LYT v. NAC

FCMC 16793 /2013

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES NO 16793 OF 2013

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J U D G M E N T
(Dismissal)

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1.  This is an application by the respondent wife dated 13 March 2014 that the husband’s petition be dismissed for want of jurisdiction or, in the alternative and without prejudice to the first point, that all further proceedings be stayed on the basis that Thailand is the forum conveniens.

2.  I should say at the outset that I intend to grant the wife’s application to dismiss the husband’s petition for want of jurisdiction, and therefore there will be no need to determine the forum non conveniens point.

3.  In terms of issues, there is in effect only one point that requires determination: does the husband have jurisdiction to issue divorce proceedings in Hong Kong?  In the husband’s divorce petition of 9 November 2013, he asserts that he is domiciled in Hong Kong, and it is on that basis that he says that he has the jurisdiction to proceed with the divorce in the territory.

4.  In terms of the law, I would just like to make reference, first of all, to jurisdiction for divorce which is found in section 3 of the Matrimonial Causes Ordinance, Cap 179 which I think you have both referred to, but I should just repeat for the record: 

“The court shall have jurisdiction in proceedings for divorce under this ordinance if either of the parties to the marriage was (a) domiciled in Hong Kong at the date of the petition or application; (b) either of the parties to the marriage was habitually resident in Hong Kong throughout the period of three years immediately preceding the date of the petition or application; or (c) either of the parties to the marriage had a substantial connection with Hong Kong at the date of the petition or application.”

5.  In this case, the husband has pleaded in his divorce petition that he is domiciled in Hong Kong and that the wife is domiciled in the United States.  He has not pleaded either habitual residence or substantial connection, and therefore I will not be dealing with either of those points.

The Law on Domicile

6.  I gave both parties a copy of the Domicile Ordinance, Cap 596 which came into effect on 1 March 2009.  This states, inter alia, and I would like to begin by referring to section 3, under “General rules”, this states and again for the record that “Every individual has a domicile.  No individual has, at the same time and for the same purpose, more than one domicile”, and “where the domicile of an individual is in issue before any court in Hong Kong, that court shall determine the issue in accordance with the law of Hong Kong”. An adult will acquire the domicile that he had immediately before he became an adult, and for an adult to obtain a new domicile in another country or territory, he or she must be present there and he or she must have an intention to make a home there for an indefinite period.  And in that respect, you should see section 5.

7.  So can the husband be said to be domiciled in Hong Kong?  In this case, it seems reasonably clear that although the husband was originally domiciled in Hong Kong that he then obtained a new domicile in Thailand and that this is the case notwithstanding the fact that he has a Hong Kong permanent ID card and other connections with the territory. 

8.  To that end, I think it is worth repeating a reference to this point that is made in two other cases: a First Instance decision in Y v W which you can find in 2 HKC [2012] 455 and in the Court of Appeal decision of Y v C [2013] HKCU 645.  This states as follows:

“The concept of domicile does not have anything to do with a person’s right of abode in Hong Kong because his right of abode does not depend on his domicile. Right of abode is a concept used in the context of the Immigration Ordinance and the Basic Law. A person who enjoys the right of abode in Hong Kong has the right to land in Hong Kong and has the right not to have imposed upon him any conditions of stay in Hong Kong. He also has the right not to have a deportation order made against him and not to have a removal order made against him. All Hong Kong permanent residents enjoy the right of abode. This is, however, different from domicile.”

The Husband’s Background

9.  The husband explains in his affidavit that he was born in Hong Kong and that he then emigrated to Canada when he was about 5 years old.  Once I assume residency in Canada had been established, he then returned to Hong Kong which is where he completed his schooling.  He then went to the USA for his tertiary education and worked there for a year before returning to Hong Kong in 2003.  He then lived and worked in Hong Kong until September 2009.  In February 2009, he met the wife at work and they subsequently formed a relationship.  In September 2009, they both decided to further their studies at X College in the PRC which was a two-year course, and they subsequently lived on the mainland for that period of time.

10.  There is little detail about the wife’s background in her affidavit.  However, she did inform the court that she has only lived in Hong Kong for a short period of time, ie from about 2008 to September 2009.

11.  On the face of it, therefore, it seems likely that the husband was domiciled in Hong Kong prior to relocating to Thailand.  It seems highly probable that the wife has never been domiciled in Hong Kong.  She is presently residing in the US.

12.  The parties married in Hong Kong in March 2011, and following their marriage, they moved to Thailand.  At some point, they decided to establish a business there, ie a small boutique hotel or hotels.  I am not sure which.  The husband has remained in Thailand since that time and indeed is currently residing there.  I note that the parties have never lived in Hong Kong as a married couple.

13.  It is not disputed that the parties initially rented a condo in Bangkok and that this was their home.  They subsequently moved together to the hotel for a short while before renting a further house on a three or possibly four-year lease. They also had their only child in Thailand, a boy born in June 2012.

14.  By all accounts, they established their home and life there.  Thus, the husband appears to satisfy the requirements of establishing a new domicile, namely, that he was and is physically present in Thailand and that to all intents and purposes he intends to make a home there for an indefinite period.  It is said that he has formed a new relationship with a Thai woman.

15.  In support of this contention, the wife was able to produce copies of the Thai joint bank account passbook.  The husband also confirmed that he held a Thai bank account in his own name.  In an application for a re-entry permit into Thailand dated 12 August 2011, the husband confirmed that he was a Canadian national, that his present address was in Bangkok and that he intended to visit Hong Kong.  In US tax documents, he also confirmed that his permanent address was in Bangkok.

16.  I should add that it appears to have originally been the intention of the parties to divorce in Thailand, that they entered into a divorce agreement there on 29 June 2013.  This was before the husband issued divorce proceedings in Hong Kong.  The husband has since alleged that he only signed this agreement under duress.  With respect, this is something that will need to be dealt with by the Thai courts. 

17.  The wife left Thailand on 30 June 2013 and is currently residing in the US with the parties’ son.  She has only ever lived in Hong Kong for short periods of time.

18.  In conclusion then, it seems to me that on the evidence it cannot be said that the husband is domiciled in Hong Kong.  His home is in Thailand.  In such circumstances, I will make an order in terms of paragraph 1 of the respondent’s summons dated 13 March 2014 as follows: the petition for divorce issued on 21 November 2013 and the proceedings thereunder be dismissed on the ground that Hong Kong has no jurisdiction in these proceedings; costs be to the respondent, to be taxed if not agreed, on a party-and-party basis.