BL v. SJY

FCMC 7831 / 2008

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES

NUMBER 7831 OF 2008

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BETWEEN

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J U D G M E N T

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Introduction

1.  The matter now to be determined by this court is who is to blame for the breakdown of the parties’ marriage. Each side recognizes that the marriage has broken down irretrievably. The issue is whether the blame for the breakdown of the marriage lies at the door of the husband or the wife.

Background

2.  The wife initially issued a divorce petition on the 4 July 2008 based on the husband’s unreasonable behaviour. This petition was subsequently amended by court order of the 18 September 2008. The amended petition remained substantially the same as the original one, save that the names of women with whom the husband is alleged to have been unfaithful, have been removed. The husband, whilst unrepresented, initially filed an answer dated the 28 August 2008, in very general terms. On the 18 September 2008 he was given leave to file and serve a comprehensive answer and cross petition, which he did. On the 2 October 2008, solicitors then instructed filed the answer and cross petition on his behalf. He alleges that the marriage has broken down because of the wife’s unreasonable behaviour. The wife filed a reply and answer to the cross petition on the 23 October 2008. She maintained her original stance.

3.  Attempts have been made to settle the issue of the divorce in a more constructive and sensible way. This is to be encouraged. Unfortunately those attempts have not been successful. In my Ruling concerning maintenance pending suit/interim maintenance, on the 21 November 2008, I said at paragraph 3 and 4 as follows:

3.  At present there is a contested divorce, the wife having filed a petition based on the husband’s unreasonable behaviour on 7 July 2008.  The husband filed a comprehensive answer and cross-petition on 2 October 2008.  The wife filed a reply and answer to cross-petition on the 23^rd of that month.

4.  That is presently where the matter stands, although it does appear to be accepted that the marriage is now at an end. Both parties agree that they have been effectively separated for a period in excess of one year. More than that I do not intend to say at this stage, although it would appear to me to be sensible if the divorce itself were to proceed on a more consensual basis.

4.  Subsequently the husband indicated very sensibly at that stage that he was willing to consent to a divorce based on one-year separation with consent.  On the 19 January 2009 the court received a consent summons, drafted by the husband’s then solicitors, in which the parties agreed to proceed on that basis.  There were agreements relating to the withdrawal of the husband’s answer and cross petition and the wife’s reply and answer to cross petition.  The registry then raised a query concerning the respondent’s original answer dated the 28 August 2008.  On the 20 February 2009 I heard the wife’s application to vary the interim maintenance payments.  I gave my ruling on the same day.  The husband also filed a new Form 4 after the hearing on the 20 February, in which he stated that he did not intend to defend the divorce and that he would consent to a divorce based on one year separation with consent.  The wife subsequently issued a summons seeking to re-amend the petition to one-year separation with consent. She deemed this appropriate given the requisition by the registry and subsequent hold up.  At the hearing on the 9 June 2009 to hear that summons the husband indicated that he now wished to withdraw his consent to proceed on a consensual basis. This is notwithstanding a warning from the bench regarding potential cost implications if he decided to take that course.  Regardless of that, the husband did indeed withdraw his consent and the matter now comes before me for argument.

5.  There was a further development in that the husband indicated in an affirmation dated the 16 July 2009 that he wished to withdraw earlier filings for a divorce (i.e. his answer and cross petition). This would have meant that the wife was able to proceed with her unreasonable behaviour petition on an undefended basis. Notwithstanding this affirmation the husband subsequently said during the hearing that he wished to proceed with the defended suit.

6.  It was then against this background that the matter now falls to be determined.

7.  The parties have one child, a little girl, S, who is now nearly 2 years of age. The underlying dispute centres on the ongoing arrangements for that child. The wife accuses the husband of wishing to delay matters in order to strengthen his claims in relation to custody, care and control and access.

Issue

8.  There is really only one issue to be determined, namely who is to blame for the breakdown of the marriage. Has the husband behaved in such a way that the wife cannot reasonably be expected to live with him? Or has the wife behaved in such a way that the husband cannot reasonably be expected to live with her? Or have both behaved in such a way that neither can be expected to live with the other.

The law

9.  So what constitutes unreasonable behaviour? The appropriate test can be found in the case of Livingstone-Stallard v Livingstone-Stallard 1974 2 ALL ER 766, which states as follows:

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.

10.  It is then both a subjective and an objective test. The issue is not so much whether the husband or wife’s actions are unreasonable per se, although this does come into it, but rather whether this particular husband or wife found the actions of the other unreasonable, given all of the circumstances and the character and personality of each.

11.  In addition reference needs to be made to s.15A (4) Matrimonial Causes Ordinance Cap. 179, which states as follows:

(4)  Where the petitioner alleges 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. (Amended 29 of 1995 s.17)

Has then the husband behaved in such a way that the wife cannot reasonably be expected to live with him?

12.  In summary the wife complains of four things, adultery, physical abuse, neglect and disrespectful behaviour.

Adultery

13.  Although the wife’s petition is based on unreasonable behaviour, as opposed to adultery, this seems to be the main reason from her perspective for the breakdown of the marriage. She refers to affairs by the husband with three possible women. In support of her case she admits to obtaining copies of sexually explicit e-mails from the husband’s computer without his consent. She read these out during the hearing. During cross examination the husband admitted that he had written the e-mails but disputed that this meant that he had had extra marital relations with these women, the inference being that he engaged in “phone sex” or presumably the e-mail equivalent. When asked directly by me whether or not there had been infidelity on his part he replied

It is not true or false. And again,

I could say yes, I could say no.

14.  On the balance of probabilities I think it is likely that the husband engaged in extra marital relations especially given the fact that it is not disputed that the parties spent long periods of time apart and that clearly the marriage had been in significant difficulty for a considerable period of time.

15.  In addition, it is admitted by the husband that he wrote the sexually explicit e-mails. Consequently I also need to determine therefore, whether the husband’s actions in this regard were such that the wife could not be reasonably expected to live with him? It seems to me that the answer to that question must also be yes. The wife, who discovered these e-mails whilst she was pregnant, found what was expressed there unacceptable. From an objective standpoint it seems to me that most reasonable people would find the fact that one spouse was writing sexually explicit e-mails to third parties and engaging in what appears to be the e-mail equivalent of phone sex, to be unreasonable and not conducive to normal marital relations.

16.  Consequently I have come to the conclusion that that this husband had behaved in such a way that the wife cannot reasonably be expected to live with him.

Physical abuse

17.  The wife maintains that the husband was physically violent towards her on a number of occasions. In particular she refers to an incident on the 2 July 2007 and 21 March 2008 when the Police were called. On the wife’s case the parties separated in June 2007, which is when she says that she stopped cohabiting with the husband and cooking and cleaning for him, although they continued to live under the same roof. The husband maintains that he is not a violent man and that infact it is the wife who has a violent temperament. Having heard from both parties and having read the pleadings it seems to me that both parties probably reacted violently towards the other at times and that each parties behaviour was, on occasion, inappropriate. I have no doubt that in part this was fuelled by the wife’s suspicions concerning the husband’s inappropriate behaviour with other women as set out above.

Neglect

18.  The wife also complains of neglect. She says that the husband neglected her, especially during her pregnancy. She complains that he stayed out late, spent time away from her at the weekends, didn’t attend the hospital for pre natal visits, and didn’t ensure that she had sufficient food on a visit to China etc. The husband disputes these allegations, which in the main are not of as serious a nature as those referred to above. It is very difficult to ascertain the truth or otherwise of these allegations, save as a general observation to note that they appear to be symptomatic of a marriage breaking down. Suffice it to say that the wife obviously felt that the husband has been neglectful and is resentful and angry of the husband as a result.

Disrespectful behaviour

19.  Likewise the wife also complains of other things, which I have included under the general head of disrespectful behaviour. This included a complaint that the husband had not comforted the wife, who had a cough, on a trip to a trade fair in China in April 2007, whilst 5 months pregnant. Other complaints include the fact that husband did not pay her any remuneration whilst she worked directly for him. The husband does not dispute that he did not pay the wife a salary, but says that instead she received gifts from him. In any event it seems to me that these matters are also of a more minor nature but probably, similar to those matters referred to under the heading of neglect, are indicative of a marriage that was in serious difficulty. It does not seem to me to be necessary to take either of these elements of the case any further, given my findings in relation to the sexually explicit e-mails.

Conclusion

20.  In conclusion therefore I find that the husband has behaved in such a way that the wife cannot reasonably be expected to live with him.

Has the wife behaved in such a way that the husband cannot reasonably be expected to live with her?

21.  During his oral submission the husband admitted that the wife had submitted a good summary of their marriage. However he wished me to refer to their previous years of marriage. He pointed out in particular that the wife had left Hong Kong from 1999 – 2002 in order to obtain a green card in the United States. The husband seemed to be alleging that this was unreasonable behaviour on the part of the wife. Even if this was the case however, the parties subsequently lived together for a period in excess of six months. Consequently I do not intend to rely on this aspect of the case, nor anything else that could be said to be particularly “historical”, although I would accept that it does provide a valuable backdrop to the marriage. Clearly this is a marriage that has been in significant difficulty for a long period of time.

22.  In his answer and cross petition dated the 2 October 2008 the husband makes a number of allegations against the wife. He referred in particular to the following factors: the wife’s ultimatum regarding a baby, her neglect of that baby and her behaviour as a wife.

Ultimatum regarding a baby

23.  The husband alleges that the wife issued an ultimatum. According to him she said that if they didn’t have a baby that she wanted a divorce. He says that she made sex conditional and that he found this unbearable. The wife admitted that she wanted to have a child and that she had done so since the age of 30 – but that the husband had not been ready. They had agreed to abort one child following the discovery of a heart defect. Their child S was planned. In the circumstances it seems to me to be perfectly reasonable for a wife to want to have a child with her husband. The way in which she expressed that at the time may have been somewhat unfortunate – but that is all.

Neglect of the baby

24.  The husband makes a number of serious accusations in his answer and cross petition about the wife’s alleged neglect of the baby. In the main he did not address me on these points during the hearing. The wife disputes his allegations and they remain unproven.

The Petitioner’s behaviour as a wife

25.  The husband makes numerous other general allegations, e.g. that the wife is lazy and selfish, that she failed to perform her duties as a wife (i.e. cooking, cleaning etc), that she suffers from mood swings and that she is domineering and controlling. In the main these allegations are again symptomatic of a marriage that is in serious difficulty. They were bare allegations and remain unproven.

Conclusion

26.  I do not accept that the husband has shown that the wife has behaved in such a way that he cannot reasonably be expected to live with her.

Final conclusion

27.  Thus in conclusion I will grant a decree nisi of divorce based on the husband’s unreasonable behaviour. Costs shall follow the event. Therefore the husband shall pay the wife’s costs of and incidental to the suit, including any costs reserved, on a party and party basis to be taxed if not agreed.