C v L

CourtFamily Court (Hong Kong)
Judgment Date18 January 2002
Citation[2004] 2 HKLRD 1
Subject MatterMatrimonial Causes
Judgement NumberFCMC7268/2000
FCMC007268/2000 C v. L

FCMC007268/2000

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES

SUIT NO. 7268 OF 2000

_________________

BETWEEN
C Petitioner
AND
L Respondent

_________________

Coram: H.H. Judge Bruno Chan in Chambers

Date of Hearing: 17 January 2002

Date of Delivery of Judgment: 18 January 2002

_________________

J U D G M E N T

_________________

1. This is the hearing of the Respondent Wife's application to stay the Petitioner Husband's divorce proceedings on the ground that their marriage has already been dissolved in Singapore. The Petitioner has also taken out several applications including striking out the Acknowledgment of Service (Form 4) filed on behalf of the Respondent, and for custody of the children of the family which he would like me to deal with in the event that I refuse the Respondent's stay application. For convenience purpose I shall refer to the parties as Husband and Wife in this judgment.

2. The parties were married on 16th December 1989 in Hong Kong. Both were then residents in Hong Kong, with the Husband working as a medical doctor in the civil service, whilst the Wife was a certified public accountant. They have 3 children, all daughters now between 4 and 8 years of age. In 1996 the Husband left his job with the government to set up his own private practice. However he closed down his clinic 2 years later due to poor business and in May 1999 the family emigrated to Singapore.

3. Despite the move to a new environment their marriage could not last and after an incident between the parties which required police intervention, the Wife filed for divorce against the Husband on 6th July 2000 under Divorce Petition No. 2100 of 2000 in the High Court of Republic of Singapore on the ground of his unreasonable behaviour, and for the custody of their 3 children and ancillary relief including periodical payments for herself and the children as well as a determination of her interest in the former matrimonial home in Shatin, Hong Kong. Shortly after being served with the divorce papers in Singapore, the Husband returned to Hong Kong where he has since remained.

4. On 2nd August 2000 the Husband instituted the present proceedings in Hong Kong by issuing a petition for divorce based on the Wife's unreasonable behaviour in which he also prayed for custody of the 3 children and an order extinguishing the Wife's interest in their said Shatin property which is registered in the parties' joint names. He also in mid-August 2000 sent an application to the Singapore Court to dismiss the Wife's proceedings and an answer to her petition, but as he never returned to Singapore to prosecute his applications, it is believed that they have been dismissed by the Singapore Court.

5. On 14th September 2000 the Husband served his divorce papers on the Wife by post to her last known address in Singapore. On 26th September 2000 the Wife applied for Legal Aid in Hong Kong. On 26th November 2000 Legal Aid was granted to her for the purpose of applying to stay the present proceedings. Before the Husband could set his petition down for hearing in the uncontested list, the Wife's assigned solicitors filed her summons for stay on 12th February 2001. The supportive affidavit of her solicitor Mr Bough filed on behalf of the Wife on 19th February 2001 revealed that a decree nisi of divorce was already granted by the Singapore Court to her on 8th September 2000, and that on 19th January 2001 custody of all 3 children was also granted to her with reasonable access to the Husband. In the same order the Husband was also ordered to pay Singapore S$250 per month for the maintenance of the Wife and S$750 per month for the children, and that the said Shatin Property be sold with the net sale proceeds be divided equally between the parties. Finally the Husband was ordered to pay the Wife's costs of S$1,000. In the affidavit were exhibited copies of the Wife's divorce papers including the said decree nisi of divorce and orders. On both occasions the orders were made in the absence of the Husband.

6. As the hearing of the stay application on 9th March 2001 which was only set down for 3 minutes, the Husband indicated that he wished to challenge the validity of the decree nisi granted to the Wife as it was merely an unsealed copy and that he wished to oppose the application on the ground that it would be more convenient or practical for the Court in Hong Kong to deal with the divorce proceedings between the parties. The hearing was therefore adjourned for argument.

7. The parties have since filed more affidavits in support of their respective case. The Husband has also filed several more applications, some for the striking out of the Wife's Form 4 and for her solicitors to file another Notice to Act as the 1st one filed by them did not properly state their address, others for custody of the children and for an order for them to be brought back to Hong Kong to be put under his care and control. All these applications were subsequently consolidated for hearing together with the Wife's stay application.

8. As the Wife was unable to come to Hong Kong for the hearing, all her evidence were presented by affidavits filed by her solicitor Mr Bough on her behalf. Although the Husband did question whether the Wife, who is now a resident in Singapore, is entitled to Legal Aid in Hong Kong for which he also questioned the capacity of Mr Bough to act for the Wife, I have no doubt that the Legal Aid Certificate granted to the Wife is valid upon which Mr Bough has full capacity to represent the Wife in these proceedings, a matter which has been verified by a letter from the Director of Legal Aid to the Husband in answer to his queries. Whether the Wife should be entitled to Legal Aid in Hong Kong in the first place is not really a matter that should concern me, nor should it have any effect on the validity of the evidence presented on her behalf.

9. The first matter that I should consider is naturally the Wife's stay application in particularly whether the parties' marriage has indeed already been dissolved in Singapore. I have now been shown the certified true copy of the decree nisi of divorce granted to the Wife on 8th September 2000 by a District Judge of the Subordinate Courts of the Republic of Singapore, which was filed on 2nd November 2000 and the copy before me was certified and sealed by the Registrar of the Subordinate Courts on 21st August 2001 presumably for the purpose of its production in these proceedings.

10. I also have the certified copy of the custody and ancillary relief order granted to the Wife on 19th January 2001 by another District Judge of the same Subordinate Courts of Singapore which was certified and sealed by the same Registrar. Lastly but most importantly of all, there is now before me a sealed and certified true copy of the Certificate making the decree nisi of divorce absolute on 2nd May 2001. At the Husband's request, I have examined all 3 documents with care and I have absolutely no reason to doubt their authenticity. I also find that they are admissible as evidence in these proceedings under S 31 of the Evidence Ordinance, Cap 8. Any procedural irregularity or invalidity complained by the Husband of the Wife's divorce proceedings...

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