W v. H

FCMC 6843 / 2022

[2023] HKFC 224

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES

NUMBER 6843 OF 2022

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JUDGMENT

( Defended petition : 2 years’ separation )

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1.  By her petition for divorce filed on 29 July 2022, the petitioner wife seeks to divorce with the respondent husband, alleging that they were separated since 24 July 2020 (“Separation Date”), with her living together with the son at a cubicle flat at Kwun Tong (“Kwun Tong cubicle”), whereas the husband at an address unknown to her.

2.  The husband defends the petition, claiming that they have not separated. He also says that they have agreed to adopt a living pattern whereby they would not be living together for some years, so that he could focus on his job. He has continuously fulfilled his duties pursuant to the marital contract by, eg allegedly raising loans to provide funds for the wife to purchase a property for her parents and another property for her in China. Hence, he regards that there was no separation and that the marriage has not broken down irretrievably. 

3.  There are only 2 witnesses in this trial, namely the parties themselves. Oral evidence was heard by me on 16 October 2023.

4.  On 30 October 2023, I find that the parties did separate from 24 July 2020 and that their marriage has broken down irretrievably. I formally pronounce in open court that decree nisi be granted, with reasons of my judgment handed down on the same day. The followings are my reasoning.

Background

5.  The wife, born in 1989, is now 34 years old. She is now working as a part-time clerk. The husband was born in 1971 and is now aged 52. He is an audit senior with an accounting firm.

6.  The parties came to know each other in 2010. The wife was then a PRC citizen. The husband is a citizen of Hong Kong.

7.  In 2012, they got married. Their only son was born in Hong Kong in October 2015, as a result of IVF (in vitro fertilization) treatments. The son is now 8 years old studying primary 2.

8.  Since their marriage, the wife, and later with the son, lived mostly in Shenzhen. The husband visited them during weekends, though he claims that he lived together with the wife for a long time in Shenzhen during the period of time when he lost his job.

9.  Their marital relationship started to get worse in 2016. The wife alleges that it was because the husband did not care about her and the son, and above all, did not give her sufficient maintenance. Since then, she has not lived with the husband again.

10.  In September 2016, the wife was approved of her single way permit to live in Hong Kong. In September 2017, she came to settle down in Hong Kong for good. She rented the Kwun Tong cubicle. She has been living there with the son up to date.

11.  In 2020, the wife filed her petition for divorce (FCMC 6591/2020), claiming that the parties separated from January 2016. (“Old Petition”). The husband defended the petition. However, this petition was struck out on 27 January 2021, since the wife failed to set down the trial of the defended petition pursuant to an unless order.

12.  The wife explains that she did not proceed with the Old Petition, because she was advised that she did not have sufficient documentary evidence on the separation. The husband, however, avers that she withdrew the Old Petition because the date of separation stated therein (ie January 2016) was chronologically contradictory to her application for the single way permit to Hong Kong.  In her application form for the single way permit dated 28 March 2016, the wife stated that she applied to come to Hong Kong for “family re-union”.

13.  For the purpose of this trial, I see little relevancy as to why the wife withdrew the Old Petition. Suffice for me to point out that with benefit of legal advice, the wife instructed her solicitors to duly write to the husband on 9 March 2021, putting it on records that the parties had separated since 24 July 2020, ie the date when she filed the Old Petition.  Two years later in 2022, she filed this petition for divorce.

The law

14.  It is trite to say that there is one ground of divorce in Hong Kong, namely the marriage has broken down irretrievably (See: section 11 of the Matrimonial Causes Ordinance, Cap 179 (“MCO”).

15.  The wife relies on one of the 5 facts set out in section 11A of the MCO, ie the parties to the marriage have “lived apart” for a continuous period of at least 2 years immediately preceding the presentation of petition (See: section 11A(2)(d) of the MCO).

16.  The learnt authors of Rayden and Jackson on Relationship Breakdown, Finances and Children (Issue 27) have explained the concept and requirement of “living apart” at paras 6.258 - 6.259, which is summarised as follows:

(1)  A state of ‘living apart’ does not exist so long as both parties “bona fide recognise” the marriage as continuing, even though they are separated;

(2)  The relationship does not end by reason of a separation brought about by presence of external circumstances;

(3)  Whether there was sexual intercourse, dwelling under the same roof, society and protection, recognition in public and private, and correspondences during separation are indicia or elements showing whether the marriage does or does not exist. The weight to be given to each of these indicia or elements will vary with the health, position in life and all the circumstances of the parties;

(4)  It is open to one of the parties to decide to live apart and such decision need not be communicated by words or conduct to the other party. An “uncommunicated ending” of recognition that a marriage is subsisting can mark the moment when “living apart” commences.

Dwelling under same roof

17.  The wife says that since she came to settle in Hong Kong in 2017, she rented the Kwun Tong cubicle and has been living there with the son only since then. The husband has never lived with her in the Kwun Tong cubicle.

18.  The husband, however, claims that he moved into the Kwun Tong cubicle to live with the wife as a family in 2017^[1].  He provides a tenancy agreement dated 22 August 2017 showing that the tenants stated therein were he and the wife.

19.  In relation to this tenancy agreement, the wife explains that as at 2017, she was a new emigrant to Hong Kong and did not have income proof. The landlord was reluctant to rent the Kwun Tong cubicle to her. Therefore, she enlisted the help of the husband to provide his name and telephone number in the tenancy agreement. However, it was she who signed in the tenancy agreement, and it was she who paid for the rent.  After she settled down and was able to provide income proof, the landlord had confidence in her.  Therefore, she signed the 2^nd and 3^rd tenancy agreements with the same landlord in her own name.

20.  Upon due consideration, I believe in the wife’s evidence on the tenancy agreements. She is able to provide a copy of the 2^nd and 3^rd tenancy agreements which support her claim that these agreements were signed by her in her own name. It is noted that the information of the husband was removed in the 2^nd and 3^rd tenancy agreements.

21.  On the other hand, the husband’s case on whether he has been living together with the wife at the Kwun Tong cubicle is shifting, unclear, illogical and/or contradictory.

22.  One of the versions is that he lived/lives with the wife at the Kwun Tong cubicle.  However, this does not sit well with his other evidence that the wife refused to give him the key to the Kwun Tong cubicle and/or to let him stay there^[2]. Such refusal to provide a key to and to let him stay in the Kwun Tong cubicle is clear evidence showing her intention to separate from him.

23.  At one stage of his oral evidence, the husband claims, for the first time, that although the wife did not give him the key, she gave the key to the son who would allow him to enter Kwun Tong cubicle. If that bears any truth, he would not have to sleep at irregular places. According to his own evidence, he occasionally stayed overnight in office or sometimes looked for other non-permanent places such as hostels. He also slept in the airport, or rented a hotel room via the website of Agoda, or was offered a bed to sleep by a Filipino lady whom he had helped before. 

24.  It is also very telling that his address for service in this case is not the Kwun Tong cubicle, but a PO Box in Quarry Bay.

25.  All these show that his allegation that he lived/lives with the wife at the Kwun Tong cubicle is not believable.

26.  There is another version of the husband’s case. He attempts to paint a picture that the parties have consensus that they would be physically apart due to his job requirement.  However, it is not the case that this husband had an overseas job at the material times. His workplace was, and still is, in Hong Kong. Hong Kong is a city which is easily commutable and accessible. It is illogical that the parties would have to live physically apart continuously in such circumstances of the case after the wife came to settle down in Hong Kong in 2017.  I do not accept this version of his evidence.

27.  The husband then comes up with another version of his case, namely he has all along fulfilled his obligations and duty pursuant to the contract of marriage, namely by repaying the loans that he had raised to facilitate the wife to buy properties for her and her parents in China.  He was, and still is, willing to continue his marital obligations to live with the wife but was/is prevented to do so by her. This, in my view, shows again the clear intention of the wife to separate from him.

28.  Last but not the least, even if (just assuming) the husband did live at the Kwun Tong cubicle from time to time, this does not mean that there was no separation.  Parties may live their lives separately, even though they are still under the same roof.  In this case, there is clear evidence that the wife lived her life to the exclusion of this husband.

29.  Upon weighing all the evidence, I do not believe that the husband had lived with the wife at Kwun Tong cubicle at all since 2017.

Sexual intercourse

30.  According to the wife, the husband refused to have sex with her since the beginning of the marriage. When she was living with him at Tuen Mun Plaza, they slept in separate bedrooms. During their marriage, they had sex for several times only. Their son was not naturally conceived but by IVF. And ever since she came to settle in Hong Kong in 2017, she has not had sex with the husband.

31.  In his affirmation in opposition, the husband has not expressly objected that he has not had sexual intercourse with the wife since 2017.

32.  It is thus clear to me that the parties have not had any intimate or sexual relationship since 2017.

Communication between the parties

33.  The husband suggests in the trial that there was communication between the parties. For example, the wife had asked him to attend the interview of the son at the same primary school which the husband is the alumni.

34.  In my view, separated husband and wife have the need to communicate and co-parent if they have any child(ren) of the family.  This is just normal and necessary for the beenfit of their child(ren). However, such communication relating to their child(ren) cannot be taken as an element that the marriage between them is still subsisting. Furthermore, the wife says that apart from this communication about the son’s school interview, there were merely 2 more times of communication between them over the years, namely in relation to the 1^st tenancy agreement, and about her withdrawal from applying for a public housing unit with the husband as a family unit. Apart from these few occasions, there was no other communication between them.

35.  There is no discernible reason not to believe what the wife says. As a matter of fact, I have the benefit of observing the demeanour of the parties while they were giving evidence in the witness box. Throughout the trial, the husband addressed the wife as “the petitioner”; and he requested the wife’s solicitors to address him as “the respondent”. The overall impression received by me is that their relationship is cold, strained and bitter.

Financial hardship

36.  The husband argues that the court should refuse to grant decree nisi because the dissolution of the marriage would cause financial hardship to him. He explains that during the marriage, he had borrowed from banks in order to raise money for the wife to purchase properties in her own name or for use by her parents. After the Old Petition was struck out, the wife disposed of her property by transferring it to her parents to make her property out of reach by him. And he is made to take up all the liabilities of the loans which he is now still repaying, so that he has no further means to provide financial support to the son.

37.  He refers me to section 15B of the MCO which reads,

“15B. Decree to be refused in certain circumstances

(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.”

38.  It is important to point out that the husband has not raised the issue of the alleged “financial hardship” in his Answer to the Petition or his affirmation. Apart from his mere say so, he has not provided any information or documents on the alleged loans and/or his financial hardship.

39.  Even if the court is to take into account his Form E dated 5 October 2020 and filed under the Old Petition (which is the only available information on his financial situation in the court records), he earned $24,210 per month and spent $23,065 per month. His claimed expenses already included the loan repayment and interest. On what he deposed in his Form E, he could make his ends met.  Therefore, even according to his own Form E, the allegation of “financial hardship” is yet to not proved.

40.  I therefore reject the husband’s claim that the dissolution of the marriage would cause financial hardship to him. His allegation of the wife’s disposing of any of her properties may be dealt with in the ancillary relief proceedings.

Conclusion

41.  For all the matters set out above, I conclude and rule that the parties separated from 24 July 2020, and that their marriage has broken down irretrievably. I pronounce that there should be a decree nisi in respect of the main suit.

42.  I have already heard submission on costs during the stage of final submission. The wife asks that costs should follow the event. The husband submits that each party shall bear his own costs, because it is the wife who initiates the divorce proceedings.

43.  I see no reason why in this case, the costs should not follow the event. Accordingly, I make a costs order that the husband shall bear the wife’s costs of the main suit, including this trial and costs reserved. Her own costs shall be taxed in accordance with the Legal Aid Regulations.  

44.  The wife’s legal team shall draw up the court order for approval.

[1] Husband’s affirmation [30/§4.1].

[2] Husband’s affirmation [35/§10.5].