Nlt v. Lykj

FCMC 8680/2012

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES NO 8680 OF 2012

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JUDGMENT
(Defended Petition)

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1.This is a defended divorce.  The wife seeks a decree based on the husband’s unreasonable behaviour.  The husband for his part says even now that he does not believe that the marriage is over. 

2.It would appear from both parties’ testimony that this marriage has been in considerable difficulty for a very long period of time.  The wife makes a number of allegations against the husband, most of which he denies.  What is not in dispute, however, is that the wife moved out of the matrimonial home in May 2009 after a very heated argument which also involved the elder child. Shortly thereafter, the wife discovered incriminating evidence which implied that the husband was having an affair.  The husband accepts that to be the case.  He says that he had a relationship outside the marriage sometime between 2007 and 2008.  The wife discovered this in June 2009.  Both parties agree that their sexual relationship came to an end from May 2009 when the wife moved out. 

3.It seems that the wife’s father then intervened in an informal way and that he acted as a middleman, helping the parties to resolve disputes as and when they arose.  It was because of this that the parties agreed, rather strangely in the circumstances, that the wife’s moving out in May 2009 would not constitute a separation for legal purposes and they entered into an agreement to that effect.  It is not clear whether the parties were legally represented at that time.

4.Two years later in May 2011, the wife moved back into the matrimonial home but it does not seem that this was in order to effect a reconciliation.  Rather, it seems to be accepted that there was an arrangement between the two whereby the husband supported her financially in part and the wife agreed to take care of the children’s homework.  The husband in turn cooked and undertook most of the household chores.  To all intents and purposes, it seems that the parties were simply flat sharing and dividing up the domestic responsibilities between the two of them.  There is also some dispute regarding the extent to which they interacted socially or as a family.  However, their marital relationship did not recommence and that much is clear.

5.The wife now asks that the marriage be dissolved, something that even now is still being resisted by the husband.

Background

6.The wife trained as a dancer at X and her father is an academic.  She is now 36 years of age.  The husband for his part says he has had a number of occupations.  It seems that he was unemployed for a while and that he was also engaged previously as a real estate agent.  He says that he invests in stocks and shares on his own account and it seems that he also previously ran a small taxi company.  He is now 47 years of age.

7.The parties married in May 2004 and had two children, a daughter who is aged nearly 9 years and a son who is 6 years old.  The wife filed for divorce on 18 June 2012.  The husband filed an Answer on 24 August 2012. He did not cross-petition and the wife subsequently filed her Reply on 23 November 2012. 

8.There are a number of issues to be determined.  Firstly, on the balance of probabilities, has the husband behaved in such a way that the wife cannot reasonably be expected to live with him and consequently can the parties’ marriage be said to have broken down irretrievably.  Secondly, did the parties live together as man and wife for a period in excess of six months following the wife’s discovery of the unreasonable behaviour complained of. 

The law

9.There is only one ground for divorce in Hong Kong and that is that the marriage has broken down irretrievably.  This can proved by one or more of the five facts found in section 11A of the Matrimonial Causes Ordinance, Cap. 179.  It is also possible to apply for a divorce jointly based on one year’s separation.  In this instance, as I have said, the wife relies upon the ground of unreasonable behaviour.  Where it is clear that a marriage has broken down irretrievably, the parties are encouraged by the courts in Hong Kong 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, as indicated during the trial, the court will do so without investigating into any of the other allegations made, see Grenfell v Grenfell [1978] Family 128.  Rayden puts it thus at paragraph 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 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 5 years separation is alleged by the respondent”,

- which in our case would be 2 years,

“and admitted by the petitioner who alleged behaviour in the petition, there is no point in conducting an enquiry into behaviour merely to satisfy feelings however genuinely and sincerely held by the petitioner.”

10.Consequently, the question that arose in this case was whether or not the parties had in fact been separated for 2 years when the wife issued her divorce petition in June 2012.  The difficulty in this instance, however, is that although the parties had begun living separately and apart in May 2009, they had also entered into an agreement which stated quite categorically that they were not legally separated. 

11.Further, the wife for her part said in the witness-box that she did not formulate the intention to separate until sometime in 2010 which is after she left the matrimonial home initially in May 2009.  Up until that point she had still held out some hope that the marriage could be saved.  She said that she had been very shocked when she discovered the photographs of the husband with another woman in June 2009 but she did not actually decide that the marriage was over from her perspective until sometime between 2010 and 2011.  During that time her father acted as an informal middleman and attempted to mediate between the couple.  This led in part to the wife moving back to the matrimonial home in May 2011.  Unfortunately, from the wife’s perspective, the situation between her and the husband did not improve and she then decided to proceed with a divorce.  As I have said, she issued proceedings on 18 June 2012.

12.Unfortunately, this sequence of events has made it difficult to determine when exactly the husband and wife became separated.  This has meant that a short trial has become inevitable. 

13.Turning next then to the grounds of unreasonable behaviour, section 11A(2)(b) of the Matrimonial Causes Ordinance states that:-

“The court hearing a petition for divorce shall not hold that the marriage has broken down irretrievably unless in this instance it can satisfy the court that the respondent has behaved in such a way that the petitioner cannot reasonably be expected to live with the respondent.”

14.So what is meant by that?  The appropriate test was originally formulated in the case of Livingstone-Stallard.  In that case the Judge posed the following question:-

“Would any right-thinking person come to the conclusion that this husband has behaved in such a way that this wife cannot reasonably be expected to live with him taking into account the whole of the circumstances and the character and the personalities of the parties. It is then both a subjective and an objective test. The issue is not so much whether one spouse’s actions are unreasonable per se, although that may be the case, but rather whether this particular spouse found the other’s actions unreasonable. On that basis, the court will determine whether or not the one could reasonably be expected to live with the other.”

15.This test has been approved in a number of cases since, including O’Neill v O’Neill [1975] 3 AER 289, which was cited with approval in the Hong Kong case Lindsay v Lindsay referred to below.  Reference should also be made to the six month rule at section 15A of the Matrimonial Causes Ordinance which states in effect that if the parties have lived together as man and wife for a period in excess of 6 months after the last incident of unreasonable behaviour complained of then that incident cannot be relied upon in support of the petition.

Discussion

16.In summary, the wife complains of four categories of unreasonable behaviour, namely:-

a)  the husband’s extramarital affairs;

b)  incidents of domestic violence;

c)  his failure to maintain, and

d)  his lack of concern for her general welfare and wellbeing.

I will deal with each of these in turn.  In doing so I should add that in part what is described is simply symptomatic of a marriage breaking down:-

a) The husband’s extramarital affairs

17.The wife did not plead adultery but only unreasonable behaviour.  As set out above, the husband does not deny that he had at least one extramarital affair but on his case this took place between 2007 and 2008 which is before the wife moved out of the matrimonial home in May 2009.  The wife for her part says that she believed that the affair was conducted between 2006 and 2007.  Therefore, on both party’s case, although they probably lived together as man and wife for a period in excess of six months after the affair, from the wife’s perspective they did not do so once she discovered the affair. 

18.I accept that despite the existence of the family agreement that in fact the parties did not live together as man and wife after May 2009  thus I also accept that if the affair continued until late 2008 that this is something that the wife could in theory rely upon. Unfortunately that date is not agreed. Consequently, other than being generally symptomatic of a relationship breaking down, it does not seem to me that the adultery is something that the wife can rely upon, especially given that she did not specifically plead adultery in her petition. 

b) Incidences of domestic violence 

19.The wife said in the witness-box that she was frightened of the husband.  She describes one incident in particular in April 2009 that led initially to her moving out of the matrimonial home.  In general, I accept her version of events on that incident and that this was from her perspective the final straw.  As I have said above, given that the parties did not in fact live together as man and wife after May 2009 and notwithstanding the fact that the wife moved back in May 2011, it seems to me that the wife can rely on this incident in support of her unreasonable behaviour petition. 

20.The wife’s lawyers also ask me to find that the husband had been violent towards the wife from at least December 2008.  My difficulty with that is that even if that had been the case, the parties continued to live together until the following May which is very close to the six month deadline.  In the absence of specific dates, I do not think that this is something that the wife can rely upon.

c) Failure to maintain

21.A great deal was made of this aspect of the case during the hearing although it is only mentioned very briefly in the petition: “The respondent has not provided the petitioner with sufficient maintenance to support and meet ends meet” (which presumably should read “to make ends meet”).  In general, I accept that money was an issue within the marriage although this was resolved in part by the involvement of the wife’s father and a number of agreements reached, including the fact that the husband began to pay the wife $3,000 per month in August 2011 which later rose to $5,000 per month in February 2012.  I accept, however, that the wife only returned to the matrimonial home because of financial necessity in May 2011 and that that was because the husband had stopped paying the rental on her alternative accommodation.  It is difficult, however, to conclude from this that the husband deliberately refused to maintain the wife, especially as it is not clear what his financial position was at the time.  I do not consider that this aspect of the case has been sufficiently proved. 

d)    The husband’s lack of concern for the wife’s general welfare and wellbeing

22.The wife says that there is no communication between the parties save for some discussion relating to the children.  She says that the husband ignores her completely and for prolonged periods of time.  This does not seem to be seriously disputed by the husband.  He says that it is difficult as the wife keeps to herself and stays in her own room.  He tried to suggest that there was normal communication in the presence of third parties and the wider family.  I doubt that to be the case.  In any event, it seems to be that this particular wife, from both an objective and a subjective perspective, found the husband’s actions in this respect to be unreasonable to the extent that she should not be required to live with him.

23.I am therefore of the view that although at the milder end of the spectrum, that the particulars pleaded by the wife in paragraphs b), c), d) and e) of her petition are sufficient to enable a decree to be granted.

Conclusion

24.I will therefore grant a decree nisi of divorce based on the husband’s unreasonable behaviour.  In doing so, I accept that the behaviour complained of falls within the lower end of the spectrum deemed to be unreasonable.  It is, though, quite clear that this marriage has broken down irretrievably and that there is no possibility, certainly as things stand at present, of a reconciliation.  I am also of the view that this matter can and should have been dealt with differently and by consensus if at all possible.  Trials of this nature only serve to make things worse between parties.  This is to be avoided where at all possible, especially where children are concerned.

25.The husband was warned on several occasions of the possible cost consequences if he failed to be reasonable.  I understand and appreciate his concerns but not withstanding that, I intend to make an order nisi to be made absolute in 28 days time that the husband do pay the wife’s costs of and incidental to the suit including any costs reserved on a parte and parte basis with certificate for counsel. 

26.Upon hearing the solicitors for the petitioner and respondent in person, it is ordered that the first appointment hearing and children’s appointment shall be adjourned to 11 December 2013 at 9.30 am.  Both parties do personally attend that hearing and costs be reserved. 

27.Written submissions on costs to be filed within 28 days.

Mrs D Chan, instructed by Ford, Kwan & Co, for the petitioner

The respondent appeared in person