CKF v. LHL

FCMC No.17031/2014

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES NO. 17031 OF 2014

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D E C I S I O N

(Defended Petition : Unreasonable Behaviour/
Cross Petition : Unreasonable Behaviour)

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Introduction

1.  This is the trial of the Wife’s Petition and the Husband’s Cross Petition where both parties accused of the other’s unreasonable behaviour which had led to their 16 years’ marriage irretrievably broken down.   There is one child of the family born in 2000 who is now living with his mother (that is, the Petitioner).  

2.  The parties separated in 2014.  The parties are at difference as to the exact date of separation.   The Wife said it was 1 December 2014 in her Financial Statement (Form E).  The Husband said it was 30 December 2014.

3.  There had been suggestion more than once from the Husband that since the parties’ separation had exceeded one year and that both of them, by the conduct of filing the Petition and Cross Petition, had agreed that the marriage had been irretrievably broken down, the marriage should be dissolved by way of a consensual divorce (that is, one year separation) rather than spending the time and resources for litigating upon the parties’ respective allegations against each other.   Nowadays, this is indeed the orthodox way of dissolving a marriage which had irretrievably been broken down.    The Wife, however, disagreed and insisted on having her case of divorce fought in a court of law.   The Husband, on the other hand, also disagreed with the Wife’s allegations of reasonable behaviour and decided also to have his time in court to present evidence on his Cross Petition for divorce.   It is unfortunate that the trial which was estimated to last for 3 days had eventually overrun to 4 days.

4.  It is fair to say that as at the date of trial of the divorce, there were 2 Summonses taken out by the Husband seeking restoration of his injunction summons which was adjourned sine die and also a committal summons against the Wife for breach of undertakings given at the hearing of the injunction summons.  These 2 Summonses were listed for trial together on 23 and 24 August 2016. 

The statutory provisions

5.  Part III of the Matrimonial Causes Ordinance, Cap.179 (“MCO”) provides, inter alia, as follows :-

“11. Ground for divorce, etc.

The sole ground for presenting or making a petition or application for divorce shall be that the marriage has broken down irretrievable and proceedings for divorce shall be instituted either –

(a) by a petition for divorce; or

(b) by an application for divorce.

11A. Proof of ground for petition

(1) A petition for divorce may be presented to the court by either party to a marriage.

(2) 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 –

(a) that the respondent has committed adultery and the petitioner finds it intolerable to live with the respondent;

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

(c) that the parties to the marriage have lived apart for a continuous period of at least 1 year immediately preceding the presentation of the petition and the respondent consents to a decree being granted;

(d) that the parties to the marriage have lived apart for a continuous period of at least 2 years immediately preceding the presentation of the petition;

(e)    that the respondent has deserted the petitioner for a continuous period of at least 1 year immediately preceding the presentation of the petition.”

6.  Thus, there is only one ground for divorce in Hong Kong, namely, that the marriage has broken down irretrievably (my emphasis) which can be proved by one or more of the five facts stated in Section 11A of the MCO.   The parties here are both relying upon the fact under Section 11A(2)(b) of the MCO though with the common views that the marriage had been irretrievably broken down.   Apparently the parties are asking the Court to determine who is the “culprit”, so to speak.

7.  Moreover, Section 15A (4) of the MCO provides :-

“(4) Where the petitioner alleged that the respondent has behaved in such a way that the petitioner cannot reasonably be expected to live with him, but the parties to the marriage have lived with each other for a period or periods after the date of the occurrence of the final incident relied on by the petitioner and held by the court to support his allegation, that fact shall be disregarded in determining for the purposes of section 11A(2)(b), whether the petitioner cannot reasonably be expected to live with the respondent if the length of that period or of those periods together is 6 months or less.”

The case law

8.  In the case of PKWP v. TTS [2011] 2 HKC where Her Honour Judge Melloy at paragraph 11 of the Judgment had said -

“11. So what is meant by that ? The appropriate test was originally formulated in the case of Livingstone-Stallard v. Livingstone Stallard [1974] 2 All ER 766. In that case the Judge posed the following question :

‘Would any right thinking person come to the conclusion that this husband has behaved in such a way that his 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.’

12. It is then both a subjective and an objective test.  The issue is not so much whether one spouses actions are unreasonable per se (although they may be), but rather whether this particular spouse found the other’s actions unreasonable.  On that basis the court will determine whether or not the one can be reasonably expected to live with the other.   The test has been approved in a number of cases since, including O’Neill v. O’Neill [1975] 3 All ER 289 which was cited with approval in the Hong Kong case Lindsay v. Lindsay [1983] 2 HKC 302, FCMC 1569/1982 referred to below.”

9.  Moreover, in the latter case of KJA v. KYSH formerly known as YSH, FCMC No.4456/2013, the learned Judge restated and applied the same test in her Judgment on the husband’s petition upon the wife’s unreasonable behaviour.  

10.  In the English cardinal case of Grenfell v. Grenfell [1978] Fam 128 where Ormrod LJ had said :-

“There is no point, as I see it, in a case like this of conducting an inquiry into behaviour merely to satisfy feelings, however genuinely and sincerely held by one or other of the parties. To do so would be a waste of time of the court and, in any event, would be running, as I think, counter to the general policy or philosophy of the divorce legislation as it stands today. The purpose of Parliament was to ensure that where a marriage has irretrievably broken down, it should be dissolved as quickly and as painlessly as possible under the Act, and attempts to recriminate in the manner in which the wife in this case appears to wish to do should be, in my judgment, firmly discouraged.”

11.  In the Grenfell case, the wife petitioned for divorce based on the husband’s unreasonable behaviour.   The husband in his answer, whilst agreeing that the marriage had irretrievably broken down but denied that was attributed to his behaviour, cross petitioned for a decree based on the parties’ having separated for five years.    The wife, in her reply, agreed that the parties had separated for five years but alleged that the grant of a decree would result in grave hardship to her in that as a practising Christian, her conscience would be affronted if the marriage was to be dissolved otherwise than on grounds of substance.  The wife’s reply was struck out and it was decided that the court should first determine whether the husband’s case of five years separation was established, and if so, whether the court should receive evidence from the wife in support of her prayer for dissolution.    The wife appealed the striking out decision and lost.

The Wife’s Petition  

12.  At paragraph 9 of the Wife’s Petition, she provided details of the Husband’s unreasonable behaviour as follows :-

“李xx有婚外情，他與另外一個女人有關係，大概12年令崔xx飽受精神壓力，甚至要睇醫生，兩人為此經常吵架，令崔xx無法容忍。”

The Husband’s Cross Petition

13.  In the Husband’s Cross Petition attached with his Answer to the Wife’s Petition, the alleged unreasonable behaviour against the Wife are as follows :-

“ 交相呈請書

5. 因呈請人的行為而實在無法合理期望答辯人與其共 同生活 :

有關行為的詳細資料

6. 呈請人對答辯人缺乏關心及愛護，令答辯人感到非 常困擾及傷痛。

7. 呈請人的性格急進而暴躁，常常因為事情未有按照她的意願發生而發怒。

8. 呈請人的態度是咄咄逼人，經常因答辯人在工作期間不能馬上在公司接聽她的來電而發怒，並在短時間內不停致電答辯人的手機號碼及答辯人的公司電話號碼，要求交待答辯人的行縱及正在做什麽，令答辯人感到十分苦惱及為難。

9. 呈請人在婚姻期間曾多次在語言上及身體上虐待答辯人，常常用粗言不斷辱罵答辯人及使用暴力。在2014年，呈請人多次襲擊答辯人，並對答辯人造成不同程度身體上的傷害，包括曾經襲擊答辯人並在手腕及手臂位置引致紅印及抓傷及利用熨斗板大力拍打答辯人背部。

10. 呈請人曾對答辯人作出恐嚇並需要警方介入。在婚姻期間，呈請人與答辯人在婚姻居所內吵架時，曾經多次對答辯人作出威脅表示她要玩死答辯人，甚至威脅要殺死答辯人。

11. 呈請人對答辯人金錢的要求常常不合理並胡亂消費。在2014年12月22日，呈請人在沒有獲得答辯 人的同意下私自盜取答辯人的 HSBC 信用卡並用該信用卡私自從答辯人户口提取 HK$20,000 及以 EPS 方式胡亂購買金器，聲稱要將龍鳳鐲送給家庭兒子及呈請人在內地的母親。

12.     呈請人對家庭及金錢價值觀與答辯人的不同，雙方因而常常吵架，令答辯人感到非常悲傷及失望。由於上述原因，答辯人實在無法合理期望與呈請人繼續共同生活，而上述婚姻已破裂至無可挽救。”

14.  The Wife acted in person throughout this trial of the divorce suit which was bitterly fought.   The Husband was legally represented and engaged Counsel Mr. Enzo Chow.    Both parties have not called any other witnesses and simply relied upon their own testimonies and documents.

The Parties’ “Unreasonable Behaviour”

15.  In a gist, the Wife’s pleaded case is that the Husband’s extra marital relationship for some 12 years had caused the breakdown of their 16-year marriage.   Throughout the trial, the Wife was quite emotional and repeatedly accused the Husband’s affairs with another woman, so called “包二奶”.    I must say that from time to time the Wife had become almost uncontrollable that this Court had to stand down the trial in order for her to calm down.    To a certain extent, the trial was unnecessarily prolonged and disrupted.   Admittedly, the Wife has been suffering from mania which might have been the reason for such demeanour in Court. 

16.  The Wife, whilst unrepresented for this trial, filed different lengthy affirmations all handwritten in Chinese setting out her unpleasant experiences in the past which include the Husband accused her of having psychiatric problem; forcefully sent her to a psychiatric hospital in Mainland China; drove her out from the matrimonial home in Shenzhen PRC when she was made completely naked which she described as : “把我一絲不掛推出屋外 !”; the Husband’s discreet travel with the mistress during Christmas; reference to various text and whatsapp messages with the Husband; reference to some receipts and invoices of purchase and travel allegedly were made by the Husband for the mistress.    

17.  On the other hand, the Husband’s Cross Petition principally focused upon the Wife’s abusive character and mentality, causing all sorts of harassment and nuisance, assaults, and causing bodily injuries on him, differences in money values and opinion which he cannot reasonably be expected to live with the Wife.

18.  Both parties, apart from leading evidence to support their own case of unreasonable behaviour against the other party, also had had the chance to respond and bring in any evidence in rebuttal to the allegations that they face.    No matter which way the evidence goes on each side, the undisputed fact is that both parties’ are of the same view that their marriage had already been irretrievably broken down which must be dissolved by the Court.   

Analysis and Discussion

19.  I do not intend to venture into each and every allegation or answer of the parties nor, in my view, am I required to do so after given careful consideration to the Judgment of Hon Cheung JA in the case of SJH v. RJH (divorce: answer) [2012] 4 HKLRD 308 at 317 paragraph 11(7) where His Lordship was said :-

“(7) In any event, even if the without prejudice proposals should not be placed before the Judge and this Court should ignore the husband’s proposal, the fact is that the wife had on 21 September 2011 made an open offer to the husband seeking a divorce based on the identified mild behaviour grounds. As both parties are now of the same view that the marriage has irretrievably broken down, the Court in exercising its divorce jurisdiction in a modern setting, will be loathe to allow the parties to use valuable court time to litigate a matter which has no impact whatsoever on the divorce itself and which should be dissolved as quickly and painlessly as possible (my emphasis). As Ormrod LH observed in Grenfell v. Grenfell [1978] 1 All ER 561…..”

20.  Further, at paragraph 11(8)(c) of the same Judgment in SJH where his Lordship continued :

“(8)(c) While it is true that in Grenfell v. Grenfell there was common ground that the parties had been separated for five years, which is not the situation here if the proposal by the husband is to be ignored, the discussion by Ormrod LJ on the underlying principle of a modern divorce is instructive andapposite, if not more so, 35 years after that decision to modern Hong Kong (my emphasis).”

21.  Furthermore, under Order 1A rule 1 of the Hong Kong Civil Procedure 2016 (“HKCP”), where it provides :

“1. The underlying objectives of these rules are –

(a) To increase the cost-effectiveness of any practice and procedure to be followed in relation to proceedings before the Court;

(b) To ensure that a case is dealt with as expeditiously as is reasonably practicable;

(c) To promote a sense of reasonable proportion and procedural economy in the conduct of proceedings;

(d) To ensure fairness between the parties;

(e) To facilitate the settlement of disputes; and

(f)    To ensure that the resources of the Court are distributed fairly.”

22.  Having said, I am minded to say that nowadays after the Civil Justice Reform, courts should exercise their case management powers to achieve a speedy resolution of the parties’ dispute and ensure justice was done.     In my decision, parties who choose to insist upon their rights to litigate over matters which could, or indeed should, otherwise be resolved without a bitterly fought battle in a court of law would find himself or herself doing so at his or her own expense.

23.  In the present case the Wife, apparently without the benefit of legal advice and acting in person, had blatantly rejected the Husband’s proposals of having a consensual divorce.   Faced with such a situation, the Husband, legally represented throughout, also decided to go for a full trial of his Cross Petition and also defending the Wife’s case against him.  

24.  The parties’ Petition and Cross Petition are supported by their respective Statement of Truth on the factual contents stated therein which, amongst other accusations, include the common fact, or if I may use the word ‘consensus’, that their marriage has been irretrievably broken down.    As a matter of law, such a fact is the only ground upon which the Court in its divorce jurisdiction should grant a decree nisi to end the marital relationship ‘quickly and painlessly’ with expedition.    In such a case, any finding of fact on whoever’s accusations against the other is no more than an inquiry into behaviour to satisfy feelings even though they are genuinely and sincerely held by one or other of the parties.    To do so would be a waste of time of the court and counter to the general policy or philosophy of divorce legislation today (see Grenfell v. Grenfell, supra).    Whoever is the ‘winner’ or scores the most amongst the various allegations would not affect the ‘consensus’ that the marriage has been irretrievably broken down and that a decree nisi is being prayed for by both of them.   In my view, asking the court to put a ‘tick or cross’ on each of the allegations serves no legitimate and meaningful purposes save and except to promote parties’ grievances and animosity.   This also runs against the spirit of the Civil Justice Reform under Order 1A rule 1 of the HKCP which I have outlined above.

25.   For these reasons and on all fairness and practicality, I grant a decree nisi for dissolution of the parties’ marriage upon the parties’ ‘consensus’ that their marriage had been irretrievably broken down which was affirmatively stated in the Petition and the Cross Petition.

Costs

26.  Given careful consideration to all the above, I find it is fair and reasonable not to grant any costs order.   For otherwise, the court would be encouraging parties to have their days in court under the misapprehension or hoping that it would be at the expense of the other party to resolve disputes which could have been completely avoided if either or both parties adopt a sensible and pragmatic approach.    

Orders

27.  I now make the following Orders :-

(1)There be a Decree Nisi on the Petitioner’s Petition and the  Respondent’s Cross Petition; and

(2)There be no Order as to costs, including all costs reserved.

28.   This is a Costs Order Nisi which will become absolute if no application to vary the same is filed within 21 days of this Decision.

1^st Appointment

29.   I also direct the parties to arrange with the Listing Officer for a hearing of the 1^st Appointment within 14 days from this Decision.