L v. T

FCMC 8827/2000

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES NO. 8827 OF 2000

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J U D G M E N T

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1.  This is an application by the Respondent Wife (hereinafter called “the Wife”) to discharge a lump sum order granted against her after a trial on the Petitioner Husband (hereinafter called “the Husband”)’s application for ancillary relief.

2.  The actual hearing of the Wife’s application was conducted in Chinese but I decided to deliver this Judgment in English, mainly because references will be made to some English authorities and statutory provisions in this Judgment. After the handing down, I would direct that this Judgment be interpreted in Chinese to the daughter of the Husband who did attend the hearing, if she so requires.    

Brief History

3. The parties married in 1987.

4. This was their second marriage. Both parties have a number of children from their respective previous marriages and those children are now all grown up. As far as this marriage is concerned, there are no children.

5. On 5 September 2000, the Husband petitioned for divorce and applied for ancillary relief against the Wife.

6. A decree nisi was granted on 15 May 2001 which was made absolute on 10 June 2005.

7.  The trial on the Husband’s application for ancillary relief was heard before me and lasted for 18 days. On 31 August 2007, I granted a Judgment ordering the Wife to pay a lump sum of $1,400,000 to the Husband pursuant to s.4 of the Matrimonial Proceedings and Property Ordinance, Cap.192 (“MPPO”). That order was later amended to allow the Wife to pay the lump sum by instalments with interests (I shall hereinafter refer to this amended Order simply as “the AR Order”).

8.  It is not in dispute that the Wife had in fact paid a total sum of $1,425,238.50 (hereinafter called “the Judgment Sum”) under the AR Order to Messrs. Ivan Tang & Co., the then solicitors acting for the Husband at the trial but who has now dropped out of the picture just before this hearing.

9. By a letter dated 20 March 2008, Ivan Tang & Co. wrote to inform this Court that the Husband had in fact passed away in the City of Nanjing in the Mainland on 2 March 2007, i.e. in the middle of the 18-day trial. They claimed to have been kept in the dark because the contact person of the Husband, one Miss M. C. Cheng (“Miss Cheng”), had failed to inform them of such fact. Ivan Tang & Co. invited the Court to give further directions on how to dispose of the matter, especially the payment of the Judgment Sum by the Wife under the AR Order. I am given to understand that Ivan Tang & Co. has subsequently returned the Judgment Sum to the solicitors for the Wife who is now holding the said sum as stakeholder pending the order of this Court.

10. From the documents submitted, there was an affirmation from Miss Cheng dated 19 March 2008 stating that she deliberately lied to Ivan Tang & Co. that the Husband was still working and resting in Nanjing purely out of her own selfishness. She claimed the Husband owed her a sum of $850,000 and he promised to pay her back after winning this case against the Wife. That was why she deliberately concealed the death of the Husband from all the parties concerned, including Ivan Tang & Co.

11. May be I should take this opportunity to say a little bit more on how the death of the Husband could have escaped the attention of the Wife and this Court.

12. At the beginning of the trial when the Husband started to give his evidence, it was apparent that he had just gone through a major operation on his nasopharyngeal cancer and he was extremely weak in his physical conditions. Therefore, after giving his evidence (which lasted several days), he requested his further attendance to be excused. Facing with no objection from the Wife and his apparent weak physical conditions, I granted his request and allowed his Counsel to conduct the case in his absence.

13. During the ten odd days of trial that followed which centred mainly on the Wife’s case, I was informed by Counsel that the Husband had returned to Nanjing for recuperation. As Counsel was able to conduct the case according to his “instructions”, the case went on until conclusion without anybody realising the Husband had in fact passed away in the course of the trial.

14. After the receipt of Ivan Tang & Co.’s letter for directions, I first fixed a return day during which I further adjourned the matter to today for submissions.

15. In the mean time, Ivan Tang & Co. filed a Notice to Act In Person signed by a Miss Leung who is one of the Husband’s daughters from his previous marriage. Miss Leung obtained a Letters of Administration from the Court of First Instance in which she was appointed as the Administrator of the Husband’s estate.

16. As far as the locus standi of Miss Leung is concerned, I note that there is no application by her to conduct or continue the present proceedings under O.15 r.7(2) of the Rules of High Court. Despite that, I think it would only be fair to allow her to address the Court on the issue, if she so desires. When asked of her view on the matter, she did not say much except expressing her view that the Husband was entitled to the AR Order.

17. As far as the Wife is concerned, she has now engaged Mr. Chang as her counsel and asks for the following orders:

(1) The AR Order be discharged; or alternatively

(2) A permanent stay of execution of the AR Order.

Should the AR Order be discharged?

The Effect of the Husband’s Death

18. In order to consider whether the AR Order should be discharged, the first issue is to determine the effect of the Husband’s death on his application for ancillary relief in these proceedings.

19. According to Chapter 16.3 of Rayden and Jackson on Divorce and Family Matters, 18^th Edition, Vol 1(1), a party’s pending application for ancillary relief ends at his death: 

“16.3   There is no general rule that when one of the parties dies the divorce suit abates so that no further proceedings can be taken………..However, an application for ancillary relief which is determined by the criteria laid down in the MCA 1973, s.25 [which is similar to s.7 of our Matrimonial Proceedings and Property Ordinance, Cap. 192] predicate a living applicant and respondent, and where there is a pending application for ancillary relief and one of the parties dies, the court will not  have jurisdiction to continue to entertain the application as the suit will have abated.”

20. In D’Este v. D’Este [1973] 2 WLR 183, which was a case on the husband’s application to vary a post-nuptial settlement, Ormrod J was of the view that the whole of the matrimonial causes legislation was essentially a personal jurisdiction between parties to the marriage and therefore, the application abated at the death of the husband. He had the following to say at 187 D:

“In my judgment, the real answer to this application is this, that the whole of the matrimonial causes legislation, right back to 1857, is essentially a personal jurisdiction arising between parties to the marriage or the children to the marriage…… The fact that these applications abate by death derives, in my judgment, from the legislation which created the rights, if they are rightly called “rights”, and from no other source.”

21.  The learned Judge further said at 189 F-G that:

“I think I would only add this, that whether one has to look to the terms of section 17 of the Act of 1965 or section 4 of the Matrimonial Proceedings and Property Act 1970, the one thing that seems abundantly plain is that the statute contemplates both the parties to the marriage surviving..”

22.  A similar conclusion was reached in a more recent English Court of Appeal case of Harb v. King Fahd Bin Abdul Aziz [2006] 1 FLR 825 dealing with an application for reasonable maintenance under s.27(1) of the Matrimonial Causes Act 1973 which was drafted in the following terms:

“(1)  Either party to a marriage may apply to the court for an order under this section on the ground that the other party to the marriage (in this section referred to as the respondent)-

i.  being the husband, has wilfully neglected –

1.  to provide reasonable maintenance for the applicant, or

2.  to provide, or to make  a proper contribution towards, reasonable maintenance for any child of the family to  whom this section applies;

…….” (emphasis by underlining supplied)

23.  It was held by Thorpe LJ at para. 9 of the judgment that:

“9.   It is to be noted that the right of application is given to ‘either party to a marriage’ and that the right is against ‘the other party to the marriage’….. Thus, these provisions are expressly limited to applications made during the joint lives of the parties.”

24.  By a close reading of s.27, one would realise that it deals with an application by either party to the marriage against the other party to the marriage for reasonable maintenance. This is similar to our s.4 (1) MPPO which enables the court to grant, inter alias, the following orders:

“(c) an order that either party to the marriage shall pay to the other [party to the marriage] such lump sum or sums as may be so specified.”

25.  Therefore, it is my view that the reasoning and conclusion reached in Harb v. King Fahd Bin Abdul Aziz and D’Este v. D’Este apply equally to ourcase, namely that this court shall have jurisdiction to grant an order for ancillary relief only during the joint lives of the parties. Put it in another way, either party’s application for ancillary relief will have abated upon his/her death.

26. Further support to this conclusion can be found in the fact that an application for ancillary relief under ss. 3 to 6 of the MPPO requires the court to take into account all the circumstances of the case, including the matters mentioned in s.7 of the Ordinance. Those matters include, inter alias, the income, earning capacity, property and other financial resources the parties have or likely to have in the foreseeable future (s.7(1)(a)); the financial needs, obligations and responsibilities which each of the parties has or likely to have in the foreseeable future (s.7(1)(b)). Those are important considerations which have a future element in both of them. Upon either party’s death, it becomes impossible for the court to consider the future needs and earning capacity of the deceased party. Therefore, it lends strong support to the Wife’s contention that the basis on which the AR Order was made no longer exists upon the Husband’s death and so his application for ancillary relief should also end.   

27. Applying the above principles to the factual context of our case, when the Husband passed away on 2 March 2007, his application for ancillary relief abated at the same time. Therefore, this court, although without knowing the Husband’s death, had no jurisdiction to make the AR Order as it did on 31 August 2007.

28. The next issue is what we should do in view of the fact that the AR Order was made without jurisdiction. It is well established by authorities that an order made without jurisdiction is valid until set aside and that a party being affected is entitled, as of right, to have the order set aside upon his application (Munks v. Munks [1985] FLR 576). Therefore, it is my view that the AR Order made on 31 August 2007 should be set aside.

Permanent Stay of Execution

29. Counsel for the Wife has also made the alternative submission that a permanent stay of execution of the AR Order should be granted. Since the AR Order will be set aside in this case, further consideration of this submission becomes unnecessary.

Order

30. Based on the above reasons, I will make the following orders:

(1) The AR Order be set aside; and

(2) The Judgment Sum now held by the solicitors for the Wife as stakeholder be released to the Wife.

Costs

31. Costs should follow the event. As the Wife is successful in her application to have the AR Order set aside, she is entitled to the costs of this application, including all costs previously reserved. This is in the form of an order nisi which will be made absolute upon the expiry of 14 days from the handing down of this Judgment.