K v. W

FCMC 8369/2021

[2022] HKFC 200

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES

NUMBER 8369 OF 2021

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JUDGMENT

( Defended petition : behaviour and three-stage inquiry )

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1.  In this case, the petitioner husband seeks to divorce with the respondent wife, alleging that the latter has behaved in such a way that he cannot reasonably be expected to live with her. She defends the petition.

2.  Oral evidence was heard by me on 29 August 2022. Only the parties themselves gave evidence. There was no other witness nor any supporting exhibit attached to their affirmations.

3.  On 3 October 2022, I rule that their marriage has broken down irretrievably and formally pronounce in open court that decree nisi be granted, with reasons of my decision to be handed down on the same day. The followings are my reasoning.

4.  For the benefit of the wife who is a litigant in person, I have arranged a court interpreter to interpret this judgment into Chinese for her.

Background

5.  The parties married in March 2016. The husband, now aged 40, is a service engineer/technician of medical apparatus. The wife, now aged 32, is a sales executive. There is no child born within the wedlock of the parties.

6.  After their marriage, the couple moved to live with the husband’s mother in her one-bedroom flat. In November 2020, with the financial assistance of their parents and the service of a mortgage, they purchased a flat in Yuen Long which was intended to be their matrimonial home (“YS Building”). Sadly, they never moved into YS Building as a couple. After a quarrel which took place around the midnight of 14 July 2021, the husband left the wife and has not lived with her ever since. The wife later moves into YS Building herself. The parties thus separated on 14 July 2021.

7.  The husband filed his petition for divorce on 19 August 2021. The particulars of behaviours pleaded by him in his petition are these:

(a)  in early 2021, the wife kicked him in the street due to differences in their views;

(b)  the wife often threw tantrum without a reason towards him. She left their home 3 or 4 times a week after throwing tantrum;

(c)  the wife often unreasonably demanded him to make extra payment for expenses or expenses which were beyond his means. She failed to discuss with him before she made important decisions.

8.  The wife filed a defence to the petition and a supplemental defence respectively on 6 September 2021 and 7 February 2022. Both documents have the same content, save that she has attached some documents to the supplemental defence. The documents are 2 Chinese memos allegedly written by the husband (basically saying that he would not hit the wife again in the future), and some WhatsApp messages from her to a third party dated 22 October 2017 enquiring the whereabouts of the husband. In gist, she avers in her pleadings that :

(a)  she does not agree with the particulars of behaviour alleged by the husband;

(b)  it was the husband who chose to evade from their family problem(s) by not returning to home or losing contact;

(c)  the husband unilaterally divorced from her in order to avoid his family responsibility;

(d)  the husband physically assaulted her during the marriage.

9.  Pausing here, it needs to be pointed out that the wife has not filed a cross-petition; she merely defends and avers that the marriage has not broken down irretrievably. There is thus no need for me to make any findings on her allegation of the husband’s behaviour set out at points (b) to (d) above. It follows that the documents attached to her supplemental defence are irrelevant to the issue(s) of this trial.

10.  It further needs to be pointed out that as at this trial, the parties have already separated for more than a year since 14 July 2021. The wife admits that the separation date in her affirmation. [1] Suggestion was thus made to her in the trial if she would consent to an alternative that a fresh petition be filed by relying on the fact that the parties have separated for 1 year and that she would consent to the divorce. She objected to this alternative. The trial thus became inevitable.

Applicable law

11.  There is only one ground for divorce in Hong Kong, namely the marriage has broken down irretrievably. This can be proved by one or more than one “facts” set out at section 11A of the Matrimonial Causes Ordinance, Cap 197 (“Ordinance”). Here in this case, the husband seeks to rely on the “fact” that the wife has behaved in such a way that he cannot reasonably be expected to live with her : section 11A(2)(b) of the Ordinance.

12.  In Li Kao Feng Ning Judy v Li Hung Lit [1983] 1 HKC 111, the Court of Appeal cited O’Neill v O’Neill [1975] 1 WLR 1118 and explained that the correct question to ask under the said section 11A(2)(b), which involves both a subject and an objective element, is this,

“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 character and the personalities of the parties.” (my emphasis added)

13.  Similar question was also considered by HH Judge Melloy in LSC v PKH (Defended Petition) [2008] HKFLR 324; PKWP v TTS [2011] 2 HKC 481).

14.  In Owens v Owens [2018] 2 FLR 1067, Lord Wilson in giving the lead judgment of the English Supreme Court, analysed the 6 leading cases in respect of “behaviour” in order to determine what the law requires a petitioner to prove under the law. His Lordship further propounded at [28] therein that when applying section 1(2)(b) of the Matrimonial Causes Act 1973 (which is similar to section 11A(2)(b) of the Ordinance in Hong Kong), a 3-stage enquiry had to be considered:

(a)  by reference to the allegations of behaviour in the petition to determine what the respondent did or did not do;

(b)  to assess the effect that the behaviour had upon this particular petitioner in light of the latter’s personality and disposition and of all circumstances in which it occurred; and

(c)  To make an evaluation whether, as a result of the respondent’s behaviour and in the light of its effect on the petitioner, an expectation that the petitioner should continue to live with the respondent would be unreasonable.

15.  His Lordship further explained at [37] therein that the law requires “not that the behaviour should have been unreasonable but that the expectation of continued life together should be unreasonable.”

16.  On the other hand, the respondent’s behaviour needs not be grave or weighty (Buffery v Buffery [1988] 2 FLR 365), nor does the law require the respondent’s behaviour to have caused the breakdown of the marriage (Stevens v Stevens [1979] 1 WLR 885).

17.  The court will regard to the “cumulative effect” of the behaviour. Conduct may therefore consist of a number of acts each of which are apparently reasonably in isolation, but which taken together are such that the petitioner or applicant cannot be expected to live with the respondent (Rayden and Jackson on Relationship Breakdown, Finances and Children at [6.88]).

18.  It is with these principles in mind that I shall analyse the wife’s behaviour as alleged by the husband. But before I do that, I shall say a few words on the personality of the husband.

Stage 1: did the wife have the behavior as alleged?

19.  Under the 1^st stage of inquiry in Owens v Owens (supra), I have to determine what the wife did or did not do. I shall deal with each of the behaviour fact in [7] under the following subheadings.

(i)  The kicking incident

20.  The alleged kicking incident took place on 15 May 2021.

21.  There is no dispute that on that day, there were a few items ordered by the wife from Taobao (淘寶) for YS Building needed to be picked up. There is also no dispute that on that day, the parties had some dispute on when to leave their home to collect these items, and whether they should go together or just the husband would go solely himself. It is indisputable that the wife was not satisfied that the husband left their home late because he was indulged in playing video games, and later went to collect the items by himself without waiting for her.

22.  The husband alleges due to her aforesaid dissatisfaction, the wife went back to home by herself. He chased after her trying to explain why he chose to pick the items up by himself. He grabbed her hand when she attempted to board a bus. She demanded him not to touch her, or else she would make a report to the police. After that, she walked towards the Yuen Long police station and at a traffic light nearby, she kicked him at his buttocks causing him to lose balance and almost fall onto the ground.

23.  The wife denies that she had kicked the husband. She says that the husband tried to stop her by force from boarding the bus, which made her “very agitated” (「令本人非常激動」). During the incident, both of them had “pulling and pushing to each other” (「雙方又互相拉扯」).

24.  In my view, whether the kicking incident did take place or not is not an easy factual question to determine, because apart from the bare oral allegations of the parties of what had happened on 15 May 2021, the court is not assisted by any extrinsic evidence. On balance, I would prefer the wife’s version, ie during the incident, both of them had “pulling and pushing to each other”, rather than the husband’s version that he was kicked by the wife at his buttocks. After all, he is of a much bigger-built than her[2] and that according to him, they were close to Yuen Long police station. It would be an affront to logic that she could kick him to the extent that he lost balance right in front of a law-enforcement building. I thus conclude that the husband has failed to prove on balance of probabilities that the wife had kicked him on 15 May 2021.

25.  With the above findings, there is no need for me to go to the 2^nd and 3^rd stages of inquiry for this particular behavior under the Owens v Owens (supra).

(ii)  Throwing tantrum

26.  According to the husband, he often had to work overtime until 12 midnight. He would then buy night snacks to eat. The wife often threw tantrum at him when he forgot to ask her what night snacks she wanted. She also threw tantrum at him for very trivial matters, eg when he pressed the wrong button while they were playing video game; or when his response was not within her expectation. Whenever she threw tantrum, which might be as many as 3 to 4 times a week, she would not say a word (「唔出聲」) and leave home and did not return until the next morning. When she returned home the next morning, she would continue to throw tantrum by throwing things like shoes or books. No matter who was at fault, she would always make him apologise and force him to write/sign a remorseful letter. This creates a lot of mental stress on him (「導致我承受很大的心理壓力」).

27.  The husband was cross-examined at length by the wife on his allegation of her temper. The court also asked him to clarify some of his oral evidence. In reply, he explained that her loss of temper surfaced in around 2017 or 2018, ie 1 or 2 years into their marriage. He did not want to give up their marriage that soon, and so whenever she threw tantrum, he would try his best to let her have her way (「遷就佢」), hoping that she would change and hold her temper for their marriage in the long run. On one occasion, they had an argument. The wife went crazy and went close to where the knife was kept. As a result, he called the police and they were referred to the service of a social welfare officer. He added that as time flied, the wife had not exhibited any change and he became feeling “scared” to return home.

28.  In response to what happened on 14 July 2021, ie their date of separation, the husband said these. He received the wife’s telephone call at around 10-11 pm that she had hurt her hand when moving items from YS Building. He was at work and thus could only rush back by taxi shortly before midnight. He then tried to help her to move heavy wooden planks to the rubbish collection point, and in the course of doing so, the wooden plank slipped and hit her mouth, causing her to bleed. She threw tantrum at once, took off the wedding ring and threw it away and went back to YS Building. He followed her and apologised. She accused him of hurting her and told him not to come close to her. She hided herself in the kitchen. He then said that he was her husband but why she treated him as if he was her enemy who had killed her father (「殺父仇人」). The wife gave no response to him. That night, he stayed out and did not return home.

29.  In the morning of 16 July 2021, he returned home and tried to soothe her. He asked her not to be angry for what happened that night. She walked away from him and continued to make no response. He then packed his belongings and left.

30.  The wife does not dispute that she had thrown tantrum during the marriage, and when she threw tantrum, she would not say a word but would leave home. She explains that this is the advice given by the social welfare officer. She also insists that all these happened only during the initial stage of the marriage, due to lack of communication and/or crowdedness of their accommodation. She avers that the husband has maliciously exaggerated the duration and frequency of her throwing tantrum.

31.  As to what happened on 14 July 2021, she says that the husband was not happy that although he worked until midnight and was tired, he still had to help in moving the wooden planks to the rubbish collection point. Hence, they started to quarrel. He tried to snatch the wooden plank from her saying that he wanted to help her, but she rejected. Yet he continued to try to snatch the wooden plank from her, during which the plank hit her mouth and caused bleeding. After the incident, he showed no remorse, and even worse, he ran away from home that night. She had to make a report to the police for loss of a person on 15 August 2021.

32.  Upon considering all evidence and having the chance of observing the demeanour of the parties in the witness box, I am of the view that the husband gave truthful evidence on this topic. He was able to give instant, spontaneous and logical responses to the questions that were posed to him. On the other hand, I do not believe the wife’s evidence. Her allegation that she threw tantrum only in the initial stage of the marriage does not sit well with her own affirmation evidence. In her own case, when she found that the husband did not wait for her and went to pick up the Taobao items himself without her on 15 May 2021, which is a very trivial matter, she had some tantrum (「有點情緒」) and did not want to talk to him, and without saying a word (「一言不發」), she headed to the lift herself. Her affirmation evidence of what happened on 14 July 2021 was not logical. If the husband was really not very happy that after work and being tired, he still had to assist in transporting the wooden planks to the rubbish collection point, it makes no logical sense that he would insist to help her transporting the wooden planks when she rejected his offer.

33.  Hence, it is my factual finding that the wife did often throw tantrum over trivial matters throughout the marriage, after which she would not say a word to the husband, but leave home until the next morning. She would continue to throw tantrum by throwing items such as shoes and books.

(iii)  Financial burden

34.  It is the husband’s case that the wife often makes unreasonable financial request or decision, causing him to bear the heavy financial burden for this family. According to him, the total family income at the material times was about $30,000-$40,000 (including $20,000 -$30,000 of him, and $0-$10,000 of the wife), but the monthly expenses were at least $32,845-$35,845 per month, comprising of :

Monthly repayment of YS Building	$11,000-$14,000
His pocket money	$7,000
Repayment to his mother	$6,000
Repayment to loan raised for purchase of PRC carpark by the wife	$2,845
Mortgage repayment of the wife’s PRC property	RMB5,000 (about $6,000)
TOTAL:	$32,845-$35,845

35.  Against such financial situation, he goes on to say, the wife adopted another cat despite his objection and despite that she already had 3 cats (which were kept at her mother’s place for the time being) in May 2021. She spent $3,500 to buy another cat without his knowledge. She often bought Buddhist pendants/plates, each of which cost $1,000-$1,400. In June 2021, she spent an extra $1,500 on re-positioning the air-conditioner of YS Building, due to her belief in Feng Shui. Simply put, she insisted on spending on whatever she decided; or else, she would throw tantrum. Even more so, she had unpaid debt of her own, of which he does not know the details because she refused to tell him.

36.  Basically, the wife admits most if not all of the matters set out above, but says that there is/are reason(s) for doing so.

37.  She admits that she had debts incurred prior to the marriage and the husband had suggested that she should spend less in order to save more and repay the debt in full as soon as possible, but she explains that her meagre income there and then made early repayment in full impossible. She further admits that she adopted a cat and bought another new cat at $3,500 despite the objection of the husband, but stresses that she used her own money to do so. She also agrees that she bought Buddhist pendants/plates, but she did so for investment purpose and each Buddhist pendant/plate cost only a few hundred dollars. She concedes that an extra of $1,500 was spent on re-positioning the air-conditioner, but this was done after joint discussion with the husband. Her case is that each item of expenses was spent reasonably and with her own money, but not from the family income and thus would not impede negatively on the finances of the family.

38.  In addition, she admits in her oral evidence that she did not tell the husband of her exact income, nor was her income ever paid into the joint account. It thus follows that the husband did not have a clue as to her actual income at the material times.

Stage 2: effect of this wife’s behaviour on this husband

39.  Stage 2 requires the court to assess the effect of the behaviour of the wife on this husband in the light of his personality and of all the circumstances in which it occurred.

40.  I shall start with the husband’s personality. Having considered all evidence and having had the chance of observing him in the trial, I hold the view that he is an easy-breezy person and is rather care-free. Even according to the wife, he slept until 2 pm when it was a holiday and spent most of his time playing video games. He went on overseas short trips to Asia or Japan for as many as 8 times with her in 2019. He is thus a person who wishes to enjoy life, rather than being restrained, especially when it comes to his pocket money.

41.  Next, it may helpful to set out the following chronology which in my view are the important dates for the purpose of this judgment:

Date	Events
21/3/2016	Married.
Since 2019	A joint bank account was opened in the joint names of the parties. The husband paid all his salaries into this joint account. He was given $7,000 - $8,000 to spend as his pocket money. The rest of his salary and finances were operated by the wife via this joint account.
4/2020 – 12/2020	Wife quitted her full-time job, and did not have any meaningful income.
28/8/2020	Sale and purchase agreement of YS Building at about $3.32 million.
16/11/2020	Completion of the purchase of YS Building, which was serviced by a mortgage of about $3.24 million (with monthly mortgage repayment ranges from $11,000 to $14,000 per month).
Around 11/2020	Renovation of YS Building started, and 1st renovation payment was made.
12/2020	1st monthly repayment of mortgage (monthly mortgage repayment ranges from $11,000 to $14,000 per month).
-ditto-	The husband had to take out a loan of $150,000 in order to facilitate the wife to buy a car park in China. The monthly repayment is $2,845.
Around 2-3/2021	The parties found out that they were cheated by the renovation contractor, such that they needed a further $150,000 in order to complete the renovation. The husband could not take out a further loan because he has already taken up a loan in December 2020, in order to facilitate the wife to buy the car park in the PRC. In the end, the wife took out a loan of $150,000 in her name. The total renovation costs turned out to be over $400,000; YS Building was merely over 300 sq feet.
14/5/2021	Wife adopted a cat and later bought another cat at $3,500 despite the husband’s objection or without his consent.
15/5/2021	The parties had a dispute as to who should go to collect an item purchased on Taobao (淘寶). The husband preferred to collect it by himself. The wife wanted both of them to go together. An argument broke out between them, with physical exchange. The husband alleged that the wife kicked his buttock causing him to almost lose his balance, which was denied by the wife.
11/6/2021	Wife spent an extra of $1,500 to change the installation of the air conditioner.
14/7/2021	The parties had another dispute during the delivery of wooden planks from YS Building to the rubbish collection centre around midnight. The wife threw away the wedding ring during the dispute. The husband tried to soothe her thereafter, but she did not respond to him. That night, he left her and has not returned to live with her ever since.
16/7/2021	The husband went to see the wife again and asked if she could forget the dispute of 14/7/2021. Again, the wife did not make any response to him. He then packed his belongings and left her.
19/8/2021	The husband filed his petition for divorce.

42.  The overall evidence of this case shows that although the wife threw tantrum during the marriage, the husband would still try to soothe her.[3] Since 2019, he let her manage his money that was paid into the joint account, though he knew nothing about her actual financial means or liabilities, as she did not tell him. However, unlike the husband, the wife kept her salaries in her own bank account and did not pay into the joint account.

43.  Things, however, had a downturn around the time since YS Building was purchased. From the above chronology, the wife quitted her full time job in April 2020; she did not have any meaningful income from April to December 2020, which means that during this period, his salaries became the only source of income of the family. Around the same period of time, she bought a car park in the PRC, despite his objection, such that a loan had to be raised in his name for the purchase of the PRC carpark. Then, over $400,000 had to be spent on the renovation of YS Building, triggering the need to raise another loan. There was also the need to pay the 1^st mortgage repayment of YS Building in December 2020, and to pay for the mortgage repayment of the wife’s PRC property as she did not have a full time job. In my view, all these created an enormous financial pressure on this husband, which this wife herself acknowledges while giving evidence in this trial but tries to sway away his concern by commenting this: who would not feel financial pressure upon purchasing a property?

44.  Such feeling of imminent financial pressure of this husband was exemplified by the fact that this wife kept it to herself her own financial situation, by not revealing to him of her actual financial situation, including her actual income, and the fact that she spent rather unnecessarily on her cats and the re-installation of the air-conditioner, which I believe the decisions were entirely hers without prior discussion with the husband.

45.  The situation was made worse during the renovation period of YS Building when the parties had a row on 15 May 2021, followed by another dispute around the midnight of 14 July 2021 during which the wife threw tantrum and made the symbolic move of throwing away the wedding ring and refused to talk to him that night, despite his attempt to soothe her.

46.  The above matters altogether drove this husband to a breaking point, after which he left and never returns to live with the wife since that midnight of 14 July 2021.

Stage 3: evaluate if it is unreasonable to expect the husband should continue to live with the wife

47.  Upon evaluation and due to the cumulative effect of all the matters aforesaid on this husband, I come to the conclusion that it is unreasonable to expect this husband to continue to live with this wife. Their marriage has broken down irretrievably.

48.  In coming to the above conclusion, there are 3 additional matters which should not be overlooked.

49.  First, despite the wife’s claim that the marriage has not broken down and thus defends the divorce, she made a contradictory suggestion in August 2021 that the husband could return to stay with his mother, whereas the wife herself would move into YS Building, showing that she herself suggested a de facto separation there and then. [4]

50.  Second, although she has not formally filed a cross-petition, she makes very negative and derogatory comment on the character and behaviour of the husband in her defence and supplemental defence, affirmation and oral evidence. Among other things, she complains that he lacks planning for the family and evades taking up any family responsibilities, thereby shifting all family responsibilities onto her but yet failing to appreciate the contributions made by her for the family. She even accuses him of physical abuse on her during their marriage.

51.  Although there is no need for me to make a determination on such alleged behaviour of the husband, because there is no cross-petition, I am of the view that if all these allegations of the wife were true, this unequivocally points to a breakdown of their marriage irretrievably.

52.  Third, it is beyond dispute that the parties have separated for more than 1 year as at this trial, and there is not any shown intention that they would live together as husband and wife again.

Conclusion

53.  There are other allegations or dispute of facts in this trial. But in my view, the above analysis is sufficient for me to form a view that any right thinking person would come to the conclusion that this wife has behaved in such a way that this husband cannot reasonably be expected to live with her, and that their marriage has broken down irretrievably. I pronounce that there should be a decree nisi in respect of the main suit.

54.  I have already heard the submission on costs during final submission. The husband asks that costs should follow the event. He has not asked for costs to be taxed on a different basis. The wife submits that there should be no order as to costs.

55.  Upon due consideration, I see no reason that the wife should not be made to bear the costs. I thus order that she shall bear the costs of the main suit and the trial of this defended petition, on a party and party basis, to be taxed if not agreed. I certify the attendance of counsel.

56.  I shall make the following directions in respect of the first appointment hearing of the ancillary relief:

(1)  The next first appointment hearing shall be fixed for 4 January 2023 at 2.30 pm in Court 11 (30 minutes be reserved);

(2)  Both parties do comply with PD 15.11 in preparing for the next first appointment hearing;

(3)  Time for both parties to comply with paragraph 4 of the Order made on 1 November 2021 be extended to 14 days before the next first appointment hearing; the said joint letter (duly signed by both parties) shall be lodged by the petitioner with the court 7 days before the next first appointment hearing;

(4)  Time for the wife to comply with paragraph 5 of the Order made on 1 November 2021 be extended to 14 days before the next first appointment hearing;

(5)  Both parties shall attend the next first appointment hearing personally;

(6)  Costs of this court order be reserved;

(7)  This order be drawn up by the petitioner in Chinese for approval.