SA formerly known as SA v. SPH

CACV 99/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 99 OF 2012

(ON APPEAL FROM HCMC NO. 1 OF 2011)

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D E C I S I O N

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1. The husband applies for leave to appeal to the Court of Final Appeal against our judgment of 8 February 2013 on the ‘great general or public importance’ and the ‘or otherwise’ grounds. He further asks for a stay of our judgment pending appeal.

The questions

2. The questions in respect of the first ground are :

1)  Whether and in what circumstances, when the parties have, by entering into signed agreements, elected to have their marriage governed by the law of a particular country, should that election be disregarded by the Court when determining which forum is clearly and distinctly the more natural and appropriate forum for the trial of the action.

2)  Whether the Hong Kong Court should give recognition to agreements, such as those entered into by the parties in this case, by directing that matters concerning their marriage are dealt with under the regimen that they themselves elected.

3) Whether and in what circumstances it can be found to be a ‘juridical disadvantage’ to give effect to agreements entered into by parties to order their own affairs.

4) and if the validity of that agreement is to be challenged, under what circumstances can it be said that the place where the document was executed, in that language, with that choice of law, witnessed by people in that country, is not the appropriate place to determine the validity of the agreement.

3.  Mr. Pilbrow SC for the husband argued that our judgment is not in accordance with the trend of the English courts on forum where pre-nuptial agreements are involved.

4.  In our view these questions are not engaged in the present case.  As Mr. Coleman SC for the wife correctly pointed out, the husband confused forum with the choice of law in the agreements.  As discussed in our judgment, in respect of forum, one looks to the connecting factors to the chosen forum.  The fact that the parties had entered into agreements with a choice of German law clause is only one of the factors to be considered.  It is of note there is no exclusive jurisdiction clause and the agreements themselves are subject to challenge. The choice of German law is relevant to the applicability of the agreements in the wife’s application for financial relief.  The applicability of the agreements is an issue that this Court held can be appropriately tried in Hong Kong.  Ultimately the issue goes to weight and to be considered in the specific context of this case.

The ‘or otherwise’ ground

5. In respect of the ‘or otherwise’ ground, the husband’s argument is simply based on his contention that we erred in holding Hong Kong to be the appropriate forum. This is not a sufficient basis to invoke the ‘or otherwise’ ground.

Stay

6. Since we refused to grant leave, we will also not grant a stay of the execution.

Conclusion

7. The application is refused with costs to the wife.