PKWP v. TTS

FCMC 15604 / 2009

   IN THE DISTRICT COURT OF THE

   HONG KONG SPECIAL ADMINISTRATIVE REGION

   MATRIMONIAL CAUSES

   NUMBER 15604 OF 2009

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BETWEEN

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J U D G M E N T

(Defended Petition)

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Introduction

1.  This is a defended divorce. The wife seeks a decree based on the husband’s unreasonable behavior. The husband, for his part, would like to be reconciled with the wife.

2.  This is a very sad case. The husband who is a news cameraman by profession has chosen to defend the wife’s divorce petition seemingly and certainly in part because of his own religious convictions. He and the wife became Christians during the course of their marriage. The wife, a reporter, left the husband and their children in October 2009 to cohabit with another man. Although the husband is desperate to effect a reconciliation, that has not been possible and the parties have lived separate and apart since that time.

3.  The wife now asks that the marriage be dissolved, something that even now is still being resisted by the husband.

Background

4.  The parties married in July 2000 and had two daughters who are now aged 8 and 7 years old. According to the husband the parties were initially very happy and deeply in love. In his view difficulties arose when the elder daughter was promoted to P1. The wife for her part complains about a number of different matters. These will be discussed in greater detail below.

5.  The wife filed for divorce on the 14 December 2009. The husband filed an Answer on the 20 January 2010. He did not cross petition. The wife filed her Reply on the 21 April 2010.

Issue

6.  There is really only one issue to determine namely – on the balance of probabilities has the husband behaved in such a way that the wife cannot reasonably be expected to live with him and consequently can the parties marriage be said to have broken down irretrievably?

The law

7.  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 s 11A of the Matrimonial Causes Ordinance, Cap 179. It is also possible to apply for a divorce jointly based on one year separation. In this instance the wife relies upon the ground of unreasonable behaviour.

8.  Where it is clear that a marriage has broken down irretrievably, the parties are encouraged by the courts in Hong Kong, to adopt a sensible and pragmatic attitude with a view to dissolving their marriage as quickly and as painlessly as possible. Where the particulars pleaded are sufficient to enable a decree to be granted, then the court will do so without investigating into any other allegations made. (See Grenfell v Grenfell [1978] Fam 128). Rayden puts it thus:

Facts sufficient on which to grant a decree

9. 65 Where on the face of the pleadings there are facts sufficient to enable the court to grant a decree of dissolution, the Court of Appeal has firmly declared that it is in general wrong to permit a party to have other allegations investigated. In particular, where on the face of the pleadings five years’ separation is alleged by a respondent and admitted by the petitioner who has alleged behaviour in the petition, there is no point in conducting an inquiry into behaviour merely to satisfy feelings, however genuinely and sincerely held by the petitioner.

9. The difficulty in this instance is that although the parties have been separated for more than one year and the wife is living with another man and therefore from a technical perspective is committing adultery on a continuous basis, nevertheless the husband refuses to cross petition or to consent to a divorce based on one year separation. This has meant that a short trial has become inevitable. This is a waste of court resources and is to be discouraged.

The Ground of “unreasonable behaviour”

10.  S. 11A 2(b) stated that

“11A. Proof of ground for petition

(2)  The court hearing a petition for divorce shall not hold the marriage to have broken down irretrievably unless the petitioner satisfies the court of one or more of the following facts –

……

(b)  that the respondent has behaved in such a way that the petitioner cannot reasonably be expected to live with the respondent;”

11.  So what is meant by that? The appropriate test was originally formulated in the case of Livingstone-Stallard v Livingstone-Stallard 1974 2 ALL ER 766. In that case the Judge posed the following question:

Would any right thinking person come to the conclusion that this husband has behaved in such a way that this wife cannot reasonably be expected to live with him, taking into account the whole of the circumstances and the character and the personalities of the parties.

12.  It is then both a subjective and an objective test. The issue is not so much whether one spouses actions are unreasonable per se (although they may be), but rather whether this particular spouse found the other’s actions unreasonable. On that basis the court will determine whether or not the one can be reasonably expected to live with the other. This test has been approved in a number of cases since, including O’Neill v O’Neill 1975 3 All ER 289 which was cited with approval in the Hong Kong case Lindsay v Lindsay FCMC 1569/1982 referred to below.

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

14.  In addition I have been referred to two Hong Kong judgments – Lindsay v Lindsay FCMC 1569/1982, unreported and Li Kao Feng Ning, Judy v Li Hung Lit, CACV 58/1983, unreported, which go to support the wife’s general propositions as set out in her opening as follows:

7.  However desirous for R for reconciliation, the Court should hold that the marriage has broken down irretrievably when P is not prepared to continue cohabitation, see: Lindsay v. Lindsay FCMC 1569/1982

8.  The position is the same even if P is responsible or partly responsible for the breakdown, see: Li Kao Feng Ning, Judy v. Li Hung Lit CACV 58/1983.

Has the husband behaved in such a way that the wife cannot reasonably be expected to live with him?

15.  In summary the wife complains of four things. I will deal with them, if I may, in order of perceived importance during the trial:

1) Differences of religious belief;

16.  This is not referred to in the particulars of the divorce petition. However in his Answer the husband says as follows:

(3)  Both the Petitioner and the Respondent are Christians and in the past two to three years, the pastor of their church has tried to help them in their personal and marital matters.  The Respondent believes that religion can help them and give them support.  Through the process of sharings and confessions, the Respondent believes that would help the Petitioner to understand again the value of marriage and family.  So that, the Respondent tolerated the Petitioner’s behaviour for many years for the sake of peace and maintaining the marriage.  The Petitioner can change and save marriage.

17.  The wife denies this paragraph generally in her Answer and puts the husband to strict proof.

18.  Much has been made of this aspect of the case by Counsel for the wife. Having heard the husband I have no doubt that his religious faith is of the utmost importance to him and that in part his refusal to compromise this matter is due to his own spiritual convictions. I also have no doubt that he once loved and perhaps still loves his wife deeply and that he is finding the divorce process incredibly difficult to come to terms with.

19.  Counsel for the wife says that differences in the party’s religious beliefs can be seen from the way the couple related to their children and from their relationships with other third parties. In particular reference is made to the fact that the husband did not wish non Christians to be engaged to assist the family (e.g. their domestic helper and mandarin teacher). Although I can understand that this might have been an irritant I am not sure that it could be said to constitute behavior of the type sufficient for a divorce from an objective perspective. Even from a subjective viewpoint I tend to be of the view that the wife did not really come up to proof on this aspect of the case. I am also mindful of the fact that this was not even referred to in her own Divorce Petition and is only barely mentioned in her Reply.

2) Differences in approach with respect to teaching and disciplining the children;

20.  The wife says in the particulars of her petition that the parties quarrelled frequently after the birth of the children. She adds that

(7)  There are frequent quarrels between the Petitioner and the Respondent, especially after the birth of the children.  The Respondent always makes personal criticisms on the Petitioner and attacks to the character and belief of the Petitioner.  The Petitioner thereby suffers from diminished self-esteem and feels unhappy in the marriage.

(8)  Throughout the marriage, both the Petitioner and the Respondent have a role in the upbringing of the children.  The Petitioner loves her children and has put in many efforts in their care and education.  However, the Respondent always disagrees with the Petitioner on the teaching method of the children.  He also blames the Petitioner for causing the poor performance at schoolwork of the elder daughter.  While there is no suggestion that what the Respondent said are true, the Petitioner was disturbed and upset because of the Respondent’s repeated criticisms and complaints.

(9)  The Respondent has a violent and uncontrollable  temper.  He easily loses his temper on trivial family matters and always scolds the Petitioner violently.  The Respondent always alleges in the presence of the children that the Petitioner is not a “good mother” and a “good wife”.  Such allegations of the Respondent are totally unfair and untrue.  The Respondent’s behaviour has caused much distress to the Petitioner.

(10)  The Respondent’s uncontrollable temper also adversely affects the children.  The Respondent applies corporal punishment on children and has once hit the elder daughter with a wooden hanger so badly that broke the hanger.  In addition, the Respondent always quarrels with the Petitioner in the presence of the children and pulls and drags the children who are innocent.  On 30 November 2009, when the Petitioner visited the children at the matrimonial home, the Respondent refused to allow the Petitioner in and started to scold the Petitioner.  While the Petitioner did not wish to argue with the Respondent, the Respondent continued to shout at the Petitioner and lost control.  The children were so scared that they could not stop crying.  The Petitioner was also very worried and therefore called the police and the Respondent’s brother for help.  The dispute was settled only after the policemen and the Respondent’s brother arrived.

21.  To a certain extent the wife’s version of events is collaborated by the husband’s oral testimony. He confirms that they were happy until the elder child was promoted to P1, whereupon her school began to pressure them in relation to the elder daughter’s poor academic performance. He says that the wife experienced great stress and pressure as a result. He also accepted that on one occasion he used a wooden coat hanger to discipline the elder child to the extent that the coat hanger broke (although he maintained that the coat hanger was “prone” to breaking). The wife, quite rightly complains of this. The husband also makes counter allegations against the wife with respect to her own ways of teaching and disciplining the children. In particular he says that she is emotional and has a violent and uncontrollable temper.

22.  In part I accept that what is described by each of them is simply symptomatic of a marriage breaking down. However I accept in particular that there were frequent quarrels between the parties and that each criticized the other from time to time. I confirm that this made the wife unhappy. It is clear that the parties had difficulties and disagreements when it came to teaching the children and that this led to increased tensions between them. Although the husband denies it I accept that on occasion he accused the wife of not being a good wife or mother. The husband admits to using corporal punishment and I am also mindful of the incident of the 30 November 2009. It seems to me that this particular wife, from both an objective and subjective perspective, found the husband’s actions in this respect to be unreasonable, to the extent that she should not be required to live with him. It may also be that the wife’s actions could also be similarly described. However I have not been asked to consider the wife’s part in this, as the husband has not cross petitioned and consequently I must leave the matter there.

3) General bad behavior of a financial nature

23.  Given my findings above, I do not intend to go into this aspect of the case. I am of the view that although on the milder end of the spectrum, that the particulars pleaded by the wife in paragraphs 7 - 10 of her petition are sufficient to enable a decree to be granted. I do not therefore intend to investigate into any of the other allegations made. (See Grenfell v Grenfell [1978] Fam 128).

Reconciliation

24.  In coming to this conclusion I am also mindful of the fact that when examining all of the evidence before me and when asked, that the wife confirmed that there was no possibility of reconciliation with the husband. The husband also admitted that the wife moving out of the matrimonial home and altering the payment arrangements for household bills from her name to his was a “permanent arrangement”. Nevertheless he did not agree that the marriage had broken down irretrievably. However he was not able to put forward any concrete proposals regarding a possible reconciliation in the future. In my view the last paragraph of the husband’s answer sums up his approach:

… the Respondent tolerated the Petitioner’s behaviour for many years for the sake of peace and maintaining the marriage.  The Petitioner can change and save marriage.

25.  In other words the husband expects the wife to change and sees nothing wrong with his own behavior. At the end of the day he accepts that he has simply tolerated the wife’s own bad behavior. He places the blame on her shoulders. He does not seem prepared to do any proactive in order to resolve the situation.

26.  In line with the guidance provided by Lindsay v. Lindsay FCMC 1569/1982 and Li Kao Feng Ning, Judy v. Li Hung Lit CACV 58/1983 I also accept that the fact that the wife refuses to return to the husband and to live with him, is further proof of the irretrievable breakdown of the marriage. The fact that the wife maybe said to be partly responsible for that state of affairs does not alter the situation.

Conclusion

27.  I will therefore grant a decree nisi of divorce based on the husband’s unreasonable behaviour. In doing so I accept that the behavior complained of falls within the lower end of the spectrum deemed to be unreasonable. It is though quite clear that this marriage has broken down irretrievably and that there is no possibility, certainly as things stand at present, of a reconciliation. I am also of the view that this matter can and should have been dealt with differently – by consensus if at all possible. The husband was warned on several occasions of the possible cost consequences if he failed to be reasonable. I understand and appreciate his concerns, but notwithstanding that I intend to make an order nisi to be made absolute in 28 days time, the husband do pay the wife’s costs of and incidental to the suit, including any costs reserved, such costs to be assessed summarily. Both sides shall file a written submission in relation to the summary assessment of costs within the next 42 days if agreement cannot be reached in the meantime.