to the statutory background.

3. The sole ground on which a petition for divorce may be presented to the court by either party to a marriage is that the marriage has broken down irretrievably: see the Matrimonial Causes Ordinance, Cap.179 section 11.

4. The court hearing a petition for divorce is not to hold the marriage to have broken down irretrievably unless the petitioner satisfies the court of one or more of five facts: see s.11(1).

5. One of those facts is that the respondent has committed adultery and the petitioner finds it intolerable to live with the respondent: see s.11A(1)(a). In this connection, the court has a statutory duty to enquire so far as it reasonably can into the facts alleged by the petitioner and into any facts alleged by the respondent : see s.15(1)

6. The wife in the present case asserts that the husband has committed adultery and that she finds it intolerable to live with him.

7. The wife's assertion that the husband has committed adultery is not disputed by the husband. However, her assertion that she finds it intolerable to live with him is disputed. It appears that, at an earlier stage of the proceedings, the husband was prepared to admit the wife's allegation that she found it intolerable to live with him; but in an amendment to his answer, albeit one made without leave, the husband now disputes this assertion. (The fact that the amendment was made without leave is irrelevant since the wife, having put in a reply to the amended answer, must be treated as having waived the irregularity.)

8. The court's statutory duty, to enquire so far as it reasonably can into the facts alleged by the petitioner and into any facts alleged by the respondent, means that the court has the duty on the balance of probabilities to investigate that the petitioner is telling the truth, i.e., to investigate the allegation that the petitioner finds it intolerable to live with the respondent : see Cleary v. Cleary [1974] 1 WLR 73.

9. Mr Coleman, for the petitioner, submitted to us (as he had submitted to the judge) that the husband had admitted that the marriage had broken down irretrievably and that the husband had committed adultery. Further, he submitted, the husband had, at one stage at any rate, admitted that the wife found it intolerable to live with him although he now sought to resile from that admission. In these circumstances, said Mr Coleman, the judge should have realized that there were already sufficient grounds before the court on which to grant a decree and should have directed that the wife's petition should proceed as an undefended petition. The result would have been, as Mr Coleman accepted, to shut out the husband from any right to cross-examine the wife, or to lead evidence, on the issue whether or not she found it intolerable to live with him. That course, Mr Coleman Submitted, was justified, because the question whether the wife finds it intolerable to live with the husband was to be tested subjectively and having regard to the background (the husband has not only committed adultery but has gone off to live with another woman) any suggestion made by him that the petitioner does not find it intolerable to live with him simply could not be sustained.

10. We recognize that the husband's chances of success in rebutting the wife's contention that she finds it intolerable to live with him may appear remote; but that cannot possibly justify this Court in shutting out the husband altogether from the right to cross-examine the wife, and to lead evidence, on a matter which is in dispute between the parties. Even in ordinary civil proceedings, as distinct from matrimonial suits, the court will not shut out a defendant from raising a defence unless, in raising it, he is abusing the process of the court. And, where, as here, it is the duty of the court to enquire, so far as it reasonably can, into the facts alleged by the wife and into any facts alleged by the husband, the court would have to be particularly careful before taking so drastic a course.

11. The judge was right to dismiss the wife's application.

12. For these reasons we dismissed the wife's appeal with costs.

Representation:

Mr Russell Coleman (M/s Hastings & Co.) for Petitioner/Appellant

Miss Elaine Longmore (M/s Oldham, Li & Nie) for 1st Respondent