CVL also known as VLC V. WMLS also known as MLW

FCMC 12540/2022

[2025] HKFC 11

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES

NO. 12540 OF 2022

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Judgment
(Main Suit)

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1.  In this Judgment, I will refer to the Petitioner-Husband as “H”, and the Respondent-Wife as “W”.

2.  This is the trial of H’s petition for divorce.

A.  BACKGROUND

3.  Parties were married in 1984. No child was born from the marriage.

4.  During the mid- 1980s, Parties moved to Hong Kong. In or about 1993, Parties established a business in the food and beverage industry (“MFCL”). Both Parties are directors and shareholders in MFCL, and both assume their respective positions there. Throughout the years, the business of MFCL thrived and, according to Parties’ Form Es, enabled Parties to attain considerable wealth over the years.

5.  In or about 2008, Parties acquired House 9. There is no dispute that since acquisition until, at least, the presentation of the Petition herein, House 9 served as Parties’ home. Throughout the Proceedings, H appeared to take issue with the definition of House 9 as the “Matrimonial Home”. Whilst this is not fully understood, to maintain neutrality, I shall refer to House 9 as “House 9” in this Judgment.

6.  According to Parties’ Form E, the purchase price of House 9 was HK$45,000,000. House 9 is held through a corporate vehicle (“SBL”), in which Parties are shareholders.

7.  In or about 2018, House 9 underwent, in the words of W, a “grand renovation” (「豪裝」) to the tune of HK$12 million. During renovation, Parties moved out to a temporary residence (the “Temporary Residence”). These issues will be further elaborated and analysed hereinbelow.

8.  H moved out of House 9 on 28 July 2023. This is post- Petition. Since then, H has lived at a rented apartment in North Point, with rent at HK$10,000 per month.

9.  On 22 December 2022, H issued a Petition for divorce based on 2-years’ separation. H’s pleaded case is that Parties had separated “since about late 2016”, i.e. more than 2 years before the presentation of Petition for divorce.

10.  By H’s Amended Petition filed on 18 August 2023 (the “Amended Petition”), the date of separation was amended to “since about November 2020”. November 2020 is just over 2-years prior to the presentation of the Petition.

11.  By Summons dated 10 October 2024, H sought leave to re-amend the Petition (the “Re-Amended Petition”). Leave was granted by this Court to hear the Summons on Day 1 of the trial. The re-amendment was unopposed by W, and no consequential amendment of W’s Answer to Petition or filing of further evidence was sought. Leave to re-amend was therefore granted on 15 October 2024. Suffice it to say, the amendments do not concern the date of separation.

B.  APPLICABLE LEGAL PRINCIPLES

12.  The starting point is that there is only 1 ground of divorce, and that is that the marriage has broken down irretrievably: section 11 of the Matrimonial Causes Ordinance, Cap. 179 (“MCO”).

13.  Section 11A of the MCO sets out the 5 grounds on which one can prove that the marriage has broken down irretrievably. Of these 5 grounds, section 11A(2)(d) is of relevance. It provides:

“(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;”

14.  Section 11C(1) of the MCO elaborates on the concept of “living apart”:

“(1) … a husband and wife shall be treated as living apart unless they are living with each other in the same household.”

15.  In PLTO v KLK [2013] 2 HKLRD 1089, Cheung JA stated:

“51. Section 11C of the MCO expressly provides that ‘a husband and wife shall be treated as living apart unless they are living with each other in the same household.’ In the light of this provision, the starting point must be that if the parties were living in the same household they were not to be treated as living apart or separated unless the husband can establish that they were actually living as two households.”

16.  “Living apart” imports more than mere physical separation. In PLTO v KLK (supra):

“52. In Santos v Santos … The English Court of Appeal reviewed the earlier cases and held that … the phrase ‘living apart’ when used in a statute concerned with matrimonial affairs normally imports something more than mere physical separation. As to this additional element, it held that:

‘it must be an element capable of being unilateral: and it must, in our judgment, involve at least a recognition that the marriage is in truth at an end – and has become a shell…’

53. Sachs LJ … concluded that:

‘Therefore, ‘living apart’ … is a state of affairs to establish which it is in the vast generality of cases arising under those heads necessary to prove something more than that the husband and wife are physically separated. For the purposes of that vast generality, it is sufficient to say that the relevant state of affairs does not exist whilst both parties recognise the marriage as subsisting.’

…

56. In the more recent Northern Ireland case of Dooris v Dooris [2002] NI 121, the husband petitioned for divorce and relied on two years’ separation. The parties lived in the same household. The petition was dismissed on the ground that the necessary degree of separation between the parties had not been established, relying, among other things, on evidence that although the parties did not share the same bedroom and the husband had his own study in the house, the wife cooked the meals, cleaned the house and laundered the husband’s clothes and, furthermore, that the parties ate together, were on civil speaking terms, and that the husband paid all the household bills.”

17.  Mr Chang SC, who appeared with Ms Chiang for H, and Mr Wong SC, who appeared with Mr Lam for W, both helpfully referred the Court to Dooris v Dooris [2002] NI 4. Whilst I do not intend to recite the passages referred to in full, the following is a summary of the key points:

(1)  References to parties to a marriage living with each other shall be construed as references to their living with each other in the same household and as husband and wife.

(2)  It is not uncommon for parties, after they believe the marriage has irretrievably broken down, to remain living under the same roof.

(3)  The fact of separation provides evidence that the marriage has broken down irretrievably.

(4)  The words “living apart” are to be interpreted restrictively. There requires evidence that consortium was at an end during the whole of the period.

(5)  Where parties continue to live under one roof, the evidence must establish an absence of togetherness normally associated with living in matrimony and a separateness in parties’ conduct of their lives.

(6)  Relevant factors include not sharing and sleeping in the same bedroom, absence of marital relations, and dividing premises into areas into which the other does not stray.

(7)  Referring to Santos v Santos [1972] 2 AER 246, other factors may include not eating together, not cooking for one another, not shopping for one another, not socialising together, and not communicating with each other.

18.  In Rayden & Jackson on Divorce and Family Matters, 18^th Ed., Vol. 1(1), the learned authors had this to say on the concept of “living apart” at §9.57:

(1) “Living apart” does not exist so long as both parties bona fide recognise the marriage relationship as continuing.

(2) Sexual intercourse, dwelling under the same roof, society and protection, recognition in public and private, correspondence during separation may be regarded separately as indicia or elements the presence or absence of which go to show more or less conclusively that the marriage relationship does or does not exist.

(3) The weight of the above elements will vary with the health, position in life, and all the circumstances of the parties.

(4) It is open to one of the parties to decide to live apart and such decision need not be communicated by words or conduct to the other party. An “uncommunicated ending” of recognition that a marriage is subsisting can mark the moment when “living apart” commences.

See also W v H [2023] HKFC 224 per HH Judge G. Chan at §16.

19.  Pulling the threads together, the analysis boils down to a finding on the existence of separation and, if it so exists, the extent of separateness. There is no exhaustive list of factors which the Court ought to take into account. In cases like the present where parties still lived under the same roof, the basket of factors include the existence of marital relations, whether parties had meals together, did their laundry together, et cetera. It goes back to the concept of separate households. Aside from this, the Court may take into account other factors such as recognition of the marriage in public, et cetera.

20.  As to burden of proof, it was reasonably accepted by Mr Chang that, in the circumstances of this case where H claims to have separated whilst still living under the same roof with W, there is a heavy burden on the part of H to prove that there was indeed separation: c.f. PLTO v KLK (supra) at §58.

C.  PARTIES’ CASE

21.  H’s pleaded case per the Amended Petition is that the marriage has broken down irretrievably. He relies on 2-years’ separation from November 2020 to prove this. His factual case is in gist as follows:

(1)  In late 2016, Parties attended a dinner at W’s brother’s residence. During that dinner, there was an argument between the Parties. On that same night, W moved out from their bedroom and into a guest bedroom at House 9 (the “2016 Incident”). Parties have, since then, been separated.

(2)  Although Parties continued to live under the same roof, they lived in separate households. They occupied separate bedrooms, had no sexual intercourse, and did not dine together. It is also H’s case that they did not communicate with each other directly and had not socialised together.

(3)  H says that Parties no longer regarded themselves as a married couple.

22.  W, on the other hand, does not recognise that the marriage has broken down irretrievably. She believes the marriage to be subsisting and denies that Parties have conducted their lives in separate households. Her case in gist is that:

(1)  It has been the practice since the 1990s for Parties to sleep in separate bedrooms.

(2)  In or about April 2018, Parties jointly decided to renovate House 9. Throughout the process and course of renovation, there were discussions as a married couple. The very reason for renovation was for House 9 to serve as Parties’ retirement home.

(3)  During renovation, Parties moved out to the Temporary Residence, all aspects of which were arranged by W and in which Parties cohabited as a married couple.

(4)  W has always taken care of H’s daily life. Examples cited by W include making arrangements in relation to the driver and domestic helpers.

(5)  W would greet guests to House 9 as H’s wife and would be regarded as such by them, and H has never raised any objection to this.

(6)  Despite having moved out of House 9 on 28 July 2023, H remains an integral part of the household. W says H made arrangement(s) for W to pay utility bills, and it is W’s view that H would return to House 9.

(7)  H continues to participate and be employed in MFCL.

23.  As part of W’s case, apart from herself, she called 5 other witnesses. They are (1) a domestic helper of House 9, (2) 2 friends, (3) the personal assistant of W, and (4) a warehouse manager of MFCL. Their evidence will be further elaborated and analysed hereinbelow. For H, he himself was the only witness. Generally speaking, I find all witnesses to be generally truthful. As to W, I accept her evidence save to the extent identified hereinbelow.

D.  ANALYSIS

D1.  Material Period of Separation

24.  In W’s Closing Submissions, Mr Wong submitted that, given H’s evidence that Parties have separated since late- 2016, and that it is also H’s case that Parties’ relationship had been “static” since, absent any “triggering event”, the Court’s inquiry is simply whether the separation in late- 2016 took place.

25.  With all respect, for the following reasons, I do not accept the Court’s inquiry to be so limited.

26.  First, as correctly conceded by Mr Wong, this Court’s jurisdiction is quasi-inquisitorial in nature. The Court is entitled to grant a relief on a different basis than what has in fact been pleaded: see section 15 of the MCO, and TO v KO (2021) HKCA 1545 at §50. It is the duty of the Court to inquire into the issue of separation and whether such separation (if at all) meets the requirements under the relevant sections of the MCO, as cited above.

27.  Second, H’s pleaded case is that Parties have separated from November 2020. The complication, if it can be so considered, is H’s factual case and H’s evidence that Parties’ separation in fact predates the pleaded case, i.e. that Parties have separated since late- 2016.

28.  In my view, a finding of whether Parties were already separated in late- 2016 is neither here nor there. Even if the Court finds that Parties have not had the necessary degree of separation between late- 2016 to November 2020, it is no obstacle to the Court finding that there was separation for 2 years immediately prior to the date of the Petition. Only the latter is crucial to this Court’s determination of whether the marriage should be dissolved. This is the focus and material period (the “Material Period”).

29.  In the premises, whilst I will not lose sight of Parties’ relationship in the pre- November 2020 period, I take the view that this is not the focal point.

D2.  Parties’ Relationship Pre- November 2020

30.  But for the following intervening events, I would not hesitate to find that the necessary degree of separation has been established since late- November 2016.

31.  First, in H’s evidence, he stated that shortly prior to the decision to renovate House 9 in April 2018, W pled with H to start afresh, and, importantly, that H accepted W’s plea. It is also H’s evidence that W subsequently did nothing towards this “starting afresh”. Nevertheless, H’s acceptance in this regard has in any event broken the continuity in separation even if Parties had indeed separated prior to W’s plea. W does not accept that she pled with H. On this, I bear in mind all the relevant cases in relation to assessing credibility of witnesses (for example for example Hui Cheung Fai v Daiwa Development Ltd HCA 1734/2009 (unrep., 8 April 2014) at §§77-83.), and I much prefer the evidence of H in this regard. H’s answers on point were direct and did not waver throughout his evidence.

32.  Second, subsequent to the above, Parties decided to renovate House 9. This took place between April 2018 and early- 2019. The key features surrounding this renovation are:

(1)  The designer produced his draft drawings to both Parties, and they attended a meeting with the designer to discuss the same.

(2)  Both Parties approved of the draft drawings.

(3)  H’s request to keep the wooden dummy (「木人樁」) was taken on.

(4)  W’s request regarding the windows was also taken on.

(5)  House 9 is a property to which both Parties are beneficially interested.

(6)  The renovation was paid for with funds from companies in which Parties were shareholders.

33.  The decision to renovate, with Parties’ respective requests and preferences taken on, and the renovation paid for out of funds in which both Parties had a share, are indicators that there was no separation at the relevant point in time. The fact that these improvement works were related to Parties’ home is also significant. Had House 9 been an investment property, such decisions to renovate, even if jointly made, may have been less indicative.

34.  Third, during the time when House 9 was being renovated, Parties moved out of House 9 and in to the Temporary Residence. H admitted that W singlehandedly arranged the move, including seeking out and procuring the Temporary Residence, arrangement of movers, and moving H’s belongings. The fact that H moved in to the Temporary Residence together with W is also indicative and telling of Parties’ then matrimonial relationship.

35.  The same goes for when Parties moved back to House 9 after the renovations were completed. H permitted W to take care of him, at least in moving his belongings back to House 9, where Parties continued to reside.

36.  Fourth, the evidence of W’s witnesses, i.e. the friends of Parties, is all consistent in that H participated in gatherings at House 9 prior to the COVID-19 pandemic. As explored in closing submissions, this refers to the period before February 2020. This is socialising together in Parties’ own home and is also an indicator of their matrimonial relationship.

37.  Having considered all the circumstances, in particular the break in continuity mentioned above, I find that Parties were not separated since November 2016. Even if Parties did separate since November 2016, such separation has broken in continuity due to the above events.

D3.  Whether Parties Lived Apart During the Material Period

38.  As mentioned above, it is H’s case that W pled with H to start afresh, and H accepted W’s plea. There is no evidence from H, however, as to when he gave up on reconciliation.

39.  From the evidence, I find that the necessary degree of separation throughout the Material Period has been established for the following reasons.

40.  First, I take note that November 2020 (i.e. the start of the Material Period) is more than 2 years from the date when W pled with H to “start afresh”, and over 1 year after the renovation of House 9 was completed. I take the view that had Parties decided to start afresh, there would have been a change in their routines. There has not. This is one of the basket of factors I will take into account.

41.  Second, Parties occupied separate bedrooms during the Material Period. H says that he occupied the guest bedroom on 2/F, whereas W occupied the master bedroom on 1/F. As both rooms are ensuite, Parties did not share the use of a toilet.

42.  W does not agree that this is conduct indicating that Parties lived apart. Her case is that since the 1990s, Parties would sleep in separate bedrooms, and that put simply, this is just their way of life. She explained that this arrangement came about due to her busy schedule at work. Sometimes, work requires her to leave home in the early morning, and she would only return home late at night. She mentions that when overseas suppliers come to Hong Kong, she would have early conference(s). She would therefore sleep in another room to avoid disturbing H’s sleep. Pausing here, I take the view that even taking W’s evidence to its highest, it still does not explain why Parties occupied separate bedrooms for settled purposes.

43.  In cross-examination, W did not expressly deny that Parties occupied separate bedrooms. Her evidence was that she “does not remember” the last occasion on which she slept in the same bedroom as H. She repeated time and again her busy schedule at work as mentioned above. In W’s evidence, she also said that she would go and enjoy H’s room when H is not in Hong Kong.

44.  I find W’s evidence on point evasive. She avoided giving a straight answer to the question of whether Parties slept in the same bedroom. If Parties’ practice was that they slept separately due to work commitments, she could simply agree and justify it with her explanation. She did not.

45.  Further, as part of W’s case, W produced photographs of H’s room. From these photographs, it is apparent that H’s belongings, toiletries, and everyday necessities are placed in H’s room. Under cross-examination, W also accepted this to be true, and there is no contention that H’s belongings were also placed in W’s room. It is quite obvious that Parties did not share the same bedroom or toilet. It is also obvious that Parties occupied separate bedrooms and toilet in a settled way. It appears that parts of House 9 were divided into separate areas in which the other spouse did not stray.

46.  According to the domestic helper’s evidence, Parties began to sleep separately in 2015. She believes this to be due to Parties’ differences in sleeping and daily habits. As to this latter part of her evidence, I attach minimal weight given it is her speculation. It is not her evidence that she was told of this, or had any part in deciding this.

47.  Further, despite being W’s witness, the domestic helper’s evidence, however, is out of tune with W’s case. W’s case is that Parties slept separately since the 1990s, not 2015. Be that as it may, what is confirmed is that Parties did occupy and sleep in separate bedrooms during the Material Period.

48.  Second, it is H’s case that at least during the Material Period, Parties have otherwise lived in separate households while living under the same roof. He contends that Parties went to work and returned home separately and ate all their meals separately. There was no communication in private, and work-related communication, if any, was done through staff.

49.  Under cross-examination, H further elaborated that although he would use communal facilities like the living room and kitchen in House 9, he did not use them together with W. H however accepts that household chores like laundry and dish washing were done by the domestic helper. H further says that he would buy his own food (「自己買自己」) and that since 2016, W has not cooked for him. At times, he would cook for himself, and other times the domestic helper would assist. He however accepts that at times, he would consume food and drinks not bought by him. To use Mr Wong’s examples, at times H would take soft drinks or a piece of pastry from the kitchen, even though he himself did not buy them.

50.  As to communicating with each other, the occasions explored in cross-examination was in relation to the renovation in 2018. There is no contention that there was any direct communication between the Parties throughout the Material Period. Even when H moved out in July 2023, W did not ask H when or if he will return.

51.  W’s case that Parties continued to live in a single household is based mainly, in this regard, on the contention that she made arrangements for the domestic helper(s) and chauffeur to take care of H. She does not contend that she has personally cooked for H, done his laundry, or done other household work for H.

52.  In my view, the fact that Parties’ relationship has come to the point of H buying his own food and not talking to each other are highly indicative that Parties lived in separate households. This is reinforced by the fact that there is no dispute Parties did not dine together (save and except socialising, as W contends and which would be analysed below). The fact that H still utilised the help of domestic helper(s) is neither here nor there. These are, in H’s words, the perks and benefits of living in House 9. I agree. I do not find the continued use of domestic helper(s) or other household staff to be indicative of a relationship of matrimony.

53.  Third, W makes a point that Parties shared expenses in House 9, in that W would pay for the staff salaries and buy groceries, whereas H would pay for the management fees and utilities bills.

54.  The issue of groceries has been analysed above. I will not repeat the same here.

55.  As to other expenses of House 9, according to the evidence, this has always been the practice of Parties even prior to the Material Period. The fact that H did not cease paying his share is neither here nor there, nor is it indicative of Parties having lived in the same household. After all, H continued to live at House 9 and I consider that it is only fair for him to pay a share of the such expenses. I do not find the fact that H continued to pay part of such expenses to be indicative of a relationship of matrimony.

56.  Fourth, W says that whenever friends and relatives visit House 9, Parties would entertain guests as a couple. W says that even during the Material Period, this has not changed.

57.  On this, H categorically denies having attended or participated in these gatherings. It is H’s case that these gatherings are hosted by W, not H, although the attendees are acquainted, too, with H.

58.  Under cross-examination, W stated that she again “does not remember” if H attended any such gatherings at House 9 post- 2016. She said that H did greet guests (「有打招呼」). When asked, W could not specify any incident where H invited guests to House 9.

59.  Pausing here, I do not find that H greeting guests, even if true, to be indicative of a matrimonial relationship. These guests are, after all, also acquaintances of H. This is just a matter of simple courtesy. It does not indicate the existence of a marital relationship.

60.  In the evidence of the domestic helper, she stated that there was no gathering at House 9 during the COVID-19 pandemic period. When asked when the last time H was present when a gathering was hosted at House 9, the domestic helper could not recall – not even the year.

61.  Mr Chung, a friend of the Parties, gave evidence. In his witness statement, Mr Chung says that prior to H’s moving out in July 2023, Parties had every now and then invited him to House 9 for meals. In cross-examination, Mr Chung stated that he could not recall, whether the year or date, the last time H was seen at House 9 during gatherings. He confirmed that there was no gathering during the COVID-19 pandemic period. Mr Chung, however, did say that prior to COVID-19, H was present at gatherings, just that he could not recall the dates.

62.  Mr Chan, another friend of the Parties, gave evidence. In his witness statement, like Mr Chung, Mr Chan says that prior to H’s moving out in July 2023, Parties had every now and then invited him to House 9 for meals. In cross-examination, Mr Chan said that he rarely saw (「少見」) H in the post- COVID-19 period in these gatherings, and that post- COVID-19, even when H appeared at House 9, he would simply greet them (「打個招呼」). Further, Mr Chan was able to recall 1 occasion in the first half of 2023 where there was a gathering and H appeared at House 9. However, the evidence on the extent of H’s participation is unclear. In the latter parts of Mr Chan’s evidence, he said that pre- the COVID-19 pandemic, H participated and dined with them. He does not say the same about the post- COVID-19 period. In any event, I take the view that given both Mr Chan and Mr Chung are acquaintances of H, it is not indicative of a relationship of matrimony if H is to greet them, or to have a chat with them. Quite to the contrary, one cannot seriously expect H to ignore these visitors in the circumstances as said.

63.  Thus, while I bear in mind the burden of proof to be on H in establishing that Parties lived in separate households, the fact is that none of the witnesses could pinpoint when H last participated in these gatherings above and beyond the simple courtesy of extending a greeting, or had a meal together. Whilst H’s case that he had not participated since 2016 is contradicted by the above evidence, there is also no evidence that H did participate, above and beyond greeting the guests, in these gatherings.

64.  Fifth, under cross-examination, W accepted that Parties had not celebrated each other’s birthday(s) together since 2016, nor had Parties gone on holiday together since 2016. It is also W’s evidence that Parties did not celebrate Christmas together since 2016. Contrastingly, it is also W’s evidence that this was not the case prior to 2016. Whilst 2016 is beyond the Material Period, the fact that Parties had not celebrated any of the above during the Material Period, I consider, is a strong indicum.

65.  Sixth, Mr Wong submitted that the absence of sexual relations is not indicative of Parties having lived apart. Whilst sexual relations is of course one of the basket of the factors, bearing in mind the context of this case, such as the Parties’ age – as suggested by Mr Wong – and the length of marriage, I agree. I therefore place no weight on the fact that Parties have not had sexual relations during the Material Period.

66.  Seventh, as part of W’s case, she called a warehouse manager of MFCL to give evidence. His evidence is largely that he has not observed any change in Parties’ relationship and interaction whether before 2020 or after. Likewise, W’s personal assistant gave similar evidence.

67.  Whether a third-party and colleague had observed any change in Parties’ relationship is neither here nor there. After all, H remains involved in the business of MFCL, and any interaction (even if there is any) is hence inconclusive. Moreover, neither of these witnesses stated that there were direct communications between the Parties or any other factors indicative of a matrimonial relationship.

E.  CONCLUSION

68.  In his closing submissions, Mr Wong submitted that a distinction is to be drawn between an unhappy marriage and one where parties have lived apart in the legal sense. The former does not call for the marriage to be dissolved, unlike the latter.

69.  Whilst I appreciate the distinction, I am unable to agree that the above factors point simply to an “unhappy marriage”. It is clear that during the Material Period, there was simply no consortium. Contrarily, I fail to see how Parties could be said to have lived in matrimony. The extent of separateness is obvious. Parties conducted their lives independently of each other. There is no question that Parties lived apart in the legal sense, no matter how restrictively one is to interpret this concept.

Order

70.  Therefore, having considered all the circumstances of the case and the totality of the evidence, I find that H has proven the requisite degree of separation during the Material Period, and despite having lived under the same roof, Parties lived in separate households and have lived apart.

71.  On this basis, I find that Parties’ marriage has broken down irretrievably.

72.  I grant a decree nisi for dissolution of the marriage. The Court is also satisfied that there are no children of the family to whom section 18 of the Matrimonial Proceedings and Property Ordinance, Cap. 192, applies.

73.  I further direct that Parties shall restore the First Appointment on ancillary relief matters as soon as practicable.

74.  As to the question of costs, I see no reason why costs should not follow the event. I make an order nisi that W shall bear H’s costs of the main suit, including all costs reserved, with certificate for counsel, to be taxed if not agreed.

Costs

75.  This costs order nisi shall become absolute unless any party applies to vary the same within 14 days from the date of this Judgment.

76.  I thank counsel for their able assistance.