KEWS v. NCHC

FCMC 13087 / 2008

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES

NUMBER 13087 OF 2008

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R U L I N G

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Introduction

1. This is an application by the respondent wife who seeks an order as follows, namely that:

1.1 The hearing of the main suit scheduled for the 20 February 2009 be vacated.

1.2 The cause be removed from the special procedure list.

1.3 Directions for trial dated 2 February 2009 be set aside on the ground that the time to file her Answer has not yet expired.

1.4 In the alternative the Wife do have leave to file and serve her Answer within 21 days.

1.5 The Wife to have her costs.

2. I refused to vacate the hearing on the 20 February or to remove the cause from the special procedure list, on the premise that this Ruling would be handed down prior to the 20 February 2009 and that appropriate directions could be given following that Ruling, if necessary.

The issues to be determined

3. The main issues to be determined are a) whether or not the directions should be set aside on the basis that time for filing the Answer has not expired and b) perhaps more importantly, whether in the alternative the wife should be given leave to file her Answer out of time. 

Background

4. The parties married on the 8 December 2000 in the United Kingdom.  There are no children of the marriage.  The parties are young, now aged only 32 and 30 years respectively.  Unfortunately the wife has significant health problems identified in her affidavit of the 7 February 2009 as gastrojejunostomy, duodenojujenostomy, perineal proctectomy, total gastrectomy and closure of ileostomy. 

5. On the 3 November 2008 the husband issued a petition based on two years separation, alleging that the parties had been separated since August 2006.   The wife disputes the fact of the separation, although she seems to acknowledge that the parties began to live separate and apart from each other from about the end of 2006.   In the alternative the wife says that she opposes the decree in any event because it would result in grave financial or other hardship to her.   The details surrounding the alleged separation are only particularised in her affidavit as follows:

9. I also deny that there was any separation as alleged or that the separation commenced from the time as alleged.

10.   There was never any understanding between the Petitioner and me that we were going to live apart from each other in the nature of a separation.   The circumstances of the alleged “separation” were that he told me at the end of 2006 that he felt exhausted after taking care of me for such a long time when I had been suffering from serious illnesses and he asked for a break.  He promised that he would return to me as soon as he felt better and he made the same promise to my father.  My father-in-law also reassured me that the Petitioner needed a break and would not be abandoning me.

6. No particulars are provided in support of her case for grave financial or other hardship.  No draft Answer has been provided.  She simply states that she has good grounds for opposing the petition and that she is totally dependent on the husband financially.  

Discussion

Should the directions for trial be set aside on the basis that time for filing the Answer has not expired?

7. In short I believe that the answer to that question must be no. 

8. On the 10 October 2008 the husband’s solicitor wrote a conciliatory letter to the wife asking how she wished to proceed with matters given that the parties had recently discussed their marital relationship and had come to the conclusion that their marriage should be formally dissolved.  The solicitors asked for a response by the 24 October 2008.  On that date they received a letter from Messrs WK To & Co in which they confirmed that they were instructed to act for the wife.  They promised to revert shortly.  The husband’s solicitors responded and agreed to withhold filing the petition until the 31 October 2008.  On the 30 October 2008 the wife’s solicitors responded with a somewhat aggressive letter inter alia denying the fact of the separation and stating that the wife had not agreed that the marriage should be dissolved because she maintained the “Christian position that marriage is a lifelong commitment”.  Nevertheless they said that the husband should make financial provision for her.

9. On the 3 November the husband’s solicitors served the petition on the solicitors for the wife.  They state quite categorically as follows:

In the event that you do not have instructions to accept service, please inform us immediately and we will arrange for personal service on your client. 

10. Unfortunately the wife’s solicitors simply chose not to respond, notwithstanding the fact that they had informed the husband’s solicitors that they were acting on behalf of the wife on the 24 October 2008.  It appears that they were relying on the assumption that the petition had to be served personally in accordance with Rule 14 of the Matrimonial Causes Rules.  In the meantime it is quite clear that the wife was aware of the petition because 4 days later she applied for Legal Aid.  The statutory 42-day stay came to an end on the 18 December 2008.  On the 22 December 2008 Legal Aid was refused.  On the 27 December the wife’s solicitors filed Notice of Acting and on the 2 January 2009 they wrote to the husband’s solicitors disputing service.  The wife filed an Acknowledgment of Service on the 16 January 2009.  Consequently she argues that time for service of the Answer should run from the 16 January 2009.  Therefore the wife should have filed her Answer by the 6 February 2009.  She has not done so. 

11. It seems to me perfectly proper, in the circumstances, for the husband’s solicitors to have served the wife’s solicitors asking them to inform them if they did not have instructions to accept service.  The wife is clearly very ill.  Personal service can be distressing and unnecessary.  The husband’s solicitors approached this matter is an appropriate and conciliatory manner.  The wife’s solicitors had a clear responsibility to respond either by accepting or refusing to accept service.  They did not do so.  Their silence was at best unprofessional.

12. The objective underlying personal service is that the Respondent should be made aware of the proceedings.  This goes without saying.  Divorce goes to the question of status, as well as to finances and if relevant, arrangement for children.  However it is often the case that a divorce petition is served by post, or by deemed or substituted service.  In very rare cases service can be dispensed with.  (See s.14 Matrimonial Causes Rules, Cap 179).  In each case the court is concerned that the Respondent is made aware of the petition.

13. Mr Egerton for the husband points to s.14(6) MCR which states that

Where a copy of a petition has been sent to a party and no acknowledgment has been returned to the registry, the registrar, if satisfied by affidavit or otherwise that a party has nevertheless received the document, may direct that the document shall be deemed to have been duly served on him.

14. In this case it is clear that the wife had knowledge of the petition from at least the 7 November 2008.  Consequently I accept as Mr Egerton pointed out in his written submission that

It is completely artificial and disingenuous of the Wife to claim that she was not validly served until the 15 January 2009. 

15. With respect I agree.  Thus the directions for trial will not be set-aside on the basis that time for filing the Answer has not expired.

16. Turning now to the second issue namely whether in the alternative the wife should be given leave to file her Answer out of time. 

17. Mr Egerton has referred me to a number of cases on this point, including the Hong Kong Court of Appeal decision namely YSP and HFF, HA, CACV 235 of 2003 (unreported).  In that case the relevant principles were identified as follows:

13.    The following are the relevant principles gleaned from the authorities on how the court should deal with the delay and extension of time by a party in filing an answer to the petition.

1.    The starting point is that under the special procedure the registrar has certified that the petitioner has proved the contents of the petition and is entitled to a decree : Day v Day [1979]2 WLR 681.

2.    This being the position an application for extension of time to file the answer should be dealt with by analogy to the principle governing the former procedure of an application for re-hearing after decree nisi : Day v Day.

3.    This principle is that the application should have been refused unless there were “substantial grounds for the belief” that the decree would have been obtained “contrary to the justice of the case”: Owen v. Owen [1964] P.277.

4.    Each case has to be dealt with on its own facts : Rogers v Rogers [1974]1 WLR 709.

5.    Broadly speaking, the cases may be divided into two types.  This division is not exhaustive:

(1)   Where the applicant was not served at all and the proceedings took place without his knowledge.  He would get a re-hearing almost immediately.

(2)   The applicant knew of the proceedings but chose not to defend.  He then changed his mind again and asked for time.  He had to satisfy the court that it was more probable that the decree was obtained contrary to the justice of the case.

18. In this case the wife was aware of the proceedings, but chose not to file an Answer, even when on her own case, time for filing had expired.  Further even at the hearing no draft Answer was provided, neither was a holding Answer filed with the Court. 

19. So in this instance are there substantial grounds for believing that a decree nisi would be contrary to the justice of this case?  Again it seems to me that the answer to that question must be no. 

20. The wife says that it would be contrary to the interests of justice to allow the decree nisi to proceed.  Notwithstanding the fact that she is ill I cannot see how that can be so.  Any issues relating to finances can be dealt with, within the proceedings themselves.  If the wife thought it necessary should could also file an application under s 17A Matrimonial Causes Ordinance, Cap 179, which would have the effect of holding up the decree absolute until such time as the court was satisfied that appropriate financial provision had been made for her.  She says that she has a defence in that the divorce will result in grave financial and other hardship to her.  She has chosen not to particularize that potential defence.  She also states that there was no separation, but again has chosen not to particularize this claim other than as set out above.  I am also cognizant of the fact that

(i)   under the special procedure the crucial step to stop the progress from petition to registrar's certificate was the filing of an answer, it was not enough to give notice to defend in the acknowledgement of service;

(ii)    the registrar's certificate, once granted, was tantamount to the pronouncement of a decree nisi in an undefended suit under the old procedure, and could not be set aside unless it was shown that the decree had been obtained contrary to the justice of the case and that there was a reasonable chance of a successful defence. (See Mossa v Mossa (1988) 4 FLR 131)

21. It seems to me that there are very limited grounds for believing that a decree nisi would be contrary to the justice of this case.  Certainly I have not been taken to anything, which would lead me to believe that the wife had a reasonable chance of lodging a successful defence. I have also noted that the Registrar's certificate was issued and dated the 2 February 2009.

22. Consequently the wife's application will be dismissed.  Given the circumstances I can see no reason why the husband shouldn’t have his costs.  Costs will therefore follow the event in the normal way.  There shall be certificate for counsel.