(a) 案例確立，如果明顯地雙方的婚姻已破裂至無可挽救的地步，雙方就應該採取一個務實和明智的態度，以期儘快地和儘量的無痛地了結婚姻。如果根據呈請內容，已足夠讓離婚命令頒發，法庭就不會再對其他的指控作深入的調查。
7) …… As both parties are now of the same view that the marriage has been irretrievably broken down, the Court in exercising its divorce jurisdiction in a modern setting, will be loathed to allow the parties to use valuable court time to litigate on 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 at 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.’
8) (a) In that case the wife petitioned for divorce based on the husband’s behaviour. The husband filed an answer denying the wife’s allegation and cross petitioned for divorce based on five years’ separation. The wife admitted the parties had been separated for five years but opposed the cross petition on the ground that she would suffer grave hardship as provided for by section 5 of the Matrimonial Causes Act 1973 in that, because of her religious belief, ‘her conscience would be affronted if the marriage were to be dissolved other than for grounds of substance whereby the true cause of the breakdown of the marriage would be determined by the Court...’. The Court struck out the wife’s petition.
(b) The English Court of Appeal dismissed the wife’s appeal against the striking out. Ormrod LJ emphasized that there is only one ground in which the court has power to dissolve a marriage, namely, the marriage has broken down irretrievably and there are five separate facts, one of which has to be established in order to prove that the marriage has broken down irretrievably. On the facts of the case there was nothing further to inquire other than the fact that the parties had been living apart for five years.
(c) While it is true that in Grenfell there was common ground that the parties had been separated for five years, which is not the situation here if the proposal by the husband is to be ignored, the discussion by Ormrod LJ on the underlining principle of a modern divorce is instructive and apposite, if not more so, 35 years after that decision to modern Hong Kong.
9) The issue of behaviour i.e. the wife’s adultery also has no impact on the more substantial dispute of the parties namely, the question of custody of the children and ancillary relief. Specifically in respect of ancillary relief, the Court of Final Appeal has in LKW v. DD (2010) 13 HKCFAR 537 at 540 stated that,
‘Conduct, or more accurately, negative conduct, is therefore only to be regarded as a material factor if it is “obvious and gross” in the sense explained in Wachtel v Wachtel or, which comes to the same thing, if it is such that it would in the opinion of the court be inequitable to disregard it.’
10) I am of the view that the same reasoning would apply to the issue of custody as well. The adultery by the wife, which is denied by her, cannot amount to anything like gross misconduct which may affect the husband’s position on these two issues now that the divorce, custody and ancillary relief applications will be addressed in Hong Kong and not elsewhere.
(c) 在本案來說，訴訟雙方的一段婚姻並無子女。不論在本案和新案(FCMC 14326/2015)，男方對女方並無任何附屬濟助要求。訟費方面，男方要求無訟費命令。雖然在本案的交相呈請下，女方向男方提出各種附屬濟助的要求，但她並沒有就此採取跟進之法律程序。在新案下，她更並沒有提出任何附屬濟助要求。
(e) 在以上各點的考慮下，雙方本來就應以男方提出的一年分居及同意來了結訴訟雙方的婚姻。因此，女方提出的交相呈請，是並不需要的。換言之，女方並不應得包括呈請和交相呈請的訟費。