TWY v. CWC

FCDJ 4710 / 1991

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES

NUMBER 4710 OF 1991

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REASONS FOR DECISION

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INTRODUCTION

1.    This is the application of the Petitioner (“W”) under Rule 65 (2) of the Matrimonial Causes Rules for leave to make absolute the decree nisi of divorce pronounced on 21 February 1992, notwithstanding a long delay of 16 years 9 months.  Alternatively, if this Court were not to give her leave, she would seek leave to issue a fresh petition.

2.    At a direction hearing on 27 November 2008, the Respondent (“H”), acting in person, indicated that he would oppose W’s application and oppose a divorce, as a result of which this Court adjourned W’s application for argument, and gave leave for H to file an affirmation in opposition.

3. H failed to file any affirmation in opposition.  He, however, turned up at the substantive hearing fixed on 2 January 2009 and indicated that he was no longer opposing the divorce, but nevertheless he took issue with the allegations in W’s affirmation filed in support of her application (W’s Affirmation”).

4. As a result of H’s indication, at the hearing on 2 January 2009, this Court decided to give leave for W to issue a fresh divorce petition based on the parties’ separation for at least 2 years, but declined to give leave for the decree nisi pronounced on 21 February 1992 to be made absolute.  The reasons are now set out hereinafter.

BRIEF BACKGROUND

5. H and W were married on 18 November 1986 in Hong Kong.  They have a son, who was born on 14 April 1989, and is now 19 years of age.

6. On about 18 May 1991, W alleged that she was unable to tolerate H’s continuing unreasonable behaviour and moved out of the parties’ matrimonial home at OL Garden (“Matrimonial Home”).    On 27 August 1991, W issued a divorce petition based on H’s unreasonable behaviour and sought custody and various forms of ancillary relief, including a transfer of the Matrimonial Home.  A decree nisi was subsequently granted to her on 21 February 1992, and on the same day, she was granted interim custody of the son.  By an Order dated 15 April 1992, the question of ancillary relief was adjourned sine die with liberty to restore.

7. According to W’s Affirmation, in or about April 1992, not long after the decree nisi was granted, she and H reconciled and she moved back into the Matrimonial Home and the parties resumed cohabitation, and their relationship resumed for almost another 14 years.

8. In about February 2005, W alleged that H “drove” her out of the Matrimonial Home and for about 4 months, she lived with her mother.  W moved back to the Matrimonial Home in about July / August 2005 and the parties then continued living together again until about February 2006, when according to W, H tried again to “drive” her out.  She refused, but since February 2006, the parties have been occupying separate rooms, and did not have any meals together.  W started to pay for half of the rates and management fees of the Matrimonial Home. 

9. Thereafter, according to W, H has been repeatedly harassing her in order to “drive” her out of the Matrimonial Home.  I will not go into all the incidents alleged by W at this stage.  Suffice to say, eventually, after an incident on 21 October 2008, W said she was advised by the police to move out.

10. Thus, after the decree nisi was granted in February 1992, the parties resumed cohabitation from about April 1992 until about February 2006, a period of just 2 months short of 14 years.

THE LEGAL PRINCIPLES

11. Rule 65 of the Matrimonial Causes Rules sets out the procedures on an application by a spouse to make absolute a decree nisi pronounced in his/her favour.  Subject to the satisfaction of the matters listed out in Rule 65(2), the registrar shall make the decree absolute: Provided that if the notice is lodged more than 12 months after the decree nisi, the registrar may require the applicant to file an affidavit accounting for the delay and may make such order on the application as he thinks fit or refer the application to a judge. 

12. Further, Rule 65(3) sets out that where there are circumstances which ought to be brought to the notice of the court before a decree nisi is made absolute, an application for the decree to be made absolute shall be made to a judge. 

13. If more than one year has elapsed since the date of the decree nisi an explanation in writing must be lodged with the application to make the decree absolute giving the reason(s) for the delay and stating:

(a)     whether the parties have lived with each other since the date of the decree nisi and, if so, between what dates; and

 (b)  whether the applicant, being the wife, has given birth to any child since the date of the decree nisi, or being the husband has reason to believe that his wife has given birth to any child since that date.

 (see Rayden 18^th Ed Ch 11.15)

14. Such an application shall be heard in open court.  (Rule 65(3))

15. Mr. Fung, acting for W, has helpfully referred this Court to two relevant English cases, namely Court v Court (1982) 3 FLR 334 and Savage v Savage (1983) 4 FLR 126.

16. In the slightly earlier case of Court v Court, the wife obtained a decree nisi of divorce based on the husband’s unreasonable behaviour.  Her allegations were of substantial violence and threats of violence by the husband.  Soon after the decree nisi was pronounced in July 1979, the husband sought a reconciliation, and by October 1979, the wife yielded to the husband’s invitation to give the marriage another trial.  The reconciliation was not successful.  In December 1980, the husband left home, and in June 1981, the wife applied to have the decree nisi made absolute. 

17. In Court v Court, it was held, inter alia, that the application was unusual in that where a decree nisi was granted following allegations by a wife of substantial violence it would be most unlikely that she would willingly return to her husband; a resumption of cohabitation would cast a substantial doubt on the accuracy of the allegations on which the decree nisi was founded but in that case the judge, having seen the wife in the witness-box, believed her; he accepted that, in the circumstances, she did attempt a reconciliation notwithstanding previous ill-treatment and that she was ill-treated and threatened after she had returned to the husband to such an extent that she was too frightened to seek any outside help until the husband left in December 1980 when she acted promptly.  An amicus curiae appeared on behalf of the Queen’s Proctor. 

18. The wife’s application was granted.

19. In Savage v Savage, the decree nisi to the wife was based on the husband’s unreasonable behaviour in May 1977 but the husband continued to seek reconciliation.  By July 1977 the parties had reconciled and the cohabitation continued until February 1982.  The wife then applied for the decree nisi to be made absolute.  Very nearly 5 years had elapsed since the decree nisi.  The Queen’s Proctor had been appointed as amicus curiae.  The wife’s application was refused and the decree nisi was rescinded. 

20. In Savage v Savage, the court distinguished the earlier case of Court v Court and held that:

“(i)  in exercising its discretion to grant a decree absolute out of time the court should consider whether the decree nisi had been granted upon sound evidence and upon sound inferences drawn from such evidence; and , in so doing, the court could have regard to all the circumstances, including events after the decree nisi;

(ii) in that case, the petition had been based upon para.(b) of s. 1(2) of the 1973 Act, i.e. that the husband had behaved in such a way that the wife could not reasonably be expected to live with him; the final phrase of that paragraph (‘cannot reasonably be expected to lived with the respondent’) was an essential factor in deciding whether or not a decree nisi should be granted; the facts in this case showed that the petition had not presented a strong case, the period between the parting in March 1977 and the reconciliation (after the decree nisi) in June 1977 was very short (only 3 months), it was some 2 ½ years after the resumption of cohabitation before any substantial incidents were complained of but the cohabitation continued for a further year and the wife remained ready and willing for normal sexual relationships though the husband often refused, and it was 3 ½ years before the parties separated again (in February 1981); having regard to all these factors the inference drawn at the proceedings in 1977, under the special procedure, that the wife could not reasonably be expected to live with the husband, was a wrong inference;

(iii)  in this case, even though it was clear that at the present time the marriage had broken down irretrievably and the husband had behaved in such a way that the wife could not reasonably be expected to live with him, there was an element of public policy involved and the circumstances of the grant of the decree nisi and the long period of cohabitation thereafter led to the conclusion that the court, in exercising its discretion, should refuse to grant a decree absolute;

(iv) where there were substantial doubts as to the likely outcome of the grant of a decree absolute out of time, practitioners should consider applying for leave to file a second petition for hearing at the same time together with all the issues concerning the children and financial issues which may not have been agreed.”

THE PRESENT CASE

21. The petition was based on H’s unreasonable behaviour.  He was described as an ill tempered and violent man who frequently lost his temper for no apparent reasons, and during fits of temper he would destroy household items or throw objects at the wife, He was alleged to have falsely accused the wife of having an affair with another man causing her distress.  H was further described as being irresponsible with money, and that he had assaulted the wife on occasions too frequent to particularize but on average at least once a month.  The allegations were general in nature.  W left home in May 1991, after a marital cohabitation of about 4 ½ years, and she petitioned in August 1991, about 3 months later.  Then less than 2 months after decree nisi in February 1992, she returned to the Matrimonial Home and the parties reconciled.  She said she and H reconciled because she did not want their son to grow up under the care of a single parent. 

22. Although I did not hear any oral evidence from W, it appears from W’s Affirmation that the reconciliation lasted well until 2005 when she discovered that H had an extra-marital affair since when she alleged that he did not pay her any maintenance for household expenses.  Yet, the parties’ marital relationship apparently continued until about February 2005, when H allegedly drove W out of the Matrimonial Home.  She, however, returned again after about 4 months.

23. It was not until February 2006 that the parties started ‘living apart’.  The parties’ reconciliation and cohabitation was thus 2 months short of 14 years, which was very much longer than their cohabitation from marriage until the time W left home and issued her petition in 1991.

24. Having regard to all the circumstances, the inference drawn at the proceedings in 1982, under the special procedure, that W could not reasonably be expected to live with H would appear to be a wrong inference. 

25. Even though that at the present time the marriage has broken down irretrievably as the parties have now lived apart for over 2 years, there is an element of public policy involved and the long period of cohabitation after the granting of the decree nisi and the above circumstances led to this Court to decline to make the decree nisi absolute.  Instead, I gave leave to W to file a fresh petition based on the parties’ over two years’ separation.

26. It appears that the court only has power to rescind a decree nisi under the following circumstances:

(i)    Under s. 15C (1) of the MCO, if it is satisfied that the petitioner has misled the respondent about any matter which the respondent has taken into account in deciding to consent to the grant of the decree under section 11A 2(c);

(ii)  Under s. 15C (2) of the MCO, if it is satisfied by a party that he or she has been misled by the other party about any matter which he or she took into account when deciding to make the application for divorce under s. 11B(2)(a);

(iii)    By intervention of the Proctor under s. 16 of MCO;

(iv)   By any person (excluding a party to the proceedings other than the Proctor) under s. 17 of the MCO;

(v) By consent of the parties where a reconciliation has been effected under Rules 64 of MCR.

27. There appears to be an anomaly in that s. 16 of the Matrimonial Causes Ordinance (“MCO”) refers to intervention of the “Proctor”, whereas Rules 61 and 62 of the Matrimonial Causes Rules (“MCR”) refer to the “Secretary of Justice”. 

28. In both the cases of Court v Court and Savage v Savage, the Queen’s Proctor appeared.  The present application has not been drawn to the attention of either the Proctor under s. 16 of MCO or the Secretary of Justice under Rule 61 of MCR.  I therefore direct Mr Fung to send the relevant information and a copy of these Reasons to the Proctor or the Secretary of Justice under s. 16(1)(b) of the MCO to see whether he wishes to take any step thereunder.

29. If the decree nisi pronounced on 21 February 1992 is to be rescinded, such will have to be in open court.  I will fix an open court hearing at 9:30am on 16 February 2009, before the 1^st Appointment fixed for the new proceedings, to deal with the rescission of the decree nisi. 

30. So far as costs are concerned, they were reserved at the hearing.  I will make no order as to costs.  This is an order nisi, which shall be made absolute after 21 days.

31. Lastly, I will direct that a copy of these Reasons to be translated into Chinese as the Respondent acts in person and cannot read English.

Mr Fung of m/s Li Wong Lam & W. I. Cheung for Petitioner

Respondent acting in person

POSTCRIPT

On 16 February 2009, Mr. Mark Chan for the Proctor/Secretary of Justice appeared and at the invitation of this Court,  was acting as amicus curiae.  After hearing further submissions from Mr. Chan, and there being no objection from the Petitioner’s solicitor Mr. Fung and the Respondent’s solicitor Ms Tse, this Court is satisfied that , notwithstanding that there being no formal intervention by the Proctor/Secretary of Justice under s. 16 of the Matrimonial Causes Ordinance,  this Court does have jurisdiction under s. 10  and s. 17 of the Matrimonial Causes Ordinance to rescind the Decree Nisi.

Further, this Court has the inherent jurisdiction to control proceedings and such ability to control proceedings implied and justified the need to bring them to an end. “Where a decree nisi had been pronounced but, for whatever reason, it was clear that no application to make it absolute was likely to be made, then if the matter was brought to its attention the court had the ability to and should mitigate any stalemate which then arose.” (see S v S (rescission of decree nisi:pension sharing provision) [2002] 1 FLR 457).

Accordingly, the Decree Nisi pronounced on 21 February 1992 was rescinded with no order as to costs. The Petitioner’s own costs to be taxed under legal aid regulations.