MAY LAU TANG SU PING v. LAU CHU

Husband and wife - financial provision - agreement - Order of Court - whether Order made on judicial separation can bar wife's claim for ancillary relief on subsequent decree of divorce.

A Court, in sanctioning by its Order a financial agreement reached by husband and wife in a judicial separation cannot, upon the true construction of s.4 of the Matrimonial Proceedings and Property Ordinance, Cap.192, bar either party from applying for further ancillary relief upon a subsequent decree of divorce.

IN THE COURT OF APPEAL

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J U D G M E N T

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Kempster, J.A. :

1. This is a wife's appeal from an order made by Mayo J on 17th December 1987 striking out her application for ancillary relief, made pursuant to section 4 of the Matrimonial Proceedings and Property Ordinance (Cap 192), following the pronouncement of a decree nisi of divorce in her husband's favour on 5th November 1986, as being frivolous, vexatious and an abuse of the process of the Court.

2. The notice which the wife gave pursuant to section 17A of the Matrimonial Causes Ordinance (Cap 179) remains outstanding. When it comes on for hearing the Court will be required to take into account the matters set out in sub-section (2) and; subject to sub-section (4), must do so before pronouncing a decree absolute.

3. By 1981 the marriage with which we are concerned was in a parlous if not a terminal state. In a petition seeking judicial separation the wife alleged that, due to his adultery, it was intolerable for her to live with her husband and meanwhile litigation relating to their very substantial business interests had been commenced between them. Very sensibly every possible step was at that stage taken by both Parties and by their advisers so to divide the joint assets as to make husband and wife economically independent of each other; appropriate provision being made for the children of the marriage. On 27th July 1982 Power J pronounced a decree of judicial separation in the wife's favour and made a written agreement concluded between the parties, which resolved all outstanding matters of economic dispute, an order of the Court.

4. The Provisions of that order were expressed to be made

"in full and final settlement of the petitioner's claims for herself against the .... respondent and the .... respondent's claims for himself against the petitioner for all ancillary relief and costs claimed or claimable by the petitioner and the .... respondent under all statutory provisions relating thereto in Hong Kong"

and stated in terms that

"neither the .... respondent nor the petitioner shall make any claims of a financial nature against the other in matrimonial proceedings instituted within the jurisdiction of the Court of Hong Kong or in any other jurisdiction"

Finally the comprehensive claims for ancillary relief respectively made by the parties were dismissed.

5. The first problem falling for resolution is the effect of the order of Power J. Properly construed did it preclude or purport to preclude further application for financial provision or adjustment by either party only until the pronouncement of a decree nisi of nullity or divorce or were its terms sufficiently wide to embrace any such application made even after such a pronouncement? By inescapable implication Mayo J construed it in the latter sense and, after making every effort to construe the order in the narrower sense, I am satisfied that he was right. The excerpts from the order already cited particularly the words

''proceedings instituted within the jurisdiction of the Court of Hong Kong or in any other jurisdiction,"

no proceedings in any other jurisdiction having then been instituted, are conclusive. This finding, I might add, does no more than reflect the manifest intention of the parties to make a clean and final break in the economic context.

6. I initially strove to construe the order in the narrower sense because every order made by a court of unlimited jurisdiction, such as the High Court of Hong Kong, must be complied with until set aside, (Isaac's v Robertson⁽¹⁾)and, if possible is so to be interpreted as to come within the powers of the court which made it. In particular an order made following a decree of judicial separation may remain in force after the subsequent divorce of the parties. Matrimonial Proceedings Ordinance section 9(3).

7. It is submitted here that the wider construction would render the order void in whole or in part. Mayo J struck out the wife's summons on the basis that he had no jurisdiction to entertain an application already dismissed by a court of co-ordinate jurisdiction. de Lasala v de Lasala⁽²⁾. But for the divorce proceedings it is common ground that he would have been right. ''It is" also well settled that jurisdiction cannot be conferred by consent or estoppel" per Sir Roger Ormrod in Munks v Munks⁽³⁾ at p 578.

8. The next, consequential, problem is whether Power J could lawfully have made an order to be construed in the wider sense. If he could the wife's application for ancillary relief following, the decree nisi of divorce constituted a breach of its terms, could not be entertained, and was properly struck out. If he could not the order must be set aside in whole or in part properly to reflect the authority then vested in the Court and to allow the wife's application to be heard on its merits. Following the tacit invitation of this Court the wife has sought leave to appeal against the order of Power J out of time thereby acknowledging that, its terms having reflected the intention of all concerned and having in no way resulted from any misrepresentation, it cannot be amended under RSC Order 20 rule 11 "the slip rule" MacCarthy v Agard⁽⁴⁾. It is, however, submitted on her behalf that this Court, having all the powers of the court of first instance by reason of section 13(3) of the Supreme Court Ordinance (Cap 4), can accede to a claim made ex debito justitiae to set aside or amend an order under the inherent jurisdiction in any event. Kofi Forfie v Seifah⁽⁵⁾ at p 67; Isaacs v Robertson⁽¹⁾ at p 103; Munks v Munks⁽³⁾ at p 578.

9. The powers exercisable both by Power J and Mayo J depended on the true construction of section 4 of the Matrimonial Proceedings and Property Ordinance which reads :

"(1) On granting a decree of divorce, a decree of nullity of marriage or a decree of judicial separation or at any time thereafter (whether, in the case of a decree of divorce or of nullity of marriage before or after the decree is made absolute) , the court may, subject to the provisions of section 25(1), make any one or more of the following orders, that is to say -

(a)     an order that either party to the marriage shall make to the other such periodical payments and for such term as may be specified in the order;

(b)     an order that either Party to the marriage shall secure to the other to the satisfaction of the court, such periodical payments and for such term as may be so specified;

(c)     an order that either party to the marriage shall pay to the other such lump sum or sums as may be so specified,

(2)    Without prejudice to the generality of subsection (1)(c), an order under this section that a party to a marriage shall pay a lump sum to the other party -

(a)     may be made for the purpose of enabling that other party to meet any liabilities or expenses reasonably incurred by him or her in maintaining himself or herself or any child of the family before making. an application for an order under this section;

(b)     may provide for the payment of that sum by instalments of such amount as may be specified in the order and may require the payment of the instalments to be secured to  the satisfaction of the court."

Mr Ching for the husband invites us to regard the word "decree" as critical and governing all that follows. He submits that if we do so we arrive at an acceptable construction demonstrating that it matters not whether the decree be one of divorce, of nullity or of judicial separation, Once an order has been made in any of such suits allowing for a clean break, Minton v Minton⁽⁶⁾, or once an application for any such order has been dismissed (de Lasala v de Lasala⁽²⁾ the rights of the parties under the section are exhausted. Not so contends Mr Rodway for the wife. The words of the section must be construed disjunctively as the definition of the term "or" in section 1 of the Interpretation and General Clauses Ordinance (Cap 1) requires :

"'or', 'other' and 'otherwise' shall be construed disjunctively and not as implying similarity unless the word 'similar' or some other word of like meaning is added".

With or without such assistance I can only construe section 4 as conferring upon^-.the Court jurisdiction to accede to or dismiss an application for ancillary relief both when a decree of judicial separation is pronounced or any time thereafter and following an ensuing, decree of divorce or nullity. Any other construction would render it impossible for the Court to recognise the loss to the judicially separated wife of her rights as a widow on divorce or annulment or if a like application pending the hearing of a petiton for judicial separation has been dismissed, to award her maintenance pending suit after the filing of a petition for divorce or nullity under the similarly worded section 3. As Lord Hailsham LC said in Hyman v Hyman⁽⁷⁾ at p 614 :

"The power of the Court to make provision for a wife on the dissolution of her marriage is a necessary incident to the power to decree such a dissolution conferred not merely in the interests of the wife but of the public ....

10. Power J was not entitled to make an order on judicial separation robbing the court of its jurisdiction to entertain an application for ancillary relief after the subsequent pronouncement of a decree nisi of divorce or nullity.

11. In the premises I would accede to the wife's reluctant application for leave to appeal out of time against the order of Power J, allow the appeal and so amend that order as to reflect the jurisdiction properly exercisable on 27th July 1982. This I would do by deleting, from the penultimate line in clause 6 the word "thereto" and substituting "to judicial separation" and by deleting from the penultimate line in clause 19 the word "matrimonial" and substituting, "judicial separation". I do not thereby suggest that the same result might not equally well be reached by the exercise of the inherent jurisdiction.

12. It follows that, in my opinion, the substantive appeal from the Order of Mayo J must also be allowed. The summons would be restored accordingly.

13. I would, in conclusion, suggest that the outstanding application under section 17A of the Matrimonial Causes Ordinance be listed for hearing at the same time as the summons under section 4 of the Matrimonial Proceedings and Property Ordinance.

Fuad, J.A.

14. Whether or not the wife will succeed in obtaining any further assets from her husband in the divorce proceedings is not the question that we have to decide. I respectfully agree with all that My Lord Kempster JA has said and I, too, would allow the appeal and make the orders he proposes.

Penlington, J.A.:

15. There is nothing I can add to what has been said by my Lord Kempster JA. I too would allow the appeal and make the orders proposed.

(1) [1985] AC 97

(2) [1980] AC 546

(3) [1985] FLR 576

(4) [1933] 2 KB 417

(5) [1958] AC 59

(6) [1979] AC 593

(7) [1929] AC 601