RM v. SS also known as SSGR

FCMC 12447/2019

[2025] HKFC 28

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES NO. 12447 OF 2019

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J U D G M E N T

(Stay of Proceedings, Forum Non Conveniens, 

Bifurcation)

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This Application

1.  This is a hearing of the Respondent Wife’s (“W”) Summons dated 19 September 2023 for a stay of proceedings of the Petitioner Husband’s (“H”) Petition for divorce filed on 3 July 2018.  The decree absolute was pronounced on 28 April 2021, W asks for the ongoing proceedings to be bifurcated to take place in Germany. 

2.  H opposes W’s application.

Parties’ background

3.  Both H and W are of German origin.  W has a habitual residence in Germany.  In his Form E, H says he has no fixed place of abode; in subsequent affirmation, H says he uses his mother’s address in Germany but also stays at a friend’s residence in Spain, he appears to move between various European countries including Germany, Spain and Switzerland.  H was born in 1973, aged around 50 at the time of hearing. W was born in 1965 in Germany, she was aged 58 at the time of the hearing.  

4.  W married to her first husband in 1994, he had business interest in Hong Kong. With him they have four children, L born in April 2010, and N, T and F, triplets born in August 2011.  The triplets were in ill health after they were born, and continues to-date to require on-going need of medical care, they were respectively treated for some time in the US and Germany after their birth, but her first husband died in a plane crash in March 2012 even before he met the triplets.  At the time of trial, W lives with her children in Dusseldorf, Germany.

5.  Parties met in Hong Kong for the first time on 12 October 2012, the chronology with the W’s submission states that this was on 12-13 October 2012.  It was a whirlwind romance.  They then met for the second time in Cologne Germany on 17-18 November 2012, and a third time in Berlin Germany on 30 November to 1 December 2012.  H and his friend visited W at her LV, US home on 20 December 2012, and proposed to her on 25 December 2012.  The parties entered into a Pre-Nuptial Agreement (“PNA”) on 28 December 2012, which was a standard form German agreement W found online, this was witnessed by a US notary public; and the parties married on 31 December 2012.  This was less than three months since the parties met.

6.  Less than a year after the marriage, H and W separated on 2 October 2013, W saying that she has seen H’s “true colours”.

7.  On 15 October 2013, W filed for annulment of the marriage in LV, US.  This was withdrawn when H requested a pay out of €1,250,000 which W refused.

8.  In February 2014, W filed her divorce petition in Germany.

9.  In June 2014, W was persuaded to reconcile with H.  W left HK and shortly after, they lived between Germany and Spain until W relocated to Dusseldorf at the end of 2014.  He moved into the W’s residence in Dusseldorf Germany in January 2015.  This reconciliation was short-lived, the parties fell out again in April 2018 and H moved out from the Dusseldorf home that month.

10.  H disputes the events surrounding the signing of the PNA, in particular he disputes W’s evidence in this respect and that of the notary public who was present when the parties signed the PNA.

History of Proceedings in Hong Kong

11.  Three months after leaving the residence in Dusseldorf German, H filed for divorce in Hong Kong on 3 July 2018, W filed her Form 4 on 6 August 2018.

12.  W says she did initially want to contest jurisdiction but eventually decided not to incur legal expenses for that argument; she says she was hoping for a quick resolution to the matter with the PNA.  W served her Answer and Cross Petition on 25 November 2018, which she says was before she was aware of H’s various applications in Germany (elaborated below).

13.  Parties exchanged their Form Es in May 2019, and H says W’s version was very inadequate.  H filed his Reply to Answer and Cross Petition on 31 May 2019.

14.  On 13 September 2019, Leave was given for a fresh petition to be issued on the basis of one year separation with consent, which was filed on 18 October 2019. 

15.  Decree Nisi was pronounced on 18 August 2020.

16.  On 31 December 2020, W, as respondent, applied for Decree Nisi to be made absolute, this application was heard in March 2021. On 23 March 2021, HHJ Melloy made an Unless Order that if H fails to file his evidence in opposition before 20 April 2021, there shall be an Order in terms of W’s application.  H did not file anything.  W then filed her Notice for Application for Decree Nisi to be made absolute, and Decree Absolute was pronounced on 28 April 2021.

W’s Crossley Application

17.  W filed her Crossley Application on 14 August 2019.

18.  On 13 September 2019, W’s Crossley Application was set down for trial on 16 June 2020.

19.  H filed his opposition to the W’s Crossley Application on 31 January 2020; W filed her reply on 17 April 2020.  W also filed affirmation from her two witnesses in April 2020. 

20.  At the PTR for the Crossley trial on 2 June 2020, the trial date set down on 16 June 2020 was vacated by HHJ Melloy. W says H made a last-minute application to attend trial via VCF, which ended up derailing the trial, HHJ Melloy then directed a second PTR to take place on 3 September 2020, which was vacated by consent. In March 2021, HHJ Melloy directed another PTR date for the Crossley to be set down on 8 July 2021; after that PTR, HHJ Melloy offered 7-10 September 2021 as trial dates but W’s counsel was not available.  At the end of July 2021, HHJ Melloy then directed parties to set down the trial after June 2022.  This did not happen.

21.  On 25 September 2023, at the call over hearing of the Stay application, I ordered that the Crossley Application be adjourned sine die with liberty to restore.

Current Stay Proceedings

22.  W’s Summons was filed on 19 September 2023.  At the call over hearing on 25 September 2023, trial date of 8 March 2024 was set down.  In compliance with the Court Order, H files his opposition on 20 November 2023, and W filed her reply on 8 Jan 2024.

History of Proceedings in Germany

23.  W filed her divorce petition in Germany in February 2014.

24.  The Court is informed that H has made 4 applications in the Family Court of Dusseldorf on 15 October 2018, adopting the nomenclature in the chronology attached to the W’s submission (of which information are in part taken from W’s German lawyers listing out the processes of various German proceedings), there are:

a.  German Maintenance Application

i.      H requested monthly maintenance of €20,000 and arrears in February 2019, in July 2019 this became €27,230 and arrears. W filed submissions on 30 July 2020, revealing H’s financial information which he did not disclose in his Form E.

ii.     On 6 January 2021, H applied for a stay of these proceedings pending HK Court’s decision on jurisdiction.  This hearing scheduled on 27 January 2021 was cancelled due to COVID.

iii.    In May 2021, realizing that the pronouncement of DA has put an end to his maintenance application, he asks the Court to continue with the arrears in the maintenance proceedings.

iv.    Between 21-22 September 2021, further submission were exchanged, from the W regarding H’s lack of disclosure, and H on-going ask to claim arrears, which he says was €635,680 by then.  In November 2021, W made submission on H’s ongoing lack of disclosure.

v.     On 8 November 2021, W submission to Court that H had still not disclosed his income though he was the CEO of multiple businesses

vi.    On 4 May 2022, Court hearing on this application, and ordered further financial disclosure from H, which was submitted by him on 31 May 2022.

vii.    On 18 May 2022, W made submissions to court regarding H’s crypto investments. H wrote letter to Court proposing W to pay him €2,500,000 in settlement of the German Maintenance Application and German Disclosure Application and HK proceeding. On 14 June 2022, W refused this proposition but counteroffer to waive the repayment of €500,000 loan H owes her (which he denies).

viii.  On 29 June 2022, the Dusseldorf Family Court dismissed H application in full on merits.  Having found he has failed to disclose his income, was involved in various businesses and significant crypto assets, concluded that H had not demonstrated a financial need for maintenance payments from W; and ordered H to pay 100% of the costs of the proceedings.  On a side note, H’s German lawyer says that the H’s application was dismissed “on the ground the court was not able to obtain a reliable picture of [H’s] income and assets in the period in question and therefore had no basis to reasonably base a maintenance calculation on this”.

ix.  On 8 August 2022, H filed an Appeal, and further on 29 September 2022, asked the Court to deal with €635,680 arrears.  On 31 October 2022, W made submission to ask the Court of Appeal to reject the appeal, which it did on 31 November 2022.

b.  German Disclosure Application

i.      On 6 January 2021, H applied for a stay of these proceedings pending outcome of the HK Court’s decision on ancillary relief. This hearing scheduled on 27 January 2021 was cancelled due to COVID.

ii.     On 25 April 2022, W made submissions to Court against H’s petition to stay the proceedings.

iii.    On 4 May 2022 Court hearing on this application ordered further financial disclosure from H.

iv.    On 25 May 2022, Court ordered these proceedings be stayed pending outcome of the Hong Kong proceedings.   This stay was granted also on the basis that the Court requires clarification of whether any decision made by the Hong Kong Court is recognisable in German.

c.  German Belongings Application

i.      Originally for the surrender of his belongings, this was amended on 20 August 2020 to only request W to hand over his marital ring.

ii.     In October 2020, W made submission to dismiss H’s application as she no longer has the ring. 

iii.    In December 2020, she filed a counterclaim for a repayment of loan of €500,000 due from H.

iv.    In April 2021, H withdrew his application for return of the ring, and submitted to court to dismiss W’s counterclaim.

v.     In July 2021, W files further submission on the admissibility of her counterclaim.

vi.    On 5 May 2022, the German Court states that it does not consider there was a duplicity of proceedings in HK and ordered H to reply to W’s counterclaim.

vii.   On 18 November 2022, W produced a number of documents evidencing the loan she made to H and her demand for repayment.  H made submissions on 30 January 2023 for Court to dismiss W’s arguments.

viii.  On 24 February 2023, the German Court heard the substantive arguments on this case.

ix.    On 17 March 2023, W made submission to the Court seeking an expert opinion in Hong Kong law regarding the admissibility of the repayment claim outside the Family Court, alternatively staying the case until a financial order is made in Hong Kong.   

x.     On 22 March 2023, the German Court informed the parties of their preliminary opinion to admit the case.

xi.    On 28 July 2023, H was ordered by the Court to repay the amount of €500,000 plus interest to W.  

xii.   On 30 August 2023, H appeals this decision.

d.  German Matrimonial Home Application

H withdrew this application for use of the matrimonial home on 24 October 2019

e.  On 28 June 2019, H filed his German Emergency Maintenance Application.  This was dismissed in October 2019 on the grounds of “double pendency” in Hong Kong.

Timeline Schedule

25.  I refer to the Schedule attached hereto in which I set out the timeline showing events taking place in HK, LV USA, and of the H’s 5 legal proceedings in Germany.  The following observations are made:

a.  From the time of the parties’ reconciliation in mid-2014 to early 2018, parties were living in Germany.  Yet within three months after H left their German residence, H initiated divorce proceedings in HK.

b.  Within 3 months after his HK divorce petition, H initiated 4 of his 5 proceedings in Germany for maintenance, return of belongings, disclosure and return to matrimonial home.

c.  While dealing with the Petition in HK and giving time to W to consider the jurisdiction issue, H was engaging in making demands under his German maintenance application.

d.  One month after his emergency maintenance application was dismissed and he withdrew his matrimonial home application, H filed his fresh Petition in HK based on one-year separation with consent in November 2019.

e.  Parties were engaged in exchange of evidence and setting down dates for W’s Crossley Application between January 2020 and July 2021

f.  After HHJ Melloy’s July 2021 Order, the proceedings focus shift to Germany and both parties were actively involved with 3 of the H’s applications of maintenance, disclosure and return of belongs (and loan), this went on until July 2023.  Nothing happened in HK during this time.

g.  Having involved in the German proceedings for more than 2 years and resulting in the German proceedings being brought to an end (Maintenance), pending appeal (Belongings / loan) or stayed (Disclosure), W then turned to HK to make her stay / bifurcation application in September 2023.  

H’s case

26.  H opposes W’s stay and bifurcation application.

27.  H also disputes the validity of the PNA he signed.

28.  H complains W has caused a lot of delay at various times of the proceedings, and has taken advantage of the HK proceedings to prevent him from moving ahead with his German proceedings.  And having done that, she now asks for a stay in the HK proceedings, and H has to start afresh with new applications in Germany, incurring more legal costs. 

29.  H then says that there is not much happening in the German proceedings, and that “none of the application in Germany were duplication of any application in Hong Kong.”  He says there are no more proceedings in Germany at this point. 

30.  H says W has submitted to jurisdiction in HK, even as late as the time when she consented to H’s fresh Petition in HK.  And that nothing has changed from 2018 when she first submitted to HK jurisdiction, and W has nothing to show that Germany is distinctly a more appropriate jurisdiction than HK.

W’s Case

31.  W accepts that HK has jurisdiction but says that that events have transpired such that Germany is now a distinctly more appropriate forum to deal with the parties’ financial matters.

32.  In this regard, W says that when very little happened in terms of financial application in HK, there were several hearings and adjudication made in Germany during the relevant time.

33.  W relies on the German SJE opinion which states that German has the international jurisdiction required to deal with this matter on the basis of her habitual residence in Germany.

34.  W accuses H of forum shopping.  In this she says, H has chosen to issue divorce proceedings in HK as “clearly he believes it will be more advantageous to him than Germany due to the existence of a German PNA”; but he has also numerous applications seeking financial relief from the German Courts, which he could have sought from the HK Court.  H says W is wrong in saying that he has “instigated” the proceedings and actively pursued them, W disagrees.

35.  W’s hope for a speedy divorce based on the PNA was thwarted when H takes the position to contest the PNA.

Evidence before Court

36.  For this application, W has filed her 5^th and 6^th affirmation, and H his 3^rd affirmation.  

37.  They each have their own German lawyer deposing to the Germany proceedings, W’s lawyer’s affirmation dated 19 September 2023, H’s lawyer in opposition filed under his HK lawyer’s affirmation on 20 November 2023 (subsequently filed on 28 February 2024), and W’s lawyer in reply on 4 January 2024.  It is worth mentioning here that H’s German lawyer attached two documents as exhibits to her affirmation in German language, with no English translation, which was unhelpful.

SJE’s Opinion

38.  An SJE report was called for in September 2023 to give evidence on jurisdiction issues, this was dated 2 February 2024.  The lawyer opines on the following issues:

a.  Whether spouse in Germany may seek financial relief against the other spouse if Divorce Decree Absolute is pronounced in HK and the ancillary relief proceedings in HK are stayed

b.  The general law on financial relief in Germany, namely what sort of relief or order a spouse may seek in Germany

c.  The requirements under Germany law for valid execution of a pre-nuptial agreement

d.  If valid, would the prenuptial agreement be strictly enforced by the German Court

e.  Does the German Court have discretion to depart from the terms of the pre-nuptial agreement, e.g. to enforce some terms and not others, whether due to factors such as fairness.

And further from the H (W says already covered under c above):

f.  Whether there are any rules under German law governing the validity of a prenuptial agreement, including but not limited to whether financial disclosures prior to the execution or independent legal advice as to the implications was received by a party prior to execution of the pre-nuptial agreement.

39.  The relevant findings with regard to the above questions are as follows.

40.  The SJE opines that the German Court would have international jurisdiction in the present case as W has her habitual residence / domicile in Germany.  This is regardless of the fact that the divorce has been finalized in HK and the Decree Absolute pronounced, H is entitled to apply for “isolated property proceedings”.

41.  With regard to the relief a spouse can claim in Germany, this includes the equivalent of our MPS, post marital maintenance, equalisation of accrued gains claim, and / or entitlement of pension equalisation.  

42.  The SJE raised an issue of recognition of the foreign judgment in her opinion, citing the premise that there is no international treaty between Germany and the People’s Republic of China or Hong Kong :

“A stay of proceedings … may also be considered if there are doubts as to the recognisability of the expected foreign judgment. As there is no corresponding international treaty between the Federal Republic of Germany and the People's Republic of China or Hong Kong, the provisions of sections 108 et seq of the Family Procedure Act … apply to the recognition and enforceability of maintenance decision from non-EU Member States which are also not party to the international treaties. With regard to the question of recognition, distinction must be made as to whether the decision in question comes from a state in which reciprocity is guaranteed or from a state in which reciprocity is not guaranteed. Reciprocity is guaranteed if the recognition and enforcement of a corresponding German judgment in the issuing state (in the present case the People’s Republic of China or Hong Kong) does not encounter significantly greater difficulties than the recognition and enforcement of the judgment to be recognized in Germany.

…

if reciprocity is not ensured, there is an obstacle to the recognition of the foreign maintenance decision …”

43.  I was not drawn to any further analysis on this issue, suffice to say that this remains an open question; and the German Court has ordered a stay of the H’s German Disclosure Application on this basis.

44.  With regard to the PNA, the opinion says that the marriage contract “must be concluded in the simultaneous presence of both parties for notarisation by a notary”.

45.  Furthermore, a marriage contract may be null and void on grounds of an offence against public morality.

“According to the interpretation of the Federal Court of Justice, it is not possible to give a general and conclusive answer for all conceivable cases as to the conditions under which marriage contracts are invalid on the grounds of breach of morality and in which cases the invocation of the provision of the marriage contract is inadmissible on the grounds of abuse of rights.

What is required is an overall consideration of the agreement entered into, the reasons and circumstances of its conclusion and the intended and actual organization of marital life.”

46.  With regard to questions d and e above, it is best to quote directly from the SJE opinion:

“The legal regulation of the consequences of divorce is based on the idea that marriage related disadvantages suffered by one spouse because of the marriage or the upbringing of children are compensated for by the spouse’s own career advancement and the accumulation of corresponding pension provisions or assets after divorce. Whether a matrimonial agreement regulating the consequences of divorce is compatible with this fundamental principle must be examined in each individual case, taking into account the basis of the agreement and the expectations of the spouses at the time of its conclusion, as well as the actual organization of their marital life.

…

The more directly the marriage contract of the spouses interferes with the core area of the law on the consequences of divorce by waiving statutory provisions, the greater the burden on one spouse and the more closely the interests of the other spouse must be examined.

If the validity of marriage contract is in dispute, the court must first subject the contract to a so-called effectiveness test and examine whether, even at the time of its conclusion, the agreement obviously leads to such a one sided distribution of burdens in the event of a divorce that it must be refused recognition by the legal system as a violation of morality - irrespective of the future development of the spouses and their living conditions.

…

The test to be applied under this provision requires an overall assessment of the circumstances. In particular, the materiality of the disadvantage suffered by a spouse in the case of a waiver of maintenance, equalisation of gains and equalisation of pension cannot be denied merely because each waiver is not more serious in itself.

…

Rather, recognition may be refused in an overall assessment of the marriage contract, with regards to its overall character. The overall assessment must take into account the individual income and financial circumstances of the spouses, the planned or already realized structure of the marriage and the effects of the marriage contract on the spouses and the children.”

47.  The SJE opinion is illuminating with regard to the breadth of the analysis a German Court will conduct in assessing the validity of a marriage contract, and the number of factors which they will need to take into account to ensure fairness to the spouses.

Legal Principles with regard to Stay of Proceedings and Bifurcation

48.  It is not in dispute that the Family Court has the power to stay any proceedings where it thinks fit to do so; it can be done at any stage of the proceedings, and "subject to the Court’s discretion in the interest of justice”.

49.  W’s submission contains a number case law on bifurcation, citing that it is possible to bifurcate at any stage of the proceedings:  W v W (Financial Relief: Appropriate Forum) [1997] 1 FLR 257; D v P (Forum Convenient) [1982] 2 FLR 25; Krenge v Krenge [1999] 1 FLR 969 and in HK the case, of SMM v TWM FCMC 11230/ 2008 (Unreported Judgment dated 17 May 2011).

50.  Further Submission were made at the oral hearing. Reference was made to W v W as to a stay application which was made late in the proceedings, and upon which W relies to submit that there is another jurisdiction today that is a more appropriate venue to hear the ongoing aspects of this case.  And the case of D v P where the Court allows proceedings to be bifurcated from the UK proceedings in which H obtained his divorce, whereupon he went to Italy for onward proceedings as there was an Italian agreement.  And the Hong Kong case of SMM v TWM, where the financial proceedings in HK were well underway to the stage of a MPS Order having been made, and on the way to FDR, the Court nevertheless ordered bifurcation.  And this is despite that W has stated that time and money been spent and wasted on the financial disclosure in HK.  This is HHJ Melloy’s comment to this point:

“With respect I do not agree. The updated financial disclosure was completed in November. Whether the matter is dealt with in Hong Kong or Middlesex some work is likely to be necessary before a trial can be contemplated. The financial disclosure so far will therefore form a useful base for the parties and their legal advisors whether in Hong Kong or Middlesex.” (emphasis added)

51.  Lastly W refers to the case of VDS v CRF [2012] 2 HKC 368 involving the jurisdiction of Hong Kong and France, and in which the Court ordered bifurcation after the decree nisi but before it has been made absolute.

Legal Principles on Forum Non Conveniens

52.  W has the onus of proofing her claim that Germany is the more appropriate forum.

53.  I refer to my decision in CTW v SGW [2022] HKEC 4362, which quoted the CFI’s decision of YJH v LKHM [2019] HKFLR 418, where Au Yeung J at §43 summarized the principles of forum non conveniens in SPH v SA (2014) 17 HKCFAR 364 at §51  Therein, the Court of Appeal applies Spiliada Maritime Corporation v Cansulex Limited [1988] 1 AC 460 and 477 and Louvet v Louvet [1990] 1 HKLR 670,674-675:

“1. The single question to be decided is whether there is some other available forum, having competent jurisdiction, which is the appropriate forum for the trial of an action ie in which the action may be tried more suitably for the interests of all the parties and the ends of justice?

2. In order to answer this question, the applicant for the stay has to establish that, first, Hong Kong is not the natural or appropriate forum (‘appropriate’ in this context means the forum has the most real and substantial connection with the action) and second, there is another available forum which is clearly and distinctly more appropriate than Hong Kong. Failure by the applicant to establish these two matters at this stage is fatal.

3. If the applicant is able to establish both of these two matters, then the plaintiff in the Hong Kong proceedings has to show that he will be deprived of a legitimate personal or juridical advantage if the action is tried in a forum other than Hong Kong.

4.   If the plaintiff is able to establish this, the court will have to balance the advantages of the alternative forum with the disadvantages that the plaintiff may suffer. Deprivation of the one or more personal advantages will not necessarily be fatal to the applicant for the stay if he is able to establish to the court’s satisfaction that substantial justice will be done in the available appropriate forum.”

44. For proper assessment, it is not enough to load up factors which connect a case or the parties to any particular jurisdiction.  The court is required to focus on the appropriateness of a forum from the point of view of the trial of the action: Rambas Marketing Co LLC v Chow Kam Fai David [2001] 3 HKC 250, at 255B-E, Recorder Ma SC as he then was.

…

46. The court has to consider a basket of other factors.  In V v M (A Child) (Stranding: Forum Conveniens: Anti-Suit Injunction) [2019] 4 WLR 38, Williams J stated at §35(iii):

“In assessing the appropriateness of each forum, the court must discern the forum with which the case has the more real and substantial connection in terms of convenience, expense and availability of witnesses. In evaluating this limb the following will be relevant; (a) … parties’ connections with the competing forums in particular the jurisdictional foundation; (b) the relative ability of each forum to determine the issues including the availability of investigating and reporting systems. In practice judges will be reluctant to assume that facilities for a fair trial are not available in the court of another jurisdiction but this may have to give way to the evidence in any particular case; (c) the availability of witnesses and the convenience and expense to the parties of attending and participating in the hearing; (d) the availability of legal representation; (e) any earlier agreement as to where disputes should be litigated; (f) the stage any proceedings have reached in either jurisdiction and the likely date of the substantive hearing; (g) principles of international comity, in so far as they are relevant to the particular situation in the case in question. However public interest or public policy considerations not related to the private interests of the parties and the ends of justice in the particular case have no bearing on the decision which the court has to make; (h) it has also been held that it is relevant to consider the prospects of success of the applications.” (emphasis added)

….

53. Ultimately, whether to stay or refuse a stay depends on whether the defendant can establish that to refuse a stay would cause injustice.  In MacShannon v Rochware Glass Ltd [1978] AC 795, Lord Salmon at 818-819 of his judgment stated as follows:

“In an action brought in England when its natural forum is Scotland, I consider the question as to whether it should be stayed depends upon whether the defendants can establish that to refuse a stay would produce injustice. Clearly if the trial of the action in England would afford the Scottish plaintiff no real advantage and would be substantially more expensive and inconvenient than if it were tried in Scotland, it would be unjust to refuse a stay. If, on the other hand, a trial in England would offer the plaintiff some real personal advantage, e.g., if he had come to live in England, a balance would have to be struck and the court might in its discretion consider that justice demanded that the trial should be allowed to proceed in England (see e.g. Devine v. Cementation Co. Ltd. [1963] N.I. 65). To my mind, the real test of stay or no stay depends upon what the court in its discretion considers that justice demands. I prefer this test to the test of whether the plaintiff has behaved ‘vexatiously’ or ‘oppressively’ on a so-called liberal interpretation of these words.” (emphasis added)

54.  Taking into account these principles, I will proceed to apply to the facts of this case.

Discussion

55.  In order for the court to discern the forum with which the case has the more real and substantial connection in terms of convenience, expense and availability of witnesses, I shall start with applying the basket of factors from the abovementioned case of V v M.

Parties’ connection with the competing forum

56.  The extent of the HK connections are as follows:

a.  They first met in HK over a two-day period.

b.  W’s deceased first husband has business interest here, and she would travel to HK then.  When her husband passed away, she became a beneficiary of a trust set up by him which owns his business, including assets in HK.

c.  There is a real property in Hong Kong in her name.  

d.  When parties were married, they lived at a rental property here, not at the property owned by W.

e.  When the parties separated in late 2013, H left HK for Germany.

f.  W left Hong Kong in July 2014 and has not resided here since then.  She did travel here occasionally to handle the business her deceased husband left behind, this ended in 2019.  And she has not been back since.

g.  W has Hong Kong permanent residence status which she obtained in March 2014.

57.  In the H’s affirmation in this application, H declares a service apartment address in Wanchai and an address in Spain as his residence.  Inside this affirmation, H says he would stay at his mother’s address in Germany, and has a temporary residence in Spain at a friend’s place.  He also says he has no fixed abode except for the W’s property in HK, which he then confirms that he has been excluded therefrom.

58.  W has no assets in HK except her beneficial interest in a Trust set up by her deceased husband which holds, inter alia, a HK company. This company is a holding company for the German business, which underwent liquidation and insolvency proceedings resulting in a HK Court approved Scheme of Administration in December 2021. After this, W’s late husband’s Trust which holds the business interest is now reduced to a mere 5% of the group companies, and allegedly to be in net liabilities financial position.

59.  As for her other assets, there are two properties in HK and Spain respectively to which H has laid claims under his German Matrimonial Home proceedings.  There are two companies which W says have been deregistered, and one of minimum value.  According to her counsel’s submission, she has $3.8M as of September 2023 compared to $23M in various bank accounts from her May 2019 Form E, and her liquid assets have been further depleted for legal costs. 

60.  H’s Form E dated January 2019 reveals H has no assets in HK except for a joint account with W containing around $4,000.

61.  Parties’ German connection:

a.  Parties are both German nationals.

b.  W resides with her children in Dusseldorf Germany.

c.  W says H has a base in Germany, while also moving between, Switzerland, Grance and Spain.

d.  W also works in Germany.

e.  H has business in various part of Europe, including Germany companies.

62.  H’s counsel submits that H does not live in Germany, but instead in Spain and Switzerland.

63.  Very little of the parties’ relationship was conducted in Hong Kong even when they were married; at best, this was for 8 months.  H has never even worked here.  Both parties’ bases are now clearly in Europe with W’s habitual residence in Germany.

64.  H cites other factors – the fact they met in HK and commenced married life here, and she is the beneficiary of a Trust of her late husband’s estate which holds HK assets and HK company.  I find none of these factors substantially relevant.  The fact that there are assets in HK is neither here nor there as Germany has international jurisdiction, in the same way Hong Kong has jurisdiction of parties’ overseas assets.

The relative ability of each forum to determine the issues including the availability of investigating and reporting systems

65.  It is not disputed that this Court can proceed with the ancillary relief matters between the parties.  

66.  From the SJE Report, it is also clear that the German Court will have jurisdiction over the financial aspect of this matter if the HK proceedings are stayed.  It is evident from the Schedule that they have dealt with the matter since H launched his various applications in 2018, including maintenance, belongings and disclosure of financial information; and the German Court is fully aware that there are ongoing proceedings in HK.

The availability of witnesses and the convenience and expense to the parties of attending and participating in the hearing

67.  There should primarily be only two witnesses for this case, H and W.

68.  For the PNA, W has a further two witnesses, one was the notary public who witnessed the signing of the PNA; the other one was a Mr RH, who was the Finance Director of W’s late husband’s business, and his evidence was brought in to contest the H’s case that he was allegedly involved with it. 

69.  None of these witnesses resides in HK except for Mr RH, and his evidence is only to contest around 18 paragraphs in one of the H’s affidavits. Should proceedings take place in HK, the substantive witnesses need to fly in from overseas.  VCF hearing in the Family Court is not an automatic rubberstamp application, especially where oral evidence is important in the determination of a case.  A trial in HK necessitates both parties to fly long distance while Germany should be a more convenient location to both H and W.

70.  A lot of documents are in the German language, this includes the PNA and more likely than not, information relating to the parties’ financial assets, these will need to be translated for these proceedings if it continues in Hong Kong.  I have not been informed whether translation is required for the oral evidence of either of the witnesses if proceedings were to take place in HK.  Having the case be heard in Germany is clearly an appropriate and a more time and costs saving exercise.

The availability of legal representation

71.  As both parties have retained legal representation in Germany and in Hong Kong, there is no issue on this point.

Any earlier agreement as to where disputes should be litigated

72.  None exist.

The stage any proceedings have reached in either jurisdiction and the likely date of the substantive hearing

73.  Reference is made to the Schedule and the above paragraphs under History of Proceedings in Germany.  

74.  Even with the maintenance applications having come to a close, including H’s unsuccessful appeal in the maintenance hearing, H and W can still proceed with new application for “post marital maintenance” or other financial relief. According to the W’s German lawyer, there has been prior financial information already disclosed which needs updating, but at least parties are not starting from scratch, and information filed will be a “useful base” for further discovery to be conducted.  Furthermore, there are already German Courts which have seize of the matter beforehand.

75.  According to the W’s German lawyer, discovery proceedings can be resumed.

76.  In looking at this issue of connection.  I cannot see Hong Kong being the more appropriate venue as compared to Germany.  The Hong Kong proceedings on each matter to date is quite standalone: the suit, the Crossley which has been put on hold, and this stay application.  Clearly Germany has been more involved with the parties’ finances, and is evidently the next steps in these proceedings and H’s intention to pursue as represented by his counsel.  This is a fact scenario in which a bifurcation is appropriate.

Dealing with the H’s arguments
A. Delay

77.  A substantive part of H’s written submission and oral submission in Court was devoted to this particular accusation by H of W. H accuses W of delaying matters, and refers to the numerous times that W has sought time extensions for filing of documents.

78.  H says W has repeatedly sought extension to file her contention on jurisdiction, this took place between August to October 2018, there was at least one consent Order made for the extension on time on this issue.  Then H complains that she has delayed substantially the filing of her Form E, this was between November 2018 to May 2019, there was at least two Consent Orders made on the time extension.   He then says that W delayed in taking out her Crossley application, but there was an agreement for her extension of time by H in July 2019.  H then says this behaviour shows that W does what she pleases.

79.  While it is true that there have been a number of time extension applications in both case numbers of these parties, a number of them were by consent.  I take the view that it is disingenuous of H now to turn around to blame W on this ground, or says he has no option but to consent as he has to “take a pragmatic stance on W’s repeated delays”.

80.  It is also important to note the evolution of this case happens over the period when the world was caught in the Covid pandemic, court proceedings in both HK and Germany have been rescheduled or vacated often due to this reason.  Again, to blame W’s delay on this reason is grossly unfair.

81.  W says the Crossley trial originally set down by HHJ Melloy for June 2020 was derailed when H failed to apply to give evidence via VCF in good time.  Following this, parties consented to vacate the PTR in September 2020.  Another PTR was set down for July 2021, but the matter did not proceed to trial, and the Crossley application was eventually adjourned sine die when this Court deals with the W’s current application for stay.  It is worth mentioning here that H refers to a letter from W’s solicitors in March 2023 saying that since HHJ Melloy’s Order in late July 2021 for parties to set down trial date, “… the Petitioner has instigated and actively pursued financial applications relating to the party’s marriage in Germany …”.  H strongly objects to this, there was no new application after July 2021, he says W is misleading the Court, and that it was “pejoratively incorrect”.  I find this unnecessarily harsh, and the misleading accusation presumptuous.  There is no dispute as to the number and dates of H’s various applications in the German Court, which is a matter of fact, and deposed to by each of the parties’ German lawyer.  The Court cannot be misled by a one liner in a letter.  However, it is true that at least three of the applications were actively pursued in Germany after July 2021.

82.  W also reminds the Court that H has dragged his feet on applying for decree absolute of the HK proceedings.  After the Decree Nisi was granted, W waited for more than 3 months for H to take action, and wrote to him to ask if he intended to take out an application, he did not reply.  W took out her application for Decree Absolute in December 2020.  H, via his lawyer, states in March 2021 that he intended to apply for MPS which he could not do if a Decree Absolute has been granted.  When HHJ Melloy gave an Unless Order for H to respond, he still failed to do so; resulting in W taking out the Decree Absolute application which was successfully granted in April 2021.

83.  Notwithstanding Covid, it is clear that both parties have caused delay in this case. I do not find H’s focus on W’s alleged delay in these proceedings an important feature in my decision. 

B.  Money Spent in HK, need to start afresh in Germany

84.  Another one of H’s point is that he has spent substantial money in these proceedings in Hong Kong, and he has to start afresh in Germany. 

85.  It is worth remembering that it was H who initiated the divorce in HK, it was also shortly after that he also initiated 5 applications in Germany.  W is on the defence on both fronts, and have to respond to the litigations that H takes out against her.  She must have also incurred substantial legal costs in both places.

86.  H argues that if financial matters were to be dealt with by German Court, everything goes back to step one.  I cannot see the merit in this argument.  Indeed, fresh application needs to be made in Germany. But the financial information produced in the HK proceedings are limited and outdated; the parties’ Form Es were back in January and May 2019, and would have required updating in any event if the matter proceeds here.  Yet there has been certain amount of financial information already submitted in the Germany proceedings pursuant to a May 2022 Order from the German Court, followed by a finding on the financials in June 2022.  H argues that his German lawyer says that information may not be applicable in the new proceedings.  But as said by HHJ Melloy in the above-mentioned case of SMM v TWM, whatever has been submitted can be a useful base from which more information can be sought.  Furthermore, evidence have been exchanged regarding the PNA, and if they cannot be used in Germany directly, the basic information are already there and can be used to provide the relevant evidence necessary for the assessment of the PNA in Germany. What is also helpful, is that I was reminded by H’s submission that HHJ Melloy has by her Order on 21 April 2020 gave leave to the parties to use the documents in the HK proceedings for the legal action taking place in Germany.  

C.  Did W submit to Jurisdiction in Hong Kong

87.  H submits that W has submitted to the jurisdiction of Hong Kong by responding to his Petition for divorce here.  This is not disputed by W.  She says she initially did not wish to incur legal fees on a jurisdiction dispute, and when she did file her Answer and Cross Petition in October 2018, she did not know H has issued proceedings in Germany, she only found out about the H’s various proceedings between November 2018 to July 2019. 

88.  W’s counsel rightly submits that while this is true, this is misconceived position to take, as the very reason why W is applying for bifurcation presupposes there being previous ongoing matters in which she has submitted to the jurisdiction in HK.  It is W’s case that the development in this case is at a point that the appropriate venue for the parties’ proceedings going forward should take place in Germany and not HK, which is the basis of the bifurcation application.

89.  At trial, it appears that H’s counsel conceded on this issue when she said she knew that there need to be proceedings in HK and orders made here in order for there to be a platform for bifurcation, as otherwise this would simply be a forum argument.

90.  I agree with W, and H’s point on W’s prior submission to HK jurisdiction is not relevant to the issues before me.

D.  Other points raised by H

91.  Several of H’s other arguments are flawed.

92.  H says that none of the applications in Germany was duplications of any applications in Hong Kong.  This argument was repeated by his counsel but not much elaboration on this point was made in the submissions as to how this advances his case.  I do not see this as part of the test to determine the issues before me.  On the contrary, the facts herein that the issues in Germany so far being all financial / assets related supports the bifurcation argument that the trial of these issues should be heard in Germany going forward; and makes the latter clearly and distinctly the more appropriate forum.

93.  H also argues that W did not challenge jurisdiction from the beginning, and took time to decide this issue and kept on asking for extension of time and eventually decided not to proceed. 

94.  H says if HK was the appropriate forum in 2018, W has not identified “any change of circumstances that renders Hong Kong the inappropriate jurisdiction now”.  There was lengthy discussion on this point at the hearing.  I raised the issue as to whether what H calls “change of fundamentals” (or the lack thereof) is the test to be adopted in my assessment for bifurcation.  H’s counsel submits that “so to identify why it’s not appropriate now, one would have to identify what has changed to render it inappropriate now when it was appropriate then.”  H has repetitively argued that things have not changed, and therefore there is no need to bifurcate or change forum.  W argues that no authorities have cited that there is a need for the Court to find a fundamental change; and took me to the case of W v W, it was submitted that in that case, there was no change, just the wife therein having returned to Canada from UK and obtaining injunction there, and then submitted to the UK jurisdiction for the divorce filed by the husband, she obtained interim maintenance, and then decided to go back to Canada and applied for a stay of the UK proceedings; stay was granted.  This case was also relied on by W as to the very late stage of proceeding where the court did still grant a stay.  I agree with W, I am not of the view that “change” is a test I need to apply, I am to rely on the Spiliada guidelines I quote above. 

95.  That said, it does not mean that there is no change in this case.  Here, W’s connection with HK has decreased over the years, and there is the evident development of the H’s various applications in Germany in the years prior to this hearing; which supports W’s case that Germany has become the distinctly more appropriate forum to take this matter forward, I do not find the need to repeat the arguments here.

96.  H then says the “significant financial proceedings” in Germany W refers to have certainly not resulted in the Courts in Dusseldorf being “fully versed with the financial aspect of the case”.  And that the German application made by H were dismissed by the German courts due to “lis pendens”.  Thirdly, he says “no findings from the proceedings that have already taken place would be used in assessment of claim for post-divorce maintenance”.  Fourthly, H says no financial disclosure has taken place in Germany, whereas parties have exchanged Form E in HK.

97.  I am not in agreement with the above statements.  Even if the Dusseldorf Court is not “fully versed”, it still has more financial information of the parties than HK, as HK only has a very outdated Form E, and H says W’s disclosure therein is inadequate.  The German Court made findings on H’s maintenance application in June 2022, according to W, on the merits of that case (although the parties’ versions of the basis of the finding of this application differ), to which H appealed, and was dismissed.  It was H’s emergency maintenance application which was rejected on “double pendency” ground.  I have not been referred to any supporting evidence for H’s third statement above except from reading H’s German lawyer’s evidence. As for no financial disclosure in Germany, according to the W’s chronology and from her 6^th affirmation, on 4 May 2022 during a court hearing in Germany, Court questioned H on his income and ordered him to submit a list of companies in which he has interest from 2018-2020, annual financial statements for all his companies, and income tax assessment for the years 2018-2020; on 31 May 2022, H made submission to Court the documents requested by this Court Order.  H’s German lawyer made no mention of this financial disclosure ordered by or submitted to the German Court. 

98.  The disparity of the two German lawyers’ affirmation as to what went on in the German proceedings are apparent, but which I am not in a position to resolve.  However, it does not alter the fact that the financial disclosure in HK is outdated, or that the H’s former German maintenance application cannot be re-opened, and that he has to file a new application anyways should he wish to pursue post marital maintenance or asset division in Germany (which is not disputed), in the same way that HK proceedings will need fresh updated financial evidence to be filed to proceed onto financial claims.

99.  H then says W has used the Hong Kong proceedings to achieve her Decree Absolute, and effectively closed the door to H making any application for interim maintenance in Germany.  This is another disingenuous accusation by the H.  It should be well within expectation that after H took out his fresh Petition in October 2019, that the Decree Nisi will follow suit. W as respondent has a right to apply for the Decree Absolute on application to Court, and H was given a chance to respond which he chose not to do.  H has no one to blame but himself when the door to his interim maintenance was closed.

100.  With regard to assets, H argues that there is a HK Company and W has flown into HK to deal with its business, and there is a need for investigation of these holdings, and what happened with the Scheme of Administration.  W says the majority of the assets are in Germany, and her interest in her late husband’s trust has decreased.  H argues that it is yet another matter that requires investigation.  All these discovery related arguments can be thrashed out in either jurisdiction.  There is no evidence before me that the discovery proceeding in one jurisdiction is superior compared to the other, or that either jurisdiction’s extra-territorial reach is comparatively more limited.  

101.  Therefore, I do not find any of H’s above arguments meritorious for his case that HK is the more appropriate forum for this matter.  

Applying the 3-Stage Test

102.  Following Hunter J’s guidance in Louvet v Louvet & Another [1990] 1 HKLR 670, there is a 3-stage analysis to the issue before me.

Stage I Appropriate Forum

W must show that HK is not the natural or appropriate forum

W must show Germany is clearly and distinctly more appropriate forum than Hong Kong

103.  Referring to the overall discussion above, I find that W has succeeded in establishing both of these limbs.  I refer to the connection analysis and will not repeat the factors therein.

104.  From the SJE evidence, I accept that Germany has international jurisdiction on this matter based on W’s habitual residence, which can cover assets outside Germany.

105.  From the H’s 5 proceedings in Germany, clearly the Family Court in Dusseldorf is much more familiar with the background of this case, having managed H’s various application, especially from 2021 to 2023.

Appropriateness of the Forum from the point of view of the trial of the action

106.  H says he is looking to pursue his ancillary relief proceedings. The next step is clearly the issue of the PNA which he contests.  This PNA was written in the German language, and involves provisions where parties opted for separate property regime, waived equalisation of accrued gains, statutory maintenance payment, pension equalisation, post-marital maintenance, and statutory inheritance.  The parties agree not to list out their “common estate”, and confirm it was signed under their own free will.  

107.  The validity of the PNA has to be examined; if this is to take place  in HK, then one of the exercise the HK Court has to conduct is to consider this document with reference to German law.  In my view, the current SJE opinion is inadequate to assist a HK Court to assess whether the PNA will be considered valid.  Referring back to only some of the excerpts I quoted above as to the approach of the German Court to consider a marriage contract, there is required a deeper analysis on whether the PNA has departed from some standards of financial relief which a party could be entitled in the circumstances, and this requires the understanding of the application of German matrimonial relief provisions.  Clearly the German Court is in a much better position to interpret and assess this PNA which is written in German, which makes reference to types of financial relief under German law, which requires assessment in the context of German matrimonial law, and the extent to which it will be enforced between the parties.  In this respect, the German Court is distinctly a more appropriate venue to conduct this hearing regarding the PNA.

108.  H in his own affirmation says he has interest in a German limited company: C GmbH.  While W has interest in a company also in Germany. Following the litigation over the PNA, and if the H is to proceed onto financial claims, not only are there assets in Germany, but the disclosure of the parties’ assets are likely to be in a language other than English.  Again, the German Court is clearly and distinctly the more appropriate venue to deal with the parties’ proceedings.

109.  As for whatever H seeks in terms of ancillary relief claim from W, there is in place a finding from the Family Court in Dusseldorf in June 2022 of H’s Maintenance application.  Furthermore, the Dusseldorf Court already has information on the financial position of the respective parties from previous proceedings.  This information are possibly in German, is much more updated than the parties Form E filed in 2019, must be still relevant and should form the backbone of further proceedings between the parties.

110.  The SJE opinion also raises the issue of recognition in Germany of an Order made in HK, there is no final findings on this issue but this is one consideration that the Court should take into account.  At the hearing, it was H’s submission that I should not be concerned with the issue of enforceability.  What was submitted by his counsel was this: “What I am saying is you are not required to give regard to that because enforceability is a matter … you make the appropriate order on the facts before you, and if enforceability becomes an issue down the line, then it has to be dealt with then.”  His counsel then says there are assets in HK.  I am quite surprised by this submission, as H does not seem to care that a HK Court may give him an “empty” Order with respect to enforcement in Germany.  It may be the case that H is saying that whatever is in HK is enough to satisfy his claim against W, but it is still surprising that he would choose this route over enforcement of a German Order against the W who is resident in Germany.   I do not agree with this approach, and I find that the uncertainty over the recognition of a HK Order must lean in favour of the need to have the parties’ litigation takes place in Germany, in the interest of fairness and justice to them.

111.  W has submitted that German Court is a better venue to deal with the parties’ investments and pensions, and is more adept at pension entitlement calculations under German law should that be applicable.  I agree.

Bifurcation

112.  W relies on the Hong Kong Civil Procedure 2024 Vol. 1 at 11//1/83 on her submission that natural forum for a dispute does not remain fixed and can change on the circumstances:

“The natural forum of a dispute is not irrevocably fixed at the time of the incident giving rise to the dispute as, for example, the proper law of a contract is fixed at the outset. At the start of a dispute the Spiliada factors may indicate a particular jurisdiction, but the natural forum must be responsive to subsequent changes in those factors, such as relocation / death of witnesses or concessions as to legal or factual issues.”

113.  I have cited a number of reasons above in support of bifurcation of these proceedings at this stage and to move the forum to Germany, this will not be repeated here.

114.  According to the authorities, this can be where the analyses end.  For completeness, I shall comment briefly on the following two stages.

Stage II Juridical Advantage

Will H be deprived of a legitimate personal or juridical advantage if the matter is tried in Germany?

115.  W submits that the juridical advantage or disadvantage has to be established by evidence, “But the test is not whether there would be injustice to H or whether it would be just that H be allowed to exploit his HK advantage”; but the fairness or justice between the parties.

116.  H seems to suggest in his submission that once the PNA is found to be valid, the terms therein shall be strictly enforced; and this presents a juridical disadvantage to H.  His counsel quotes the following from the SJE opinion:

“If the marriage contract is valid, it would in principle be enforced by the German courts.”

H says that HK court will consider the PNA to give it appropriate weight; and that under German law the PNA has no requirement for prior legal advice or financial disclosure.  I believe what the H is here saying, that if the PNA is found to be valid, he will be bound by all the waivers he made in claims against W.

117.  Also to put H’s position in context, he has submitted to jurisdiction in Germany with his various proceedings, and yet chose to argue that this one aspect of German law is not to his favour.

118.  The above quote from H was precipitated and followed by a number of pages in the opinion discussing how the German Court would consider the validity of a marriage contract.  Some part of which have been quoted above.  It is complex and detailed, and clear that the Germans Court will assess the PNA against a number of criteria to ensure that the agreement is acceptable under German laws, and result in a fair treatment of the parties.

119.  What is unfathomable is why the above quote by H does not include the text immediately following, which reads:

“However, it should be noted that if the prenuptial agreement would not stand up to judicial scrutiny under the so called “exercise control” (see above), the court may make an adjustment to the prenuptial agreement …”

120.  This above piece of the opinion appears to say that the German Court may not enforce a marriage contract en bloc.  So even if W succeeds in arguing the validity of the PNA, H is still not necessarily faced with enforcement of the whole of the PNA as it now stands, as adjustment may be made after “judicial scrutiny”.

121.  By the same token, a HK Court can consider the validity of a PNA, and even if it is accepted, it is still open to assess the weight to be attached to the PNA and determine in what way it will affect the outcome of the ancillary relief proceedings.  The weight can be very light or very significant.  This uncertainty in the consideration of the PNA in HK may not be too different from whether a German Court will adjust the terms of a marriage contract.  Regardless, both courts are targeted at arriving at a fair solution for the parties.

122.  In my reading of the SJE opinion on this issue and as quoted above, H’s position is incorrect; and I do not take the view that H would be suffering from the juridical disadvantage that he claims.

123.  H then quoted the case of SPH v SA (2014) 17 HKCFAR 364, in brief, the wife in that case challenged the validity of a prenuptial agreement, the Court of Appeal finds that if the agreement is upheld in Germany the W would suffer serious juridical disadvantage, and the Court of Final Appeal took the view that she might not achieve substantial justice in Germany because the PNA would be enforced absolutely if found to be valid.  Now while this is the CFA finding based on the facts and evidence for that case; I do not find that relying on this particular point regarding the treatment of marriage contract in a 2014 case and based on German law at that point of time, can be applied without question to this case, we are not fully aware of what information the CFA had on hand to come to that conclusion. But what we have is a SJE opinion here, and that on W’s interpretation and my reading of the content, I am unable to accept H’s interpretation as put forward by his counsel.

124.  There are no other legal or personal disadvantages that the H claims.

125.  I have also reminded myself that the German Court has raised the issue of whether a HK decision would be recognisable in Germany.  As said, I have no answer to that question on the evidence before me.  But in the context juridical disadvantage, it makes more sense to me that H should be more focused on obtaining a decision from a German Court which he can enforce against W who resides and has business interests in Germany.  No one raised the issue of whether there will be difficulty enforcing a German decision in Hong Kong.

Stage III The Balancing Exercise

126.  Based on the case law, I do not have to go into this balancing exercise. 

Conclusion

127.  I refer to my findings above, I have concluded that Germany is a distinctively more appropriate venue for the trying of this case going forward.  This having taken into account various factors above, inter alia, the parties’ connection with HK versus Germany, the ability of the respective jurisdiction to handle these applications, and how far the proceedings have proceeded in each jurisdiction.  

128.  I have been assisted by the SJE opinion to which the parties have referred but not challenged.  Germany is eminently a jurisdiction that can handle the ongoing financial aspects of these proceedings, having already dealt with at least four out of five of H’s applications (one was withdrawn by the H) more substantively in Germany.

129.  I have also taken the view that bifurcation is the correct way to go at this stage of the proceedings.  H says they have not asked for anything in HK which they are asking for in Germany, in my view, that makes the bifurcation the more sensible way forward.  As discussed above, the proceedings that have taken place in Germany pertains to the parties’ financials and assets, while it is acknowledged that H needs to take out fresh application for post marital maintenance or other financial claims, it makes perfect sense for the German Court to assume jurisdiction going forward as this will be the on-going focus of the parties’ case.

130.  Furthermore, as discussed above, I do not take the view that H suffers any juridical disadvantages with regard to the PNA.  And even if he is correct in that he would, and I have to conduct a balancing exercise, I will still find that the bifurcation of these proceedings in favour of Germany outweighs this concern.

131.  The Court in Germany shall be in a better position to do parties justice as they will be making decisions based on a contested PNA, which will be assessed in its validity against German matrimonial law, or have necessary adjustment be made thereto. And the parties’ financial assets situated in Germany and other parts of the world will be considered against the yardstick of German law addressing the respective parties’ claims, in the end arriving at a resolution that is binding and enforceable against two German nationals whose home base is in Germany / Europe.

132.  I therefore conclude that I shall make an order in terms of the W’s Summons.  

Costs

133.  I do not see any reason why costs should not follow the event, I shall therefore make an Order that H is to pay W’s costs of this Summons. 

Order

134.  The Order shall read as follows:

a.  I make an order in terms of Paragraph 1 of W’s Summons dated 19 September 2023.

b.  Costs of this Summons be to the W, including all costs reserved, with certificates for counsels.  This to be a Cost Order nisi to be made absolute 14 days from the date of this Judgment.