WKL v. GF

FCMC 12808/2017

[2022] HKFC 220

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES

NO. 12808 OF 2017

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JUDGMENT

( Petition based on 2 years’ separation )

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Background

1.  This is the trial of the Husband’s re-amended petition for divorce based on 2 years’ separation (since June 2014).

2.  The parties married in Hong Kong on 12 February 2001.  The child of the family (“Daughter”) was born in Hong Kong on 27 October 2005.

3.  Originally, the Husband issued the petition on 29 September 2017 on the ground of 2-year separation and the unreasonable behaviour of the Wife.

4.  On 6 December 2017, the Wife filed her “Form 4 – Acknowledgement of Service”, which was prepared and signed by her former solicitors Messrs Ho & Ip (“Ho & Ip”):

a.  To Question 4 (“Do you intend to defend the case?”), the answer “No” was given.

b.  To Question 6 (“[In the case of a petitioner asking for divorce and alleging ... 2 years’ separation)]: Do you intend to oppose the grant of a decree on the ground that the divorce will result in grave financial or other hardship to you and that in all the circumstances it would be wrong to dissolve the marriage?”), the answer “No” was given.

5.  At the First Appointment Hearing before Deputy Judge AN Tse Ching (as she then was) on 11 December 2017, Mr Dennis Ho of Ho & Ip appeared for the Wife whereas the Husband appearing in person indicated that he would not rely on the particulars of unreasonable behavior if the Wife did not contest 2-year separation.  Mr Dennis Ho then expressly stated that separation was not in dispute.  According to the transcript of that hearing^[1], the relevant conversation was as follows:

“官：係唔係冇爭議個separation...

MR HO: 冇爭議㗎喇，個separation。”

6.  It was on the above basis that the learned judge made an order, by consent, to amend the Husband’s petition by deleting all references to the Wife’s unreasonable behavior therefrom^[2]. The Husband filed the amended petition on 29 September 2017 accordingly.

7.  On 21 January 2019, the Wife filed a Notice to Act in Person to replace Ho & Ip. 

8.  On 29 July 2019, she filed a new Form 4 indicating that she would defend the case and that “分居不符合事實”^[3]. She then filed an Answer in Chinese dated 12 September 2019 which did not contain any rebuttal of the Husband’s case on 2-year separation^[4].

9.  The Husband made an application for directions for trial on 31 October 2019.  On 9 September 2021, I ordered that the trial of the defended petition be fixed for 13 January 2022 with 1 day reserved.  By consent, the parties agreed for the trial to be adjourned and re-fixed for 4 May 2022 with 1 day reserved.

10.  The Husband has filed his witness statement in support of the petition on 8 November 2021 pursuant to the Order dated 9 September 2021^[5]. However, the Wife has not filed any witness statement.  Without leave of the court, she filed with the Court the following which may be relevant to her case:

a.  Two affirmations dated 29 October 2019;

b.  Two affirmations of 黃麗華 (i.e. the Wife’s mother) dated 23 February 2021;

c.  An “affirmation in support of the documents submitted” regarding the issue of the lack of 2 years of separation” dated 22 September 2021; and

d.  An “affirmation regarding the dismissal of the divorce petition” dated 21 October 2021.

Discussion

11.  In my view, the Wife’s Answer dated 12 September 2019, which is the pleading of these divorce proceedings, simply contain no rebuttal or denial of the Husband’s case on 2-year separation.

12.  The Wife explained that she through her Mainland lawyer Mr. Jiang Zemin (姜澤民) filed an Answer in Chinese dated 12 September 2019, which was also signed by her.  However, she accepted that the issue of separation was never raised in this document at all.  When cross-examined by Ms Lee for the Husband on why this was the case, the Wife claimed that it was because her Mainland lawyer did not know 2-year separation was a ground for divorce in Hong Kong. 

13.  In my view, the Wife’s explanation is entirely unacceptable and inherently highly improbable.  The Wife had instructed an experience law firm in Hong Kong, Ho & Ip, of which Mr Dennis Ho appeared for the Wife at the hearing on 11 December 2017.  Although the Wife has complained against Mr Dennis Ho about his professional misconducts, I am of the view that she must have received proper legal advice on the issue of separation under the Hong Kong law.

14.  Regarding the various affirmations filed by the Wife, according to the Order dated 9 September 2021, parties are ordered to file and exchange their respective witness statements.  The Wife had not done so.  Further, such witness statements are ordered to stand as evidence in chief of the relevant party and no examination be given without leave of the court.  There is no leave of the Court to permit the use of the above affirmations as evidence at the trial of the main suit.  It is also noteworthy that some of these affirmations were made in the Mainland and may not be properly affirmed according to the Hong Kong laws and practice. 

15.  In the circumstances, I consider that the Wife should not be allowed to rely on the affirmations subsequently filed as evidence to rebut or deny the Husband’s case as pleaded in his re-amended petition. 

16.  Indeed, when the Wife sworn in the witness box at the trial, she refused to adopt the affirmations previously filed by her and stand as her evidence in chief as she claimed that she did not know whether they were relevant to the issue of 2-year separation. Instead, the Wife sought to rely solely on her written Opening Submission. In my view, such Opening cannot stand in place of a witness statement which has to be endorsed with a statement of truth as required under Order 38 rule 2A of the Rules of the High Court (Cap 4A), nor automatically form part of the Wife’s evidence^[6].

17.  At §5 of the Wife’s Closing Submissions, she further set out an “Evidence List” describing a number of documents which were appended to the end of her Closing Submissions.  According to the Order dated 9 September 2021, parties are ordered to file and serve their respective lists of documents.  The Wife had not done so.  All of these documents are fresh evidence which were not disclosed before or during the course of trial.  I am of the view that there are no exceptional circumstances to justify adducing new evidence at a late stage, nor has the Wife explained why she did not seek to put such evidence forward at an earlier stage. Obviously, the Ladd v Marshall conditions are not satisfied.  I will not take into account of these new evidence.

18.  In the circumstances, the court is entitled to accept the Husband’s case as pleaded which is supported by his witness statement as well as his oral evidence given at the trial.  According to his oral evidence, he gave further examples of living separate lives with the Wife since at least 2014, including taking the Daughter on holidays separately, eating meals separately, and lack of physical intimacy between the parties etc. 

19.  In any event, to be fair to the Wife, I will deal with the issues raised by her in her Opening, various affirmations and Closing Submissions below.

Lack of jurisdiction of the Hong Kong Court

20.  The Wife all along contended that Hong Kong Court has no jurisdiction over the divorce.  At the hearing on 28 February 2019, the Husband addressed Deputy Judge AN Tse Ching on the issue of jurisdiction.  After considering his submissions, the learned judge then delivered an oral judgment that the Hong Kong courts do have jurisdiction over the divorce.  According to the transcript of that hearing, the learned judge held:

“In the present case, having considered all the facts, the court finds that the petitioner has shifted his domicile to Hong Kong when he came to work here 16 years ago and he did not abandon his domicile here when he moved to Hangzhou. Therefore, the court has jurisdiction, and in those circumstances, there is no need to go on to consider substantial connection.”^[7] (emphasis added)

21.  For this reason, it was further ordered by the learned judge that the case be restored to the special procedure list^[8].

22.  The Wife has not lodged any appeal against this judgment.  By the principle of res judicata, she is not allowed to re-litigate this point.

23.  In any event, the Wife has subsequently filed her Answer on 12 September 2019 which, in my view, must be construed as a submission to jurisdiction of Hong Kong: see SJH v RJH [2012] 4 HKLRD 308 (Court of Appeal) at §9(13). The Wife’s contention that Hong Kong Court has no jurisdiction over the divorce has no merit.

Misrepresentation or concealment of the nature of the case under section 15(3) of the Matrimonial Causes Ordinance cap.179(“MCO”)

24.  The Wife’s reliance on this ground is at her “affirmation regarding the dismissal of the divorce petition”.  Such affirmation was made before the Notary Public Office in the Mainland, which may not be properly affirmed according to the Hong Kong laws. She also repeats this ground in her Opening. 

25.  Section 15(3) of the MCO provides:-

“(3) If it appears to the court, at the hearing of a petition for divorce presented in pursuance of leave granted under section 12(2), that the leave was obtained by the petitioner by any misrepresentation or concealment of the nature of the case, the court may—

(a) dismiss the petition, without prejudice to any petition which may be brought after the expiration of the period of 1 year from the date of the marriage upon the same facts, or substantially the same facts, as those proved in support of the dismissed petition; or

(b) if it grants a decree, direct that no application to make the decree absolute shall be made during that period.” (emphasis added)

26.  The dismissal of a petition under this section is therefore premised on the basis that the Husband obtained leave to issue the petition under section 12(2) of the MCO.  This section imposes restrictions on petitions presented within one year of marriage unless leave is obtained from the Court.

27.  In this case, no such leave was needed by the Husband since the divorce petition was presented after some 16 years of marriage.  Section 15(3) of the MCO is therefore not applicable and not relevant to the determination of the main suit at all.

Grave financial or other hardship to the Wife under section 15B MCO

28.  The Wife sets out the following 3 main grounds at her “affirmation regarding the dismissal of the divorce petition” and Opening Submissions:

a.  The United States (“US”) government will not recognize the divorce decree;

b.  The divorce case and “bigamy” case shall not proceed at the same time;

c.  The dissolution of the marriage will result in grave financial or other hardship to her.

Recognition of the divorce in the US

29.  Regarding sub-ground (a), the Wife produced a print-out from a government website of the United States^[9].  The relevant part in the English version is as follows:  

“Will My Foreign Divorce Be Recognized in the United States?

... a divorce decree issued in a foreign country generally is recognized in a state in the United States on the basis of comity (Hilton v. Guyot, 159 U.S. 113, 163-64 (1895), where both parties had notice of the divorce proceeding and an opportunity to be heard within these proceedings. ... States also may consider the jurisdictional basis upon which the foreign decree is founded and may not recognize the foreign divorce if the court is not satisfied that at least one party was domiciled in the country at the time of the divorce. Many state courts which have addressed the question of a foreign divorce where both parties participate in foreign divorce proceedings but neither is domiciled in the foreign county have followed the view that such a divorce is invalid.” (emphasis added)

30.  Since Deputy Judge AN Tse Ching had ruled that the Husband was domiciled in Hong Kong, on the face of this website it appears that the divorce decree will be recognized in the US.  There is no evidence from the Wife to the contrary, and it is well established that in the absence of evidence of foreign law, the court will presume that it is the same as Hong Kong law: see §32 of Fung Wing Sai v Chow Chiu Wan & Ors (unrep) CACV 245 of 2015, 17 March 2017.

31.  In any event, even if the Wife is able to prove that the decree nisi granted by the Hong Kong Court is not recognized in the US, I cannot think of any relevancy to my decision of the granting the same or to any hardship to the Wife.

Bigamy case in the Mainland

32.  The Wife has instigated criminal investigations against the Husband and his new partner in the Mainland under the crime of “bigamy” (重婚罪).  The Wife has cited a Mainland statute to say that the Mainland courts will not adjudicate on the divorce before the criminal case is resolved.  The Wife therefore advocates that the Hong Kong Courts should do the same.

33.  In my view, as the divorce suit is being proceeded with in Hong Kong, the Mainland law is not applicable in these Hong Kong divorce proceedings and the question whether the Husband and his new partner in the Mainland are charged or convicted with the crime of “bigamy” in the Mainland is simply irrelevant to the proceedings here.

Grave financial or other hardship to the Wife

34.  The Wife said that the Husband has not paid maintenance for the Daughter for 4 years.  She also argued that a decree nisi should not be granted to the Husband in Hong Kong because she could launch ancillary proceedings against him more cheaply in the Mainland.  However, I understood that the Wife commenced an action against the Husband in the Court of First Instance under HCA1755 of 2017 for recovery of $27 million in July 2017 and recently instructed lawyers to apply for summary judgment against the Husband.  The outcome is still pending.

35.  Further in §21 to §27 of the Wife’s Closing Submissions, she added one new ground under this heading – her alleged difficulty in continuing the matrimonial proceedings in Hong Kong.  She claims to be unable to obtain any ancillary relief from the Husband because she lacks funds to continue the proceedings, and she cannot afford to keep coming to Hong Kong to do so.

36.  She relied on section 15B of the MCO which provides:

“(1) The respondent to a petition for divorce in which the petitioner alleges any such fact as is mentioned in section 11A(2)(d) may oppose the grant of decree nisi on the ground that the dissolution of the marriage will result in grave financial or other hardship to him and that it would in all the circumstances be wrong to dissolve the marriage.

(2) Where the grant of a decree nisi is opposed by virtue of this section, then—

(a)if the court is satisfied that the only fact on which the petitioner is entitled to rely in support of his petition is that mentioned in section 11A(2)(d); and

(b)if apart from this section it would grant a decree nisi,

the court shall consider all the circumstances, including the conduct of the parties to the marriage and the interest of those parties and of any children or other persons concerned, and if the court is of opinion that the dissolution of the marriage will result in grave financial or other hardship to the respondent and that it would in all circumstances be wrong to dissolve the marriage it shall dismiss the petition.

(3) For the purposes of this section hardship shall include the loss of the chance of acquiring any benefit which the respondent might acquire if the marriage were not dissolved.”

37.  It can be seen from sub-section (3) that hardship expressly includes the loss of the chance of acquiring any benefit which the respondent might acquire if the marriage were not dissolved. That is why the usual case for relying on this section is “where a respondent spouse opposes to the grant of a decree on the ground that he would lose any pension benefit if he ceases to be a spouse of the petitioner.”:  GY v YJ [2020] HKFC 71 at §5.

38.  As further observed by Ormrod LJ in Grenfell v Grenfell [1978] Fam. 128 at 139F:

“It is quite clear that the purpose of section 5 is to permit a party to a marriage to object to a decree being granted on the ground of five years' separation where dissolution of the marriage would result in grave financial or other hardship to that party. The only thing to be looked at is the dissolution of the marriage. The question is simply and solely: Will the dissolution of this marriage cause grave financial or other hardship? It has got nothing to do, in my judgment, with which of the parties initiates the proceedings, nor with the ground for the proceedings.” (emphasis added)

39.  To start with, the Wife had tried to cross-petition for the marriage to be dissolved based on the Husband’s adultery.  Such an application for cross-petition had been dismissed by me at the hearing on 25 April 2022.  In my view, if she also asked for dissolution of marriage based on the Husband’s adultery, it is illogical for her to claim grave financial or other hardship to her simply because the marriage was dissolved based on 2-year separation alleged by the Husband.

40.  Secondly, the issue of child maintenance and ancillary relief is separate from that of the main suit.  Even if the divorce decree is pronounced, the Wife may make her claims against the Husband separately including the interim maintenance for the Daughter and the decree absolute will not be granted unless the court is satisfied with the welfare of the Daughter under section 18 MPPO, Cap 192.

41.  Lastly, with the assistance of the Hangzhou Xihu District People’s Court on 27 July 2021, the parties have already reached a mediation settlement in respect of financial support for the Daughter.^[10]

42.  After having considered all the circumstances, including the conduct of the parties to the marriage and the interest of them and of the Daughter, I am of opinion that the dissolution of the marriage will not result in grave financial or other hardship to the Wife.  I therefore consider no merit in this ground as a defence to the pronouncement of the decree nisi.

Lack of 2 years’ separation before the presentation of the Petition

43.  This is the only real issue for determination in the main suit.

44.  It is well-established that “living apart” for the purpose of proving a separation-based petition does not necessitate the parties living under separate roofs.  As stated in Family Law and Practice in Hong Kong (3^rd edition):

“1.071 Although the act requires the parties to have lived apart for a continuous period of one year, this does not necessitate the parties moving from living under the same roof but they must cease living together in a marital sense.  Thus, parties can agree to divorce under this section if they are living at the same address but have not shared a bed or had sexual relations, shared meal times or spent any quality time together.  Parties, for the purposes of this section, can live together albeit living their own lives.  “Living apart” does not suggest fault by either party...

1.078   Similar arguments arise concerning the meaning of “separation” as with the fact of one year’s separation by consent.  The arguments tend to be factual and are generally determined on what is meant by the term “separation”.  In essence, there must be a separation of what is colloquially termed “bed” and “board” and at least one of the parties must have formed the intention to separate. It is possible for the parties to remain living under the same roof, with each residing in a separate bedroom and maintaining separate households...” (emphasis added)

45.  A defended suit on separation is fact-sensitive and the parties’ credibility is an important factor in the Court’s consideration of the evidence.  In this regard, the judgment of Deputy High Court Judge Au (as he then was) in Lee Fu Wing v Yan Po Ting Paul [2009] 5 HKLRD 513 may be helpful:

“53. In assessing the credibility of a party's case on a particular issue, I accept the submissions of Ms Lisa Wong (leading counsel for the plaintiffs) that the Court should take into consideration the following:

(a) Whether the party's case is inherently plausible or implausible;

(b) Whether the party's case is, in a material way, contradicted by other evidence (documentary or otherwise) which is undisputed or indisputable;

(c) Where it is shown that a witness has been discredited over one or more matters to which he has given evidence using the above tests. This is relevant to the assessment of his overall credibility; and

(d)  The demeanour of the witnesses.”

46.  In the original, amended and re-amended petition, it is pleaded by the Husband that the parties have lived apart for a continuous period of at least 2 years immediately preceding the presentation of the petition, namely from and since June 2014. The Husband had previously moved out twice from the family home, but decided to move back to the family abode in June 2014 for the sake of looking after the Daughter.  He stayed in the Daughter’s room while the Daughter slept with the Wife.

47.  As mentioned above, even the original petition based on 2-year separation and unreasonable behavior was initially not contested by the Wife.  Parties’ 2-year separation was also confirmed by the Wife’s then solicitor at the hearing on 11 December 2017.  It was not until July 2019 when she suddenly filed a new Form 4 stating that she intended to defend the case because (among other things) “分居不符合事實”.  As the Wife failed to give any or good explanation as her change of stance, I therefore doubt very much about her credibility.

48.  On the other hand, I accept the Husband’s witness statement^[11] that the matrimonial disputes with the Wife had deteriorated to such extent by late 2013 that he considered that the marriage was over.  He then started sleeping at the office but would return to the former matrimonial home (“FMH”) every day to stay with the Daughter.

49.  In around spring 2014, the Husband reached an agreement with the Wife to move back into the FMH in order to take care of the Daughter, but they would live in separate rooms.  In this regard, the Husband had exhibited an “Agreement for Harmonious Marriage” which was signed by the parties^[12](“the said Agreement”).  At clause 4, the Husband stated to the Wife (among other things) that “... you will leave my room if I ask you to, and similarly, I will leave the master bedroom or the study if you ask me to.” 

50.  The Wife challenged that the said Agreement was a forgery.

51.  Since the Wife had positively alleged forgery, she bears an evidential burden of adducing evidence with cogency commensurate with the serious nature of the allegation of forgery: §§31-34 of Choi Lisa Mei Yin v Yau Pak Kin [2019] HKCA 812 (Court of Appeal).  Clearly, a bare assertion by the Wife does not satisfy the evidential burden. 

52.  Further, the said Agreement had been exhibited in the Husband’s Affirmation as early as September 2019. If the Wife had a genuine intention to challenge the authenticity of the said Agreement, she should have done so much earlier.  In my view, the Wife’s denial of the said Agreement is clearly an attempt to dissociate herself from evidence that is prejudicial to her own case.

53.  I therefore conclude that the said Agreement should be accepted as contemporaneous evidence that the parties lived in separate rooms and intended to live separate lives by June 2014.

54.  Based on the said Agreement, I also accept the Husband’s evidence that he then moved back into the FMH in June 2014 (i.e. the date of commencement of separation pursuant to the divorce petition).  It can be seen in screenshots of videos taken by the Husband on 12 June 2016 that he had his own room with a bed and desk in the FMH^[13].

55.  The parties then continued to live separate (albeit under the same roof) until around July or August 2016, when huge conflicts started to arise between them.

56.  In November 2016, the parties’ rented residence in Hangzhou was sold by the owner and the Wife rented alternative accommodation.  Since then, the parties have lived under separate roofs.

57.  The Wife mentioned in §34 of her Opening that “the fact H and W slept together and had sex many times in the Master bedroom should successfully refute the claim that [June 2014 is] the date of commencement of separation pursuant”.  However, she failed to explain why such an allegation is never stated in all her previous affirmations and Answer.  In my view, it was just a bare assertion of the Wife without proof.  I refuse to accept her evidence in this regard. 

58.  Having assessed the credibility of the parties, I have no doubt to prefer the Husband’s case on 2-year separation over the Wife’s case.

Alleged adultery of Husband

59.  The Wife has repeatedly alleged that the Husband had committed adultery since 2014 as part of her evidence in the main suit.  However, I consider that whether or not he had committed adultery is neither here nor there. 

60.  Section 11A of the MCO states clearly that the Court may find that the marriage has broken down irretrievably if at least one fact stated under section 11A(2) is satisfied.  Therefore, if the Court is satisfied that the parties had separated for a continuous period of at least 2 years immediately preceding the presentation of the petition, it does not (and indeed,should not) investigate in the alleged details of adultery.

61.  In the words of Cheung JA of the Court of Appeal in the case of SJH v RJH (supra):

“As both parties are now of the same view that the marriage has irretrievably broken down, the Court in exercising its divorce jurisdiction in a modern setting, will be loathe to allow the parties to use valuable court time to litigate a matter which has no impact whatsoever on the divorce itself and which should be dissolved as quickly and painlessly as possible. As Ormrod LJ observed in Grenfell v Grenfell [1978] 1 All ER 561 , 566 that:

There is no point, as I see it, in a case like this in conducting an enquiry into behaviour merely to satisfy feelings, however genuinely and sincerely held by one or other of the parties. To do so would be a waste of time of the court and, in any event, would be running, as I think, counter to the general policy or philosophy of the divorce legislation as it stands today. The purpose of Parliament was to ensure that where a marriage has irretrievably broken down, it shall be dissolved as quickly and as painlessly as possible under the Act, and attempts to recriminate in the manner in which the wife in this case appears to wish to do should be, in my judgment, firmly discouraged.” (emphasis added)

62.  Also in M v L [2020] HKCA 255, where the Court of Appeal stated:

“15. On the husband’s challenge to the Judge’s approach in refusing to entertain the petition based on adultery, as the Judge had repeatedly explained in [18], [43] to [45] of the Judgment and [20] of the Leave Decision, the modern approach accepted by the courts is that once the court reached a finding on the breakdown of the marriage on the basis of separation, it should adopt a sensible and pragmatic approach to dissolve the marriage as quickly and painlessly as possible. In so doing, the Judge rightly followed the well-established approach in Grenfell v Grenfell [1978] Fam 128 which was adopted by the Court of Appeal in the case of SJH v RJH [2011] HKCA 280, [2012] 4 HKLRD 308. This Court also upheld such an approach in THY v CHFR [2018] HKCA 240 which is indistinguishable from the present case in this respect.

16. We cannot see any relevance of the wife’s giving birth to a daughter with another man during the period of separation on the finding of two-year separation and the approach to be adopted. If at all, that fact only reinforced the finding of separation in terms of the manifestation of the wife’s intention to leave the husband. It could not assist the husband.”(emphasis added)

63.  In my view, the Husband’s adultery or romantic relationships with a third party as alleged does not assist the Wife in seeking for a dismissal of the Husband’s petition but only reinforces the finding of separation in terms of the manifestation of the Husband’s intention to separate with the Wife in the present case. 

Conclusion

64.  For the above reasons, I conclude that the Wife fails to establish any defence to the Husband’s divorce petition.  I also find that the parties have lived apart for a continuous period of at least 2 years immediately preceding the presentation of the petition, namely from and since June 2014 and now grant the decree nisi for dissolution of the marriage. 

65.  As to the question of costs, normally if the respondent does not contest the 2-year separation alleged by the petitioner, there should be no order as to costs for the main suit.  Unfortunately, the Wife chose to contest vigorously but fails.  As costs shall follow events, I make an order nisi that she do pay costs of the suit to the Husband with certificate for counsel, to be taxed if not agreed, which shall become absolute unless any of the parties apply to vary the same by summons.

66.  I thank Counsel for her assistance.