C, SC v. I, MM

FCMC 5633/2024

[2026] HKFC 79

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES NO. 5633 OF 2024

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J U D G M E N T

( Leave to Appeal,
Introduction of new evidence
Paper Disposal)

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1.  This is the Respondent husband (“H”) applications on:

a.  14 July 2025 for Leave to Appeal against my decision on 27 June 2025; and

b.  3 November 2025 for Leave to file supplemental affidavit to adduce new evidence.

2.  Petitioner wife (“W”) was initially legally represented until 21 August 2025 when she began acting in person, H all along has no legal representation.

3.  W opposes his applications on both counts.

Background of the parties

4.  The background is mostly gleaned from the Social Investigation Report dated 26 January 2026.

5.  H is currently aged 48 and W aged 43. W is a Chinese national born and raised in HK, she is a teacher at a local school. H is a Pakistan national, he came to HK in 2006 as an asylum seeker, he now works as a delivery driver. The parties met through social media; and in 2016, H surrendered his asylum seeker status and married the W in Pakistan. There is one child of the family K born on XX June 2020.

6.  H and W were living under the same roof throughout the proceedings until the eve of H’s application to “strike out” W’s Petition, whereupon she went overseas with K on 28 May 2025 and only returned to HK on 20 July 2025. She then left the matrimonial home, and has since been living apart from H.

7.  It is important to note at this point that despite H’s allegations that he had difficulty communicating with me, and then subsequently at the 26 August 2025 hearing asked for an interpreter for Urdu; he has all along spoken clearly in English, never at any point says he did not understand what was being exchanged in Court, and in particular, has filed well written affirmations and submissions quoting statutes and legal precedents. His standard of English is good, and it is my finding that he understands English, he speaks it well and writes even better.

H’s Applications

8.  I will start with setting out the chronology of what has transpired and the H’s various applications.

9.  W petitioned for divorce on 29 May 2024, citing that the parties have lived apart since May 2022.

10.  On 4 June 2024, W’s Petition and related documents were served on H personally by her lawyers and in her presence at the parties’ matrimonial home.

11.  The Notice of Proceedings (Form 3) served on H cites at paragraph 1 that he must complete and file the Acknowledgement of Service to reach the Court within 21 days; and paragraph 3 cites that if H intends to defend the Petition, he must within 42 days after receipt of the notice, inclusive of the day of receipt, file in the court office an Answer to the Petition (“Answer”).

12.  In accordance with this Notice of Proceedings, the deadline for H to file his Acknowledgement of Service was therefore 25 June 2025, and for the filing of the Answer, 16 July 2025. There was no response from H and nothing was filed by the time of the respective deadlines.

13.  W’s solicitors applied for Directions for Trial on 4 July 2024 and received requisitions from the Registry on 20 September 2024 on two issues: (1) to change the place of marriage to “The Govt of Punjab Pakistan” and (2) to give particulars on living apart as the parties were living under the same roof. The W’s solicitors were directed to seek amendment to the Petition.

14.  The W’s solicitors did so accordingly and on 15 October 2024 applied by Inter-partes Summons for amendment of the Petition in response to the requisition of the Registry.

15.  In the amended Petition, the W also added the following particulars:

a.  Due to unhappy difference, the parties have had separate household since about 8 May 2022 notwithstanding that the parties have been residing at the same address at the Matrimonial Home under the same roof.

b.  The parties have had separate arrangements in their daily living and social activities since about 8 May 2022.

c.  Apart from sharing the kitchen and the bedroom of the Matrimonial Home, the parties in fact have nothing to do with each other.

d.  The parties have no sexual life since about 8 May 2022.

16.  On the return date of 22 November 2024 before Master T K Lam, the application for amendment was granted, service on H was dispensed with and he ordered for an affirmation of service to be filed.

17.  On the same day, in compliance with this Order, W’s solicitors filed affirmation of service which records that on 17 October 2024, W’s solicitors served a copy of the 15 October 2024 Inter-partes Summons and a letter informing H of the date of hearing, these were sent by ordinary post to H at the matrimonial home address.

18.  Pausing here, it is of note that the H had by then on two occasions been served the Petition from W. Once on 4 June 2024 in person, and then by post the Amended Petition Summons sent on 15 October 2024.

19.  The Certificate of Registrar was dated 11 March 2025, the Notice of date of pronouncement of decree, being 15 April 2025, was of the same date and sent to the H at the address of the matrimonial home. This Notice also cites clearly that “It is unnecessary for either party to appear at court on the above-mentioned date”.

20.  Decree Nisi was pronounced on 15 April 2025. On the same day, Order was also made granting custody, care and control of K to W.

21.  Up to this point, there was no sign of H at all in these proceedings.

22.  H made his first appearance via his Summons dated 29 May 2025. This is exactly one year after the date of W’s Petition. In his Summons, H asked for the Petition and the amended Petition to be “quashed and strike out”; and also said:

a.  The date of separation pleaded in the said amended petition is wrong

b.  The Petitioner and the Respondent are still living together as husband and wife

c.  File Answer out of time

d.  Rescind Decree Nisi and Certificate of Registrar

Further in his one page supporting affirmation, other than repeating the above points, H also added that he and W were still sleeping together on the same bed, and he could not file the Answer before because he was in hospital for open heart surgery, and that he was willing to make oral submission at the hearing.

23.  I heard H’s Summons on 27 June 2025. H said that they continued to live together, had social activities together, they had physical relation in the past 6 months, his mother died in August 2024 and he had to go to Pakistan for the funeral, and he had open heart surgery in February 2025. To which W’s solicitors said they were still living together because H refused to move out, they were not living as husband and wife, and that there is no medical information in support of his open-heart surgery.

24.  I said to H that his application was more than 10 months overdue, this is a long delay and his affirmation in support lacks supporting information to explain why. There was no response from him after the Petition was served on him on 4 June 2024, nor did he respond to the amended Petition from November 2024. It is apparent that he personally received the Petition well before leaving for Pakistan in August 2024; and he was aware of the W’s Summons (served on him in October 2024) to amend the Petition well before his heart problem in February 2025. I therefore did not accept the H’s explanation of his delay and dismissed H’s application.

25.  It is this decision that H then sought leave to appeal 20 days after, on 14 July 2025. His grounds of appeal will be dealt with below.

26.  It is also worth mentioning that on the same day of his leave to appeal application, H sought to recuse me from hearing his application, I cite here the following excerpt in his supporting affirmation:

“I am respectfully submit that certain communication difficulties in these proceeding may have inadvertently created an incomplete understanding of my case, merits, without intending any disrespect to this Honourable Court, I humbly request, reconsideration by a different judge to ensure all perspectives receive full and fresh consideration.”

27.  This application was summarily dismissed on 26 August 2025 for lack of merits. Also on record is that H has applied and therefore had an Urdu interpreter at this hearing.

28.  On 13 August 2025 Court ordered that there be no further affirmation without leave of Court.

29.  On 10 October 2025, H took out another application seeking leave to file affirmation in support of his application, leave to appeal out of time, permission to file additional evidence, acceptance of Answer filed out of time, review of custody arrangement, and additional time to properly prepare and present case; together with an affirmation with a number of exhibits.

30.  Seeing that there is already an existing appeal application underway, the Court responded on 16 October 2025 informing H that this was not proper procedure, and asked H to consider taking out proper application to apply for leave to file supplemental affirmation with new evidence under Ladd v Marshall in support of his previous leave to appeal application dated 14 July 2025. When H did not take any action, the Court sent out another reminder on 23 October 2025 in the form of an Unless Order: that unless he makes his application pursuant to the previous memo by 4 November 2025, the decision for leave to appeal will be handed down by 5 December 2025.

31.  H filed his Summons on 3 November 2025 (“New Evidence Summons”). On the return day of this Summons on 15 December 2025, I decided to consider what H wishes to put in with regard to his alleged new evidence and to give him a chance to elaborate on his case, directions were given for evidence exchange. Per directions, H filed his supplemental affirmation on 5 January 2026, W’s opposition on 22 January 2026 (“Opposition”) and H’s reply came in on 6 February 2026 (“Reply”).

H’s New Evidence Summons

32.  With this Summons, H applies for:

a.  Leave to file Supplemental Affirmation

b.  That court accepts the newly discovered evidence as satisfying the requirement of Ladd v Marshall

c.  That Court consider the supplemental affirmation and supporting materials in determining the leave to appeal

d.  That Court accepts the Applicant’s Answer filed out of time.

33.  Under this Summons, H has two affirmations in support, one dated 3 November 2025 and another dated 5 Jan 2026. There was no Answer provided.

34.  H’s supporting affirmations repeats his case of travelling to Pakistan for his mother’s funeral (here he cites the date was 20 August 2024 although the ticket record he produced show it was actually 29 August 2024), his heart condition being diagnosed in Pakistan in September 2024, his heart attack and stroke in February 2025, that he was unaware of the Certificate of Registrar issued on 25 Match 2025 (actually dated 11 March 2025) and the Decree Nisi granted on 15 April 2025 because he was hospitalized; and that he first learnt of the decree a few days before 29 May 2025. He claims to be unfamiliar with legal procedures and unable to understand the situation, that the dismissal on 27 June 2025 was on “procedural grounds without a full hearing”; and that he was not given an opportunity to properly present his case or explain the circumstances surrounding his medical hardship and lack of legal support. He says the dismissal was based solely on timing and absence of documents, not on the merits of his situation.

35.  Dealing first with these latter allegations from H. On 27 June 2025, H was given a chance to explain why there was delay to his response to the Petition despite the fact that his supporting affirmation was lacking; he therefore had the opportunity to orally supplement his case. As mentioned above, he cited his lack of legal representation, his attendance to his mother’s funeral in August 2024 and his medical condition in February 2025. He was heard on his explanation, but the timing of these events clearly did not justify his lack of response to the Petition and his failure to file his Acknowledgment of Service or prepare an Answer to defend the Petition in accordance with the timeline instructed in the Notice of Proceedings. H could have stated his intention to defend and challenge the 2 - year separation as early as June or July 2024 and failed to do so; when details of separation were provided in the Inter-partes Summons for amendment of Petition and well served shortly after his return from Pakistan, he could also have applied to file his Answer out of time after November 2024; a trip to the Family Court (which he knew to undertake when he issued his Summons in May 2025) would have sufficed to take these steps. After considering this inordinate delay and his explanations, as the Court is entitled to do, his application was summarily dismissed.

36.  Furthermore, the Registrar Certificate and the Notice of date of pronouncement of decree do not require his participation, indeed the Notice clearly states this (above paragraph 19 refers). The fact that he was hospitalized at the material time does not advance his case for delay any further.

37.  Returning to his justification for his delay, he also says that he believed that matters were being resolved at home in November 2024, and that the delay was caused by W’s mixed signals and misleading conduct. I will deal with this point when exploring the evidence below.

38.  The law which allows the introduction of new evidence into appellate proceedings is trite, Ladd v Marshall [1954] EWCA Civ 1 remains good authority and propounds the three-part test for admitting fresh evidence on appeal in English civil procedure. The test requires: (1) the evidence could not have been obtained with reasonable diligence for use at trial; (2) the evidence would probably have an important influence on the result; and (3) the evidence must be apparently credible. These principles will be applied to the evidence H seeks to adduce below.

39.  Except for Exhibit F, He says the following evidence were available before the original proceeding but were not presented due his “medical incapacity and lack of legal support”.

a.  Exhibit A – Whatsapp messages from November 2024, in which the Petitioner asked him to increase household contributions and spend more time with family, he said this was not denied by W.

This exhibit shows messages from H saying that he would pay W $10,000 per month from November 15 and also two payment records from November and December 2024. In the message, he also said “If I never keep my promise, then you can do whatever you want, I will agree with your decision about our relationship.” My observation on this are as follows: (1) these are Whatsapp messages from his own phone so there is no reason that he did not produce this at his hearing. (2) Even if he had produced this, and H says he relies on these November 2024 exchange to support his belief that the divorce was not proceeding, I do not see how this could excuse his lack of response back in June and July 2024. (3) W in her Opposition produced Whatsapp exchanges with H which informed him that she has “resumed proceedings”, this was in February 2025, and the H has responded “I understand”. H argues that this does not constitute service. This argument is misconceived, W has never withdrawn her Petition, it is ongoing, and the issue of service does not come into play.

b.  Exhibit B – Medical records from Pakistan and Hong Kong. Those from Pakistan were dated September 2024, and there are Hong Kong Hospital Authority records of appointment slips, discharge letters, and treatment record.

Admittedly as a layman, and looking at the only legible medical report from Pakistan that I can read, I am not of the view that it supports his case that he was diagnosed with a “severe heart condition abroad”, as the report dated 21 September 2024 states in the Conclusion: “Normal biventicular size and good systolic function”.

The HK records show that H did have a medical incident in around 16 February 2025, he was admitted to hospital on 25-27 March 2025 for tests, then admitted again between 30 March to 13 April 2025 (despite H saying that he was in hospital only between 7 to 13 April) for a bypass procedure on 7 April, then he was on follow up appointments after the surgery as evidenced by his appointment slips. There was one referral letter which states that at a consultation on 29 September 2025, H complained of “low mood and request to see a psychologist”, this was a long time after the time frame I am now looking at and there is no further evidence on this front.

I am not of the view that this information adds to H’s case to justify his delay. W does not dispute that he was hospitalized, but his medical incapacity only happened in mid-February 2025, it does not relieve him of his lack of action when he received the Petition in June 2024.

c.  Exhibits C are H’s record of return tickets to Pakistan for his mother’s funeral.

This was a trip from 29 August to 11 October 2024, while I do not see why this could not have been produced earlier, his trip was not disputed by W. Again, I do not take the view that this could have affected my decision in June 2025. His failure to act prior to and after these dates goes to his unacceptable delay in responding to the Petition.

d.  Exhibits D are Whatsapp message from 23-24 April 2025 and 5-6 May 2025 on which H relies to say no court notices were received.

Taking into account that he was in hospital on 25 - 27 March 2025, and then 30 March 2025 onwards and he did not return home immediately after his discharge on 13 April 2025, the only documents that could have been sent from Court during this time were the Registrar Certificate, Notice of date of pronouncement of Decree, and the Order for Decree Nisi. As mentioned above, these were notices, and H’s participation is not required. Up to this point of time, he had already received the Petition for more than 9 months, I fail to see how his complaint of not receiving these notices advances his case in any way.

e.  Exhibit E contains the Petition and the Amended Petition and copy marriage certificate. H says “The amended petition corrects the name of issuing authority and reveals key contradictions. Notably, it confirms that we shared the kitchen and bedroom, which directly contradicts her earlier assertion that we were living separate lives in the Petitioner’s claims.”

These documents are not new evidence and should not come under this application.

f.  Exhibit F shows Family photos which H says was shared by Petitioner and her brother showing normal family life during the alleged separation.

In H’s affirmation of 3 November 2025, he mentioned that these items were not stored on his device or in his personal records. He said he was unaware they existed until he checked the chat history, and when he asked W, she removed him from the chat group. This position was not restated in his subsequent Affirmation of 5 January 2026.

H did not explain further how he eventually got access to these photos for this application. W says they were at all times on his device. These photos show family gathering, and some for birthday or similar celebration with family members, from 2021, 2022, 2023 and up to June 2024; for some I am unable to tell in what year they were taken. Even if I accept that these could not be obtained earlier, it is not uncommon for separated / divorced parents to take pictures with family, in particular all of these are with children. While H says that he relies on the photos to prove no separation, the last of these photos produced were from June 2024 and were pictures taken at K’s birthday celebration, this was very shortly after W’s Petition. No photo since that date was produced, so H could not be in a position to argue that W gave him mixed signals that the divorce is not proceeding, and certainly not at the time when the Petition was served on him. These photos do not assist the H’s case in justifying his delay and most certainly would not have affected my decision in June 2025.

g.  Exhibit G consists of Whatsapp messages showing H’s communication with the social worker on supervised visitation.

These appear to be dated August and September 2025 and have nothing to do with the leave to appeal application.

h.  Exhibit H which H says are financial hardship documentation showing inability to afford legal representation

This Exhibit shows H’s sole name account with HSBC and contain the first page only of statements from August 2024 to December 2025.

Lack of legal representation is generally not accepted as a basis of non-compliance of procedural rules by litigants in person. H has ably written affirmations and submissions quoting SMSE v KL [2009] HKLRD 125, Section 63A, and the three requirements under Ladd v Marshall. Further, it is not accepted that reading and understanding the Notice of Proceedings with timeline, filling out an Acknowledgement of Service, and putting in his objection to the separation details require legal representation at that point in time.

40.  H says in his Reply that in allowing him to file affirmation by my Order of 15 December 2025 to his New Evidence Summons, W should not be objecting to him adducing his new evidence as the objection was “determined when Court granted me leave”. He is mistaken, his application to adduce evidence was not determined on that day, and is subject to the subsequent exchange of evidence and my determination in this decision.

41.  I remind myself that the evidence to be admitted should pertain to the reasons for his delay in acknowledging service and filing an Answer to the Petition. I do not accept that the above evidence could not have been obtained without reasonable diligence on H’s part for his hearing (E.g. Whatsapp messages, air ticket records, hospital records), some of the other evidence he sought to produce under this application is misconceived (Petition and Amended Petition) or irrelevant (Whatsapp messages with the SWO). But even if he could satisfy this Court that he was not able to obtain this evidence beforehand and even if they were credible, none of the evidence would have influenced or affected my decision on 27 Jun 2025.

42.  H’s New Evidence Summons is therefore dismissed.

Legal principles on Leave to Appeal

43.  Section 63A(2) of the District Court Ordinance reads as follows:

Leave to appeal shall not be granted unless the judge, the master or the Court of Appeal hearing the application is satisfied that –

a)  the appeal has a reasonable prospect of success; or

b)  there is some other reason in the interests of justice why the appeal should be heard.

44.  The relevant test of whether an appeal has a reasonable prospect of success is whether the applicant for leave can show that he has an arguable case with reasonable chances of success on appeal. A reasonable prospect of success therefore means an appeal with prospects that are more than “fanciful” but which do not need to be shown to be “probable”: SMSE v KL [2009] 4 HKLRD 125; KNM v HTF HCMP 288/2011. Even if this threshold requirement is met, the Court still has a discretion to refuse leave (Hong Kong Civil Procedure 2025, 59/2A/4).

Grounds of Appeal

45.  H’s application for leave to appeal on 14 July 2025 consists of his Summons, Skeleton Submission and draft Grounds of appeal. W has produced her skeleton submission dated 26 August 2024 after being granted extension on 13 August 2025 to file the same.

46.  This is an appeal against my decision that H has failed to justify his more than 10 months delay in responding to W’s Petition and Amended Petition. This is not a determination on whether the W’s grounds of divorce, or more particularly, the details as to their separation is credible. It is only after H has satisfied the Court as to his grounds of appeal herein and the Court finds in his favour, that he could then turn to challenging the details of the separation in a properly drafted Answer. Failure on the first limb will put an end to the question in issue.

47.  With this application, H has attached extra documentation which he had no permission to adduce. W in her Submissions rightly says that this evidence should be rejected unless they satisfy the principles under Ladd v Marshall. In brief, these are :

a.  Medical records from a hospital in Pakistan.

b.  From HK Hospital Authority, inter alia, appointment slips, treatment slips, medical certificates and discharge slips, a referral letter on 25 January 2025 showing his attendance at A&E department for chest pain.

These were in fact the subject matter of H’s New Evidence Summons; but at the point of time of his July 2025 Summons, H had no leave to adduce them.

48.  H’s written statement / skeleton submission contains the following points:

a.  Separate households: we cohabited continuously, sharing household duties despite occasional disagreements. Temporary strains do not equate to separation.

b.  Shared Activities: we actively collaborated on childcare, home management, and essential tasks, reduced social outings do not imply marital breakdown.

c.  Interaction at Home: we maintained respectful and cooperative engagement within the matrimonial home, fulfilling spousal obligations.

d.  Physical intimacy: Fluctuations in intimacy are natural in long term marriages and do not justify irretrievable breakdown claims.

Then in his “Prayer”, he says : I urge the honourable court to dismiss these allegations as insufficient grounds for dissolution, as they reflect common marital challenges rather than irreconcilable difference.

It is my observation here that H possibly conceded that the parties have disagreement, reduced social outings, and did not deny that there is no intimate relationship between the parties. This is not a skeleton submission for his leave to appeal against my June 2025 decision. These points are more appropriately to be dealt with in an Answer to W’s details in her two-year separation ground for divorce, and is premature for the purpose of this application.

49.  H has 5 draft Grounds of Appeal, quoting verbatim hereunder:

Ground (A)  Lack of Representation and Notice: I had no legal counsel at the time and was unaware of certain procedural deadline, resulting in a one-sided presentation of the circumstances

50.  The Notice of Proceedings served on H on 4 June 2024 cites very clearly the deadlines before which he had to respond, and he has failed to do so. I have found that H is proficient in English; reading those instructions do not require legal advice.

51.  Quoting from the Court of Appeal case of Lee Carol v Tong Hung Wai Tommy [2020] HKCA325 at §10: “This Court has repeatedly said that ignorance of the law on the part of a litigant acting in person is generally not an excuse for delay”.

52.  Not having legal representation is not a ground of appeal which will have any prospect of success in the appellate court.

Ground (B)  At the time, I was going through mental breakdown and depression due to loss of my mother and my medical conditions since the beginning of 07/09/2024.

53.  H has never informed the Court nor provide supporting information as to when his M passed away, the only evidence before the Court was that he left for Pakistan on 29 August 2024 and returned on HK on 11 October 2024.

54.  H has failed to put forward any support for depression, more particularly for the relevant time he claims. The only time this issue appeared was in September 2025 (see paragraph 39b above), which was 15 months after he was personally served with the Petition.

55.  Under this ground, even if I accept that he left HK in late August 2024 and thereafter diagnosed with a condition in September 2024 (which was not supported by the Report from the hospital in Pakistan), this does not explain his lack of response to the Petition he received in person on 4 June 2024, ignored the deadline on 16 July 2024; and then took no further action when being informed of the amendment to the Petition. I am not of the view that the H has any prospect of success on this ground on appeal.

Ground (C)  Change in Circumstances: Since after covid due to restrictions on trade & high shipping costs I had been suffering to survive and to close all my operation which led to my capacity to act responsibly as parent and manage financial affairs.

56.  There is no elaboration on H’s part as to how this explains his failure to respond to the Petition he received on 4 June 2024.

57.  I fail to see how H can succeed on this ground of appeal.

Ground (D)  Change in Circumstances: Significant developments since the original separation order, my health recovery, stable finances, improved parenting capacity can justify variation or reconsiderations.

58.  It is not clear what H meant by “original separation order”, the closest, I can surmise, is that he is referring to the Decree Nisi which was pronounced on 15 April 2025.

59.  There is no explanation nor elaboration of any of the factors that he raised.

60.  I also fail to understand how introducing these “change of circumstances” arguments could justify his delay in responding to the Petition in June and July 2024, or after the amended Petition in November 2024 and prior to his medical condition in February 2025. I am therefore unable to see any prospect of success based on this ground of appeal.

Ground (E)  Appeal for both parties to go counselling which may led to an positive outcome for the betterment of both parties and the child’s future.

61.  W says this request completely lacks legitimate significance and fails to establish a valid ground for appeal.

62.  I concur. This ground has nothing to do with justifying H’s delay in response to the Petition and amended Petition.

63.  I am of the view that H was unwilling to acknowledge that W is ending the marriage, what he failed to do appeared to have arisen out of avoidance, and he has dragged his feet for several months. To quote from his Reply “My bereavement, medical incapacity and lack of notices explain my delay”; from my analysis above, none of those grounds support his case.

64.  Further to the above, I have given consideration to the fact that it has been almost two years since W’s Petition, I am of the view giving H a chance to defend the suit and then taking this through a full trial now would cause serious injustice to W.

65.  I am not of the view that the H has identified in his draft Grounds of appeal any grounds with real prospect of success on appeal; nor any other reason in the interests of justice why leave should be granted. H’s application for leave to appeal against my decision on 27 June 2025 dismissing his application for striking out W’s Petition, filing answer out of time and recission of the decree nisi is therefore dismissed.

H’s case on defending the Petition

66.  To put in a brief word here on H’s case. H says there is no separation between the parties. It is norm in Hong Kong for parties to live in very small dwellings under the same roof; and under the legal principles on this ground of divorce, there could still be separation which is sufficient to support a contention for the purpose of divorce proceedings. The mere sharing of the kitchen, and even of the same bed, and the existence of some social activities in particular those which involve children do not disprove a case of separation. W has contested that there had been no marital relationship, H has never overtly claim that there had been sexual relationship between the parties. In his above-mentioned skeleton, I repeat here what he said:

“Physical intimacy: Fluctuations in intimacy are natural in long term marriages and do not justify irretrievable breakdown claims.”

W repeats again in her Opposition that there has been no consortium and no romantic intimacy, H’s Reply did not address this.

67.  Where a court has to consider the issue of a defended suit, it will not be looking at an individual factor or incident, but instead needs to consider holistically whether the relationship between the parties have broken down irretrievably.

68.  What is said here is not a finding of fact on this particular case. I am dismissing H’s leave to appeal, the divorce will proceed on an undefended basis.

Costs

69.  There is no reason why Costs should not follow the event.

Orders

70.  To summarize:

a.  H’s Leave to Appeal application is dismissed.

b.  H’s New Evidence Summons is dismissed.

c.  Costs of both applications be to the W, to be taxed if not agreed. This to be a Costs Order nisi to be made absolute 14 days hereof.