WONG LEUNG SEE LAWRENCE v. WONG LO LUNG KWAN

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JUDGMENT

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Si1ke, J.A.:

1. The Petitioner Husband - "the husband" - married the Respondent Wife - "the wife" on the 15th of July 1965. They had lived together for some five years before that. There were five children of the marriage: a daughter born in 1962 who is self-supporting and with whom we are not concerned; a son, Wang Hing, born on the 29th of May 1963 who is now undergoing higher education in the United States; twin sons, Wang Lung and Wang Tai, born on the 18th of May 1964 who are undergoing education in Hong Kong; and a son, Wang Fung, born on the 31st of July 1965.

2. The husband filed for divorce on the 29th of May 1984, the ground being irretrievable breakdown based on five years' separation under the provisions of s. 11A(1)(e) of the Matrimonial Causes Ordinance - "the Ordinance". The wife filed a s. 17A Notice on the 2nd of October 1984.  At the time of the petition, arrangements had been made that the husband pay to the wife a total sum of $7,500 per month, divided as to $2,000 maintenance for the wife and as to $5,500 maintenance for the children.

3. On the 16th of November 1984 the wife applied for Maintenance Pending Suit for herself and the children of the family. On the 2nd of January 1985 it was ordered that the application of the 16th of November 1984 be adjourned to a fixed date and it was further ordered that the husband pay the wife $7,500 by way of interim maintenance pending suit.

4. The decree nisi was pronounced by His Honour Judge McClelland on the 14th of February 1985 and it was at that time ordered that Wang Hing, Wang Tai and Wang Fung, without mention of Wang Lung,  remain in the custody of the wife until further order with reasonable access to the husband and that all questions of maintenance be adjourned to the 21st of May 1985. That order, somewhat surprisingly, contained the declaration that the Court was satisfied that the arrangements made for the welfare of the children of the family were satisfactory or "are the best that can be devised in the circumstances".

5. On the 28th of May 1985 the maintenance application came on for hearing before His Honour Judge Wane who, having considered the various affirmations filed by the parties and the evidence of both the wife and of the husband which included the cross-examination of both, made the following order:

6. The wife now appeals against those orders and asks for a variation of the lump sum order, the periodical payments order and, in particular, that there should be an order in respect of the twin sons who are not provided for in the Judge's order: she further asks that the provisions of s. 17A(2)(b) be given effect.

7. A matter came to light shortly after the commencement of the hearing of this Appeal which was as much a surprise to Miss Remedios, who appeared for the wife, as it was to the Court. The husband has been unrepresented throughout the whole proceedings and, having lived with and fathered children upon another lady, desired to regularize that union as soon as possible and wished to marry her. He, on the 1st June, made his application for the decree nisi to be made absolute to effect this.

8. In the usual manner, on its reverse, the Judicial Clerk of the Divorce Registry endorsed upon it a statement to the effect that there was no appeal; that the provisions of s. 18(1) of the Matrimonial Proceedings and Property Ordinance had been complied with and, in particular, that the provisions of s. 17A of the Ordinance did not apply. As a result the certificate making the decree nisi absolute was issued on the 29th of August 1985 stating that the decree nisi was as of the 1st of June 1985, made final and absolute.

9. They have since married.

10. At the date of the issue of the certificate, though not at the date of the application, the Notice of Appeal dated 25 July 1985 had already been filed. S. 17A did apply.

11. S. 17A(1) of the Matrimonial Causes Ordinance makes it mandatory for a Court to consider in the circumstances of a petition such as this the financial position of the wife as having regard to the divorce, it is likely to be after the death of the husband should the husband die before the wife. Further, subsection (3) of that section states that the Court shall not make absolute the decree of divorce if there is an application under s. 17A unless it is satisfied of two matters: first, that the Petitioner should not be required to make any financial provision for the Respondent or, second, that the financial provision made by the husband for the wife is reasonable and fair or the best that can be made in the circumstances. Subsection (4) of the section provides that the decree can be made absolute notwithstanding the previous subsections provided that first: it appears that there are circumstances that make it desirable that the decree should be made absolute without delay and second: that the Court has obtained a satisfactory undertaking from the husband that he will make such financial provision for the wife as a Court may approve. Neither of these matters seem to have been considered before the making of the decree absolute in this case.

12. In Dryden v. Dryden ⁽¹⁾, a case where the possibility arose that, by expediting the decree absolute the Judge had deprived the wife of her right to make application for financial provision upon divorce, Sir George Baker P. said at p.536 (and this is not, nor is it intended to be, a criticism of the Judge here):

13. While dealing with an aspect of the Divorce Reform Act 1969 nevertheless the words of the President are apposite here.

14. We are indebted to Miss Remedios for her research upon this difficult matter for it is necessary for us to consider whether the decree was void, thereby making the subsequent marriage a nullity, or whether it is voidable leaving this Court with a discretion as to whether or not it should void the decree. Our main concern is to ensure that no prejudice is caused to the wife by reason of the mistake that has been made.

15. It is only fair to say that the matter of s. 17A was not pressed before His Honour Judge Wane in the same manner as it has been before us.

16. It concentrates upon one particular and that is the wife's entitlement, if I should so consider it, to a share in the Widows and Orphans Pension Fund, for the husband is a Government servant, to which she would be entitled were she the wife upon the husband's death and as to what, if any, compensatory factor to reflect this should be included in any maintenance order.

17. Having considered the authorities placed before us by Miss Remedios, I have come to the conclusion that the decree absolute issued in these circumstances is voidable and not void (Wright v. Wright ⁽³⁾). I have also concluded that, in the light of all the circumstances of this case, it is not one in which I would exercise the discretion which lies in the Court to void it and for these reasons. The decree nisi was let go undefended, presumably on the basis of the financial arrangements mentioned in the petition. I do not think that there is now any prejudice to the wife and I am prepared to view this matter as an appeal from the decision of the Judge relating to the circumstances as they then stood which included the s. 17A application. Further the husband having, bona fide, obtained and acted upon the decree absolute I think that it would be unfair in the circumstances to void the marriage which he has now contracted. There are young children of that new family - the husband has, from his three marriages, a total of eleven children.

18. We have been taken in detail through the proceedings in the lower Court and in particular the cross-examination of the husband. Our attention has been drawn to the various amounts which appear in the bank accounts as coming into the credit of the husband every month in excess of his Government salary of some $20,000. Our attention has also been drawn to the substantial sum obtained from Government as a loan, $305,000, and to a mortgage of $277,000. The husband answers in cross-examination before Judge Wane were unclear and, in quite a number of cases, ambiguous in relation to these sums both as to their provenance and distribution. He has explained here that the loan which he got from Government was under the Home Ownership Scheme which bases itself upon the lump sum payment to which he would be entitled at the conclusion of his service; that he had various debts which he found it necessary to repay and for which purpose he used some of the loan and that, as a result, the mortgage was necessary to complete the purchase of the flat.  This explanation, coupled with the ambiguities in his evidence below, does not leave his financial circumstances in a very clear light.

19. The Judge considered all the figures placed before him including the Petitioner's net income of $24,215 per month which is his Government salary plus a further $1,600 he earns by giving private tuition; his monthly expenses including the maintenance paid to the wife and his loan repayments, and he found a surplus of some $6,215. He was aware that the husband had, with others, entered into a scheme to manufacture electronic parts in Sheizen and had formed a company for this purpose. On the face of it this company is now insolvent.   Some hundred thousand dollars, or possibly more, had been lost by the husband,

20. He concluded his consideration of the lump sum portion of the application thus:

21. The husband would appear to be a person who is capable of obtaining overdrafts without very much difficulty. I am not aware of any security having been pledged to secure them. They amount to some $98,000.  There remain the unexplained monies coming into his account monthly, and there is no suggestion that these are in any way unethical. In respect of the lump sum, The Trial Judge was doing the best he could in the vague state of the evidence before him. I am not prepared to disturb that item.  To do so would be to substitute my findings in place of those of the Trial Judge. He was entitled to come to the conclusion which he did.

22. While the husband has now the responsibilities of a new wife, and a comparatively young family, and while he has assured us that he would wish to see that all his children receive university education if only he could afford it - an assurance I accept - I think that there should be some monies available, however small they may be, for the maintenance and education of the twin sons. I bear in mind that the husband, while there remain undisclosed assets of indeterminate value, is not a man of great wealth and that he has a liability for costs in these proceedings. I would not seek to disturb the individual orders as to maintenance in their quantum but I think that the gross payment should be increased to $7,800 and believe that this is within the competence of the husband. The increase of $1,800 per month over the Judge's order of a total $6,000 is to be divided equally as between each of the twin sons, and is to be paid to them while they are still receiving education. The order in respect of the eldest son should be in similar terms - rather than one limited to 4 years from the date of the order. I appreciate the risk of the boys becoming "perpetual students". If this does arise then the husband would be entitled to seek a review of the orders I contemplate.

23. Wang Hing, as I have noted, is in the United States furthering his education.  This is an expensive business. While the sum of $2,000 in proportion to the sums alloted to the other children is high, nevertheless, I do not feel it proper to reduce that sum now and to risk the determination of Wang Hing's university career.  I would therefore allocate $2,000 per month to Wang Hing until such time he has completed his further education; $900 per month each to Wang Lung and Wang Tai until they have completed their education and $1,500 per month to Wang Fung until he has completed his education.

24. I have now to consider, in the light of the reality of a 25-year marriage to which the wife has contributed substantially by her outside earnings during the course of it, the lump sum payment to which the husband would be entitled upon his retirement from Government service and what if any provision should be made in relation to the Widows and Orphans Pension Fund entitlement.  The latter stood at about $33,000 per year at the time of the Home Ownership Loan.

25. The husband professed himself to be quite willing to give as much as he could, up to a half and even more of whatever sum he would actually receive upon his retirement, to the wife. But there is, of course, a catch.  For if it is correct that he has borrowed $305,000 on the basis of that being the sum which at the time of his borrowing would be due to him upon retirement, the eventual sum, whatever it may be and depending upon his continuing years of service and the total repayments, may not be of a very substantial nature. However the wife in my judgment is entitled to some proportion of the entitlement sum. Of this aspect of the matter, the Trial Judge said this:

With respect we do not think this to have been the right approach and that it would have been preferable had the Judge adopted that set out in Milne v. Milne ⁽⁴⁾ There a contingent order was made adopting the course taken in Priest v. Priest ⁽⁵⁾.   In Milne ⁽⁴⁾ the Court of Appeal, regarded the husband's pension scheme entitlements as part of the financial resources to which he was likely to be entitled "in the forseeable future".

26. But before coming to the actual quantum or proportion of that sum which I think should be made available to the wife it is necessary to consider the matter of the Widows and Orphans Pension Fund,

27. Once a woman ceases to be "the wife", and she does upon the decree nisi being made absolute, the Widows and Orphans Pension Fund Ordinance provides that ''the wife" should be considered as dead. The whole scheme is predicated on the wife living at the time of the husband's death as being the person entitled and such fund may not be levied against or attached.  There may well be cases in the future where it is necessary for this Court to consider the effect of the Widows and Orphans Pension Fund Ordinance upon a wife's entitlement to a share in that fund where a divorce petition is brought under the provisions of s. 11A(1)(e) which in turn brings into play s. 17A(2)(b). I do not think that this is an appropriate case. I would view the wife here as being adequately compensated by allocating to her a proportion of the final lump sum pension payments. In arriving at a figure or percentage in respect of this I bear in mind her prospective loss, given that she is alive at the time of the husband's death. She is aged 52 while the husband is aged 49 years. I am not unaware that the longevity of women is actuarilly greater than that of men. I think that the right percentage in all the circumstances of this case is one-third of that to which the husband will become entitled as a lump sum upon his departure from Government service. I would allow this appeal and vary the orders of the Trial Judge by substituting therefor the following order:

28. It was agreed in order to save further costs, indeed Miss Remedios welcomed the suggestion, that this judgment be handed down.

Order Nisi as to costs -

29. The husband do pay the costs of the wife to be taxed and the legally aided wife's costs be taxed under Legal Aid Regulations.

McMullin, V.-P.:

30. I agree with what has been said by Silke, J.A. both as to the reasons given and as to the order proposed by him.

Barker, J.A.:

31. I entirely agree with the judgment of Silke, J.A. which I have had the opportunity of reading in draft and there is nothing I wish to add.

(1)    [1973] 3 All E.R. (Fam. D. 526)

(2)    [1947] 2 All E.R. 53

(3)    [1976] 1 All E.R. (Fam. D. 796)

(4)    [1981] 2 F.L.R. 286

(5)    [1980] 1 F.L.R. 189