Afta v. Jma also known as Jcm

FCMC 1087/2014

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES NO 1087 OF 2014

________________________

________________________

________________________

JUDGMENT
(Defended Petition)
________________________

Introduction

1.This is a defended divorce. The husband seeks a decree based on two years’ separation.  The wife, for her part, defends because of her religious convictions.  She has not cross-petitioned, although it is common ground that the husband has formed a new relationship, and that he has a further child, a little boy, who was born on 5 February 2010.

Background

2.The parties married in March 1990, and had two daughters who are now aged 23 and 22 years old respectively.  The husband, who is now 47, is a musician, and the wife, who is 58, works as an airport assistant.  They are both from the Philippines originally.

3.The husband filed for divorce on 27 January 2014 on the basis of two years’ separation.  He claimed in the petition that the parties had been separated since October 2010. The wife for her part filed an Answer on 5 February 2014.  As I have said, she did not cross-petition.  However, she says that she does not wish to divorce because, and I quote from the Answer: 

“I do not wish to have a divorce due to the following reasons. I am a responsible and a faithful mother and wife to my family. I am the main provider of the family since our marriage and until present. I have not engaged in any illegal relationships, nor had any children during our marriage. The petitioner has made false claim of having no other children outside the family during our marriage, and it is not true that we are separated for two years.”

It is the last point that is relevant for present purposes.

Issue

4.There is only one issue to determine, namely, have the parties lived apart for a continuous period of at least two years immediately preceding the presentation of the petition, and on that basis, can the parties’ marriage be said to have broken down irretrievably?

The Law

5.There is only one ground for divorce in Hong Kong, i.e. that the marriage has broken down irretrievably.  This can be 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 years’ separation.  In this instance, the husband relies upon the ground of two years’ separation. 

6.I do not have to consider the fact of the husband’s adultery, which is not in dispute, as the wife has not cross-petitioned, she simply defends.

The law

7.At the centre of this dispute lies the following sub-issue, that is, what constitutes separation in this context?  In order to assist with this, I am going to refer to a paragraph in Rayden, which is a text on family law matters, and I am going to read out those sections which I highlighted in yellow:

“A husband and wife must be treated as living apart unless they are living with each other in the same household. ‘Living apart’ does not exist so long as both parties bona fide recognize the marriage relationship as continuing, even though the husband and wife are separated.

Sexual intercourse, dwelling under the same roof, society and protection, recognition in public and in private, correspondence during separation may be regarded separately as different elements, the presence or absence of which go to show more or less conclusively that the marriage relationship does or does not exist. The weight of each of these elements varying with the health, position in life and all of the circumstances of the parties.

Where the parties are separated but not living apart, it is open to one of the parties to decide henceforth to live apart, and such decision need not be communicated by word or conduct to the other party: and uncommunicated ending of recognition that a marriage is existing can mark the moment when living apart commences.”

Have the parties been separated for two years? 

8.In this instance, I accept that the husband formed the intention to separate with the wife in July 2009, and that sexual relations ceased from that time onwards.  I also accept that he physically moved out of the matrimonial home in August 2012, which was when he started renting his own room away from the family.  Prior to that, I accept he was sleeping on the couch.  Thus, as I have said, the husband formed the intention to separate in July 2009.  The wife does not need to have agreed to that.  I also accept that it was known in the parties’ social circle that they were having marital difficulties because the husband was expelled from the church that both he and the wife had attended previously.  I accept that he was expelled because he had been having an extramarital affair.  I accept that the marriage relationship effectively came to an end in or about July 2009. 

9.The wife, for her part, has produced evidence to show that the husband still uses the matrimonial home as his correspondence address.  Although that is clearly the case, I do not accept that on its own, that is evidence that the marital relationship is still subsisting. 

10.It is also accepted that the husband comes back to the matrimonial home on a regular basis.  He says that he does so in order to see his daughters.  Again, this is not evidence that the marriage is still in existence.  However, as an aside, I would agree that it is not appropriate for the husband to continue to return home, as he has been doing, going forward.  I would suggest that he takes note of what I have said in that respect.

Conclusion

11.I will therefore grant a decree nisi of divorce based on two years’ separation. It is quite clear that this marriage has broken down irretrievably, and that there is no possibility of reconciliation.

Costs

12.Given that both parties are acting person, and that each has a valid position, I shall make an order that there shall be no order as to costs. 

The petitioner appeared in person

The respondent appeared in person