WONG CHAN OI YING SARITA v. WONG YIU CHO

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES

SUIT NO. 11053 OF 2005

_________________

_________________

_____________________

J U D G M E N T

_____________________

1. In this suit the Petitioner Wife seeks a dissolution of her marriage on the ground of irretrievable breakdown under s. 11A.(2)(b) of Matrimonial Causes Ordinance, Cap 179, that the Respondent Husband has behaved in such a way that she cannot reasonably be expected to live with him.  The Husband by his Answer denies that the marriage has broken down irretrievably and he also denies that he has behaved in the manner as alleged by the Wife in her petition.

Background

2. The parties were married on 27^th March 1997, the Husband being then a 30 years old company clerk, and the Wife a registered nurse at 28 years of age.  There is one son of the marriage, being born on 28^th March 1999, and will soon be 8 years old.

3. It is common ground that after the marriage the parties intended to continue to work to support their family, and that the Wife’s income as a registered nurse was substantially higher than the Husband’s.  Perhaps for that reason the Husband soon resigned from his job as a clerk to work on various different jobs including as a tourist guide, salesman and merchandiser for the next 2 years until about 2001 when he borrowed $70,000 from the Wife to set up his own business trading on luxurious lady handbags, which also involved purchasing goods with his supplemental credit cards of which the Wife was the principal holder.

4. In or about 2003 the Wife started to notice that the Husband had only made minimum repayments to his supplemental credit cards for the goods purchased by him for his business, with the outstanding balance accumulating more and more every month due to the high interest rates charged by the bank and credit card companies.

5. Eventually the Husband closed down his business and was unable to pay off his credit card debts, which had by then accumulated to more than $700,000, and for which the Wife as the principal card holder had become liable and had to borrow from her relatives to pay off the debts on his behalf.  In order to repay her relatives the Wife suggested selling their matrimonial home to which the Husband disagreed, but failed to make proposal as to how to repay the debts, which led to numerous arguments between the parties.  By 2004 the parties’ relationship was deteriorating to the extent that the Wife refused to share the bedroom with the Husband who moved to sleep in the living room.

6. Things finally came to a head in September 2005 when the Wife complained to the police that the Husband had broken open the drawers in her bedroom to search through her personal things, and shortly thereafter on 4^th October 2005 she instituted these proceedings by issuing a petition for divorce against the Husband.

7. On the same day the Wife came before me on ex-parte basis for an ouster order against the Husband on the ground that he had been harassing and intimidating her.  I refused to deal with the application on ex-parte basis and instead adjourned the hearing to 6^th October 2005 as an inter-parte summons.

8. At that hearing the Husband asked for time to file his defence and gave his undertaking not to molest or disturb the Wife which was accepted by both the Wife and the court.  The hearing was therefore adjourned for argument to 2^nd December 2005 when the Wife’s application was eventually refused on the ground that there was insufficient evidence of such urgency or gravity to justify ordering the Husband, who was then unemployed and without financial means, out of the matrimonial home.  The parties and their son have remained residing under the same roof, with the Wife and the child occupying the master bedroom, their domestic helper in the remaining bedroom, and the Husband in the living room.

The Case

9. The Wife’s case for divorce against the Husband on his behaviour is basically as follows :

(a)      that he failed to hold down any job for long throughout the marriage;

(b)     that he indulged in all forms of gambling to the serious financial detriment of the whole family;

(c)     that he was being financially irresponsible by getting into heavy debts but left the burden of repayment on her shoulder, thereby driving her into debts and putting her in grave financial difficulties;

(d)     that he was greedy and would even take money from the Filipino maid or from the welfare payments from the Social Welfare Department for his mother’s living expenses;

(e)      that he had lied to her or concealed from her the situation in respect of his business;

(f)      that he had consistently failed to make proper or sufficient financial provisions for the family, preferably to rely on her income;

(g)     that he had consistently failed to assist her in solving the family’s financial problems;

(h)     that he had regularly harassed and disturbed her by searching through her belongings, throwing away her clothing, falsely accusing her of having an affair, disturbing her from her sleep, telephoning her at her place of work, and threatening to disturb her work as a nurse.

10. In his own defence the Husband agreed that he has changed jobs from time to time, but always for the sole purpose of improving his income and his career, and denied indulging in gambling or harassing or disturbing the Wife, or lying to her about his business, the eventual failure of which he put as something beyond his control and not due to any financial irresponsibility on his part.  While he admitted of not being able to make much financial provisions for the family, he claims that it was due to his unemployment or insufficient income, insisting that he has already done his best for the family, and prayed that he should be given a further chance to salvage the marriage.

The Law

11. It is provided in s. 11A.(2) of Matrimonial Causes Ordinance, Cap. 179 that :

“The court hearing a petition for divorce shall not hold the marriage to have broken down irretrievably unless the petitioner satisfies the court of one or more of the following facts –

……

(b) that the respondent has behaved in such a way that the petitioner cannot reasonably be expected to live with the respondent …… ”.

Furthermore, s. 15 provides that :

“(1) In any proceedings for divorce it shall be the duty of the court to inquire, in so far as it reasonably can, into any facts alleged by any party to the proceedings.

(2) If the court is satisfied on the evidence of any such fact as is mentioned in section 11A(2) or 11B(2), then unless it is satisfied on all the evidence that the marriage has not broken down irretrievably, it shall, subject to subsection (3) of this section, grant a decree nisi of divorce”.

12. The burden is of course on the petitioner to prove, on balance of probability, that the respondent has behaved as alleged that the petitioner cannot reasonably be expected to live with the respondent.

13. The words “reasonably be expected”, according to Rayden and Jackson on Divorce and Family Matters, 18th edition, suggest an objective test :

“The words …… prima facie suggest an objective test.  Nevertheless, in considering what is reasonable, the court (in accordance with its duty to inquire, so far as it reasonably can, into the facts alleged) will have regard to the history of the marriage and to the individual spouses before it, and from this point of view will have regard to this petitioner and this respondent in assessing what is reasonable …… The approach has been thus summed up.  The court has to decide the single question whether the respondent has so behaved that it is unreasonable to expect the wife to live with him :  in order to decide that, it is necessary to make findings of fact as to what the respondent actually did, and findings of fact as to the impact of that conduct on the petitioner :  there, of course, a subjective element has been evaluated but at the end of the day the question falls to be determined by an objective test …… ”

14. The authority for this approach can be found the speech of Lord Reid in Gollins v Gollins[1963] 2 ALL ER 966 at 970 where he said :

“A judge does and must try to read the minds of the parties in order to evaluate their conduct.  In matrimonial cases we are not concerned with the reasonable man, as we are in cases of negligence.  We are dealing with this man and this woman and the fewer a prior; assumptions we make about them the better”.

15. The correct test to be applied is in fact stated by Dunn J in Livingstone-Stallard v Livingstone-Stallard [1974] 2 ALL ER 766 at p 771 :

“Would any right-thinking person come to the conclusion that this husband has behaved in such a way that this wife cannot reasonably be expected to live with him, taking into account the whole of the circumstances and the characters and the personalities of the parties”.

16. This proposition of Dunn J was approved as the correct test by the Court of Appeal in O’Neill v O’Neill [1975] 3 ALL ER 289 at 295, and was also applied in subsequent cases in Bergin v Bergin [1983] 1 ALL ER 905, Buffery v Buffery [1988] 2 FLR 365 CA, and Hadjiruilitis (Tsavliris) v Tsavliris [2003] 1 FLR 81.

The Evidence

17. The Husband’s behaviour in this case as alleged by the Wife essentially consists of his failure to hold down a job and to contribute his income towards the maintenance of the family due to his gambling habit, and that his irresponsible and deceitful manner in conducting his business had caused the Wife substantial debts and financial hardship, and for which he had failed or refused to make amend or to assist her to resolve the problem, but had instead harassed her and disturbed her at her job.

18. There is no dispute that the Husband did change his job during the marriage, at least 4 times on his own admission, all of different nature, but he denied that it was because he was being impatient and impractical by setting his goal too high as alleged by the Wife, and that he was just being laid off by the employer on one occasion, and on others he was merely trying to get a better job with higher pay to support the family.

19. There is however the Wife’s evidence that the Husband’s frequent changing of job for higher pay was in fact to feed his gambling habit such as betting on horse racing and football matches when he was frequently seen sitting in front of the television on the nights when such events took place, as well as playing mahjong which she could easily overheard when she was talking to him on the phone, and frequenting the casinos in Macau of which she had seen a VIP card issued by one of the casinos to the Husband for his use.  She argued that he must have been an important enough customer to the casino to receive such a special treatment from them.

20. The Husband did not dispute that he would from time to time play mahjong or bet on horse racing, but denied indulging in gambling, and explained that the casino VIP card was issued to him for the purpose of his job, although he never gave any details as to why his job would require such a card, nor did he produce his betting record from the Hong Kong Jockey Club to show that it was not as frequent as the Wife had alleged, as he had claimed that he would do in his Answer, which just go to strengthen the Wife’s case.

21. Having squandering all his income on gambling instead of contributing towards the maintenance of the family, according to the Wife, the Husband would then take money from their Filipino maid and in particularly the welfare money from the Social Welfare Department for his mother’s expenses living in an old people’s home.

22. The Husband did not dispute either allegations but explained that he merely borrowed those moneys for his immediate use and which he would repay shortly thereafter.  Again he failed to give any further details as to why he needed to borrow the money in particularly the welfare payments for his mother other than that he was then in financial difficulties, which is not altogether convincing or satisfactory.

23. The most damaging of the Husband’s behaviour, according to the Wife’s evidence, that indeed led to the breakdown of their marriage, was the irresponsible way in which he conducted his handbags business by incurring huge credit card debts in excess of $700,000 that he failed to pay off with his business profits, and instead lied to her that he lost his business because his goods had been seized by the custom office in South Korea, and when he was confronted by the Wife for proof, he admitted that what he told her was not true, but then blamed it on his bad luck, the Sars and the poor economy at that time, rather than facing up to his responsibility or to offer any useful or meaningful assistance to the Wife as to how to resolve her financial problem as a result, or as to how to repay her relatives of what were essentially his business debts.

24. Although the Husband did promise more than once, and in his Answer as well, that he would one day repay all his debts due to the Wife’s relatives, he has for more than 2 years since failed to do so or come up with any viable solution, while his proposal made at the trial to repay by monthly instalments of a few hundred dollars each appears wholly unrealistic, but yet he stubbornly refused to even consider the Wife’s more practical suggestion to sell the matrimonial home to use part of the sale proceeds to settle the debts.

25. One of the reasons proffered by the Wife as to why the Husband was not agreeable to the sale of the matrimonial home was that it was due to his own selfish need for a roof over his head, and that he was using it as a means to get more money from her.  With the evidence before me, I cannot say that the Wife’s suggestion is without merits.

26. Thus take me to the last aspect of the Wife’s case that the Husband had been disturbing and harassing her by preventing her from sleeping, by going through her personal things, breaking open her drawers to search her documents, and throwing away some of her clothing, which led to the police involvement on more than one occasion.

27. As is in all his defence, the Husband was ready to admit that all the incidents alleged by the Wife did take place, but sought to explain his actions, such as when he wanted to discuss any family matters with the Wife, the only time that he could do was when she returned from work and before she went to sleep, or that he wanted to get some of his own documents from the bedroom drawers but they were all locked by the Wife, or that he did not like some of her clothing so he decided to throw them away, including 3 of her bras as a “silent protest”, using his own words.

28. None of these explanations was, not surprisingly, acceptable to the Wife, and I can see why, as there must surely be better ways to discuss or resolve matters with the Wife, if what the Husband alleged is true, than the ways he did, in particularly as to the throwing away of her clothing, and certainly not the kind of behaviour one would expect from someone who claimed that he still loved his wife and cared about his marriage, and I accept the Wife’s evidence that he was continually attempting to at least annoy her, if not down right harassing her.

29. I find the Wife a capable and hardworking person who had during the marriage assisted and encouraged the Husband to improve his earning for the common good of their family.  I accept her evidence that she had expected the Husband to find stable employment in order to make his fair financial contribution towards their son and their marriage, and when he decided to start his own business, she did give her full support including providing him with some start-up capital.  I accept her evidence as being completely consistent with the facts of the case, most of which were not disputed by the Husband, but with his behaviour as aforesaid, I can understand why she has become so disillusioned with him and not want to live with him anymore.

30. I believe that the marriage ended for practical purpose when the Husband failed to offer any viable solution to settle his debts due to the Wife’s relatives but still refused to her proposal to sell the matrimonial home.  I accept the Wife’s evidence that by then she had lost all hope on the Husband and their marriage, and although the Husband had repeated during the trial that he was anxious for a reconciliation with the Wife, I find it just a hollow gesture and totally inconsistent with his behaviour.  I have absolutely no reservation that this marriage has broken down irretrievably.  The Wife told me on more than one occasion that in no circumstances would she be prepared to reconcile with the Husband or to continue to live with him.  I accept her explanation that as the Husband refused to move out, she had no alternative but to remain in the matrimonial home, but confining herself to her bedroom with her son.

31. I cannot, of course, dissolve this marriage unless I am satisfied that the Husband has behaved in such a way that the Wife cannot reasonably be expected to live with him.  Applying the test from LivingStone- Stallard v Livingstone-Stallard, I have no hesitation that, with all the evidence before me and having seen and heard the parties in court, any right-thinking person would come to the conclusion that this man had behaved in such a way that this woman could not reasonably be expected to live with him.  Accordingly there will be a decree nisi under s. 11A.(2)(b) of the Matrimonial Causes Ordinance, Cap. 179.