Kja v. Kysh Formerly Known As Ysh

FCMC 4456 / 2013

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES

NUMBER 4456 OF 2013

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Coram: Her Honour Judge Sharon D. Melloy in Court

Dates of Hearing: 13 March and 23 and 24 July 2014

Date of written closing submission: 7 August 2014

Date of Judgment: 22 August 2014

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J U D G M E N T
(Defended Petition)

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Introduction

1.This is a defended divorce. The husband seeks a decree based on the wife’s unreasonable behavior, which in turn the wife resists.

2.The parties married in March 2003 when the husband was nearly 60 and the wife 37 years of age. This was the husband’s fourth marriage, whereas the wife had not been married before. By all accounts the marriage has been a very troubled one with the husband originally issuing proceedings for divorce on the basis of the wife’s unreasonable behaviour in 2011. The parties subsequently reconciled and the original divorce petition was withdrawn. The wife undertook at that time to pay the husband HK$10,000 per month for his financial support and she also entered into a non molestation undertaking. Unfortunately however the parties’ reconciliation was short lived and on the 20 March 2013 the husband filed a second petition again based on the wife’s unreasonable behaviour. The wife filed an Answer on the 6 May 2013. She did not cross petition. The husband filed his Reply on the 21 May 2013.

3.It is accepted that the wife, who is of Chinese descent, has been the major bread winner throughout the marriage. She works full time in the financial field whereas the husband, who is American, is a retired musician and academic.

4.It should also be noted that the husband has some very significant health issues and that he is presently in remission from stage IV cancer of the oesophagus.   

The issue

5.There is only one issue to determine in this case namely:-

On the balance of probabilities has the wife behaved in such a way that the husband cannot reasonably be expected to live with her and consequently can the parties marriage be said to have broken down irretrievably?

The law

6.In so far as the law is concerned there is only one ground for divorce in Hong Kong namely that the marriage has broken down irretrievably. This can be proved by one or more of the five facts found in s 11A of the Matrimonial Causes Ordinance, Cap 179. It is also possible to apply for a divorce jointly based on one year separation with consent. In this instance the husband relies on the ground of unreasonable behaviour.

7.When it is clear that a marriage has broken down irretrievably, the parties are encouraged by the courts to adopt a sensible and pragmatic attitude with a view to dissolving their marriage as quickly and as painlessly as possible.  Where the particulars pleaded are sufficient to enable a decree to be granted, then the court will do so without investigating into any of the other allegations made. This is particularly so where separation is pleaded in addition to a fault based ground, but the same principle applies where there are multiple allegations made in respect to fault. It is sufficient to investigate only to the extent that fault is proved. (See Grenfell v Grenfell [1978] Fam 128).  Rayden puts it thus:-

Facts sufficient on which to grant a decree

9.65 Where on the face of the pleadings there are facts sufficient to enable the court to grant a decree of dissolution, the Court of Appeal has firmly declared that it is in general wrong to permit a party to have other allegations investigated.  In particular, where on the face of the pleadings five years’ [in Hong Kong 2 years] separation is alleged by a respondent and admitted by the petitioner who has alleged behaviour in the petition, there is no point in conducting an inquiry into behaviour merely to satisfy feelings, however genuinely and sincerely held by the petitioner.

The Ground of “unreasonable behaviour”

8.S 11A 2(b) Matrimonial Causes Ordinance, Cap 179 states that:-

“11A. Proof of ground for petition

(2) The court hearing a petition for divorce shall not hold the marriage to have broken down irretrievably unless the petitioner satisfies the court of one or more of the following facts –

……

(b) that the respondent has behaved in such a way that the petitioner cannot reasonably be expected to live with the respondent;”

9.The appropriate test was originally formulated in the case of Livingstone-Stallard v Livingstone-Stallard 1974 2 ALL ER 766. In that case the Judge posed the following question:-

Would any right thinking person come to the conclusion that this husband [here the wife] has behaved in such a way that this wife [here the husband] cannot reasonably be expected to live with him [her], taking into account the whole of the circumstances and the character and the personalities of the parties.

10.It is then both a subjective and an objective test.  The issue is not so much whether one spouses actions are unreasonable per se (although that may be the case), but rather whether this particular spouse found the other spouses actions unreasonable. In this instance did this particular husband – a 70 year old man with cancer - find his wife’s actions unreasonable? The court will consider this and will then go on to determine whether or not the husband can be reasonably expected to live with the wife. This test has been approved in a number of cases since, including O’Neill v O’Neill 1975 3 All ER 289 which was cited with approval in the Hong Kong case Lindsay v Lindsay FCMC 1569/1982.

11.In considering this matter I should say at the outset that I accept that the husband has referred to a number of incidences in his petition which occurred prior to the parties’ reconciliation following the dismissal of the first divorce petition. I agree with the point made by counsel for the wife that these incidences are only relevant in that they provide the court with some general background. Given that the parties then reconciled they cannot subsequently be used as evidence of the wife’s alleged unreasonable behaviour. In that regard reference should also be made to Section 15A (4) Matrimonial Causes Ordinance, Cap 179 which states that

(4) Where the petitioner alleges that the respondent has behaved in such a way that the petitioner cannot reasonably be expected to live with him, but the parties to the marriage have lived with each other for a period or periods after the date of the occurrence of the final incident relied on by the petitioner and held by the court to support his allegation, that fact shall be disregarded in determining, for the purposes of section 11A(2)(b), whether the petitioner cannot reasonably be expected to live with the respondent if the length of that period or of those periods together is 6 months or less. (Amended 29 of 1995 s.17)

12.Thus when considering the incidences of the alleged unreasonable behaviour on the part of the wife I intend to confine myself to matters that have occurred more recently.

13.It has also been suggested that because the parties continued to live under the same roof and to share some semblance of a communal life after the divorce petition was issued that this is evidence that the parties have infact continued to live together and therefore in the words of counsel for the wife in paragraph 66 his closing that:-

Taking all the evidence as a whole it is inconceivable as to why the Husband would still carry on all those daily activities with the Wife and went on to those overseas trips with the Wife if the Wife has behaved in such a way that the Husband cannot reasonably be expected to live with her.

14.In considering this point I have also taken into account the case of Bradley v Bradley [1973] 3 All ER 750, referred to by the solicitor for the husband where Megaw LJ said

In my judgment that subsection[1] does not have the effect that, if the wife [here the husband] has continued to reside in the same household with the husband [here the wife] for a period of more than six months after the last act relied on by her as showing that the husband’s behavior was such that she could not reasonably be expected to live with him, that necessarily produces the result that she must fail in her petition under s 2(1)(b) of the 1969 Act[2].  It is I think clear, when one compares the provisions of s 3(3)[3] with the provisions of s 3(4)[4], that Parliament has quite deliberately and expressly not provided in the sub-s (4) that the mere fact that the continuing to live with the other spouse has gone on for more than six months necessarily produces the result that the petition under s 2(1)(b) must fail.

With respect I agree with that analysis of section 15A (4) Matrimonial Causes Ordinance, Cap 179.       

Discussion

Has the wife behaved in such a way that the husband cannot reasonably be expected to live with her?

15.In summary the husband complains of the wife’s nagging and of her jealous disposition and of her verbal and physical abuse of him. He said at paragraph 2 – 6 of his petition that:-

2. As embodied in the Consent Summons filed on 7^th March 2011 under the 2011 Suit, the Respondent gave her undertaking to the Court and to the Petitioner, inter alia,:-

(a) not to molest or assault the Petitioner; and

(b) to pay to the Petitioner HK$10,000 a month commencing from 17^th March 2011 until his death

(collectively “Her Undertaking”).  In the light of Her Undertaking, the Petitioner withdrew his Petition filed under the 2011 Suit and reconciled with the Respondent.

3. By about the summer of 2012, the Respondent had resumed her unreasonable behaviour.  At a time she was well aware he had various health issues affecting him including hypertension, cirrhosis of the liver, gastric and oesophageal complications and oeasophageal cancer, and in breach of her promise and Her Undertaking not to molest or assault the Petitioner, the Respondent:-

(a) assaulted the Petitioner when he neared the entrance to his study in the morning and evening of 13^th August 2012.  The Petitioner had to barricade himself the entire night in his music study but the Respondent kept pacing, ranting and raving outside his door and screamed strings of obscenities at him;

(b) ripped off the Petitioner’s spectacles on one occasion, bent the frame and dropped them onto the floor;

(c) scratch and injured the Petitioner with her sharp fingernails on or about 23^rd September 2012;

(d) has verbally abused the Petitioner and made continuous loud and meaningless nagging innumerably at least since mid-2012, even during his hospitalization in January and February 2013 at the X Cancer Center in Taiwan when his survival rate was less than 50% and/or he, hindered by his painful throat, could not voice out any reply or objection; and

(e) has sent him numerous abusive and degrading text messages.

4. The Respondent has failed to honour her promise and Her Undertaking to pay HK$10,000 a month to the Petitioner since October 2012, and has thereby caused financial stringency to him.

5. The Respondent is extremely jealous and would falsely accuse the Petitioner of having crushes, affairs or even remarriage plans whenever he has interaction with other women, even the dozens female hospital staff at the Cancer Center.  To the Respondent, near every direct interaction between another woman and him connotes romance. The Respondent kept nagging during her visit in February 2013 at the Cancer Center after having seen a nurse take pulse for him in the ordinary discharge of duties notwithstanding that the Petitioner is a 70-years-old-cancer-patient and that there is language barrier between the nurse and him.

6. The Respondent ignores the Petitioner’s pleas to stop her rudeness, threats, molestations and assaults. Her behaviour causes enormous stress, insomnia and, even when he could sleep, nightmares to him, which will hinder his healing progress.

7. In the premises, the Petitioner finds it intolerable to continue living with the Respondent.

16.As indicated above in Grenfell it is not necessary to go into each and every allegation when considering whether or not this marriage has broken down irretrievably. Consequently I intend to confine myself to the allegations surrounding the husband’s hospitalization in 2013 at the cancer Centre in Taiwan and of paragraphs 3(d) and (e) and 5 and 6 of the petition. The husband accuses the wife inter alia of nagging, of extreme jealousy and of falsely making accusations against him. He also says that her behaviour caused him enormous stress and insomnia.

17.In support of his case the husband referred inter alia to a number of whatsapp messages that the wife sent to him between the 12 – 16 January 2013 and further messages on the 20 and 22 January and the 9 and 13 February 2013. To put this in context the husband was originally hospitalized in Hong Kong on the 29 November 2012. He was granted legal aid to issue a second divorce petition in December 2012. He was then treated at the K Foundation X Cancer Centre in Taiwan from the 28 December 2012 – 6 March 2013. Understandably in the circumstances the second divorce petition was not issued until the 8 April 2013. These whatsapp messages were sent to him by the wife whilst he was in hospital receiving treatment for an advanced stage of cancer.

18.I do not intend to refer to all of the whatsapp messages – but the following exchange is an example of the exchange. On the 12 January the wife said as follows:-

u know what I am feeling? your attitude changing to me again.

I felt J is not my friend

The husband replied:-

as is the case many times before, the only problems are in your head.  Please wake up!

The wife then continued:-

J is looking for boyfriend

u always emphasis u r looking for girlfriend also.

She continues

I bet she comes to your room everyday have good communition. nice American talk, very soon u seen her as close friend and give me the bad mood alone.

I am always your stranget and enemy

u r very close to her family too .

how many days y met het?

u should learn to avoid any woman killing your family

I know u think I am full of shit coz u just see me as your paying servant, no right to talk.

Don’t think E pay for u everything.  Your servant has to

I bet if I don’t ask u, u won’t give me any information, except paying for me.

I am just always a outsider to watch u making love with somebody. I even can’t share any.  I can see J must be in love now.

Actually I could feel when you found your new girlfriend everytime from your bad mood without reason.

u tell your E u reject my pay only.

why don’t u say something nice to

Please tell me if u don’t want me visit u.  Don’t want to bother u.

It is clear that the husband finds the messages difficult to deal with:-

Read Yr last 25 messages!  Totally insane, disgusting, and sad. I cannot take this anymore!!!!  Don’t come. Leave me in peace.

Do not come tomorrow. I don’t need more pain! Instead, see a REAL doctor, & show him

19.To put this exchange into some kind of context E was the husband’s daughter by a former marriage. There was a dispute over payment for the cancer treatment. E asked the wife to contribute but she refused to do so. Instead payment was met substantially by E. The whatsapp messages on their own show the wife behaving in an aggressive and jealous manner. This would be so – even if the husband were not in hospital receiving treatment for an advanced stage of cancer. Objectively it seems to me that this constitutes unreasonable behaviour. Subjectively it is clear that the husband was at the end of his tether. During the trial the husband gave evidence that the wife’s behaviour in this respect continued after his discharge from hospital. I accept what he says in this respect.

20.It is suggested that given that the husband returned to the matrimonial home after his cancer treatment and that he then took up some domestic chores as before that this is evidence that the parties can continue to live together as man and wife. Further it is argued that the wife’s unreasonable behaviour is not therefore of sufficient seriousness that the husband cannot be expected to live with her. With respect I do not agree. I accept that the husband returned to live with the wife out of necessity and that he really had no option but to do so. I accept the husband’s evidence that they are living under the same roof but in very strained circumstances, that they do not have a sexual relationship and that they have not resumed cohabitation.

21.Given my findings above, I do not intend to go into the other allegations made by the husband. I am of the view that the particulars pleaded by him in paragraphs 3 (d), 3 (e) and 5 and 6 of the petition as referred to above have been proved and are sufficient to enable a decree to be granted. I do not therefore intend to investigate into any of the other allegations made. (See Grenfell v Grenfell [1978] Fam 128). In coming to this conclusion I am also mindful of the fact that when examining all of the evidence before me and when asked, that the husband said that there was no possibility of reconciliation with the wife.

Conclusion

22.I will therefore grant a decree nisi of divorce based on the wife’s unreasonable behaviour.  It seems to me that this marriage has broken down irretrievably and that the husband cannot be reasonably expected to live with the wife especially given his ongoing health issues.

23.The wife was warned on several occasions of the possible cost consequences if she failed to be reasonable with respect to the litigation. I will therefore make an order nisi to be made absolute in 28 days time, that the wife do pay the husband’s costs of and incidental to the suit, including any costs reserved, such costs to be taxed on a party and party basis if not agreed.

Ms A Hui of Wong, Hui & Co for the Petitioner

Mr A Fung instructed by Kelvin, Cheung & Co for the Respondent