Cle v Ece

Court:Family Court (Hong Kong)
Judgement Number:FCMC6498/2003
Judgment Date:15 Nov 2004
FCMC006498/2003 CLE v. ECE

FCMC 6498 of 2003

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES

NUMBER 6498 OF 2003

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BETWEEN

  CLE Petitioner
  and  
  ECE Respondent

_________________

Coram : Her Honour Judge Chu in Court

Date of Hearing : 7 & 8 October 2004

Date of Delivery of Judgment : 15 November 2004

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J U D G M E N T

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1. This is a defended divorce suit.

Brief Background

2. The Respondent has been living in Hong Kong since about 1991. The parties met when the Respondent was on holiday in Cebu.

3. The Petitioner and the Respondent were married on 15th July 1999 in Cebu, Philippines.

4. There is one child of the family namely a girl born on 1st November 1993 out of the Petitioner’s previous relationship with another man. However, following the parties’ marriage, the Petitioner and the Respondent have treated the girl as a child of the family (“the Child”). Following the marriage to the Respondent, the Petitioner and the Child moved to Hong Kong on about 23rd August 1999 to live with the Respondent.

5. Since the parties’ marriage, the Respondent has been solely responsible for the financial support of the Petitioner and the Child.

6. It appears that he parties’ relationship began deteriorating in early 2003, according to the Petitioner, as a result of which, the Petitioner presented a divorce petition on 6th June 2003 alleging that the marriage has broken down irretrieverably based on the fact the Respondent has behaved in such a way that she cannot reasonably be expected to live with him.

7. Essentially the Petitioner’s petition is based on three areas of complaints : -

(1) The Respondent’s late home coming and frequent absences from home.

(2) The Respondent’s improper conduct with another woman.

(3) The Respondent’s campaign to exert financial pressure trying to drive the Petitioner and the Child back to the Philippines.

(1) and (2) are in a way related.

8. The Respondent represented himself and filed a “Response to the Petition” on 3rd September 2003 alleging that the petition was without merit and asked for it to be dismissed. Although in the Response the Respondent said he feared that the marriage has broken down, in Court, the Respondent has denied the same.

9. The Respondent explained, inter alia, that his coming home late and his absences from home were due to his work and there was a lack of communication between the parties since 2002 and his act in sending the Petitioner a note in April 2003 with the words he wanted a divorce was a means of trying to get her attention that something was going wrong with their relationship. He denied having exerted any financial pressure on the Petitioner.

The law

10. As set out in s. 11 (A) (2) of the Matrimonial Causes Ordinance, “the Court hearing a petition for divorce shall not hold the marriage to have broken down irretrievably unless the petitioner satisfies the Court of one of more of the following facts : -

(a) that the respondent has committed adultery and the petitioner finds it intolerable to live with the respondent.
(b) that the respondent has behaved in such a way that the petitioner cannot reasonably be expected to live with the respondent.
(c) that the parties to the marriage have lived apart for a continuous period of at least one year immediately preceding presentation of the petition and the respondent consents to a decree being granted.
(d) that the parties to the marriage have lived apart for a continuous period of at least two years immediately preceding the presentation of the petition.
(e) that the respondent has deserted the petitioner for a continuous period of at least one year immediately preceding the presentation of the petition”.

11. As submitted by the Petitioner’s solicitor, Mr Firmin, the burden of proof is on the Petitioner to satisfy the Court, on a balance of probabilities, that the Respondent has behaved in such a way that she cannot reasonable be expected to live with him. The test is an objective one referable to this particular Petitioner and this particular Respondent.

The parties’ evidence

12. The Petitioner attended Court to give evidence.

13. The Petitioner said that prior to April 2003, the Respondent was paying her $1,500 a week and out of that she was buying food for the Respondent, food for herself and the Child and also some was to cover her personal expenses. She said the sum of $1,500 per week was not sufficient but on occasions when she needed more money, she would ask the Respondent. Although the Respondent would give her more money, he would be angry. She gave evidence that during the period from April 2003 to 19th July 2003, she only received a total of $2,300, as a result of which she had to apply for Comprehensive Social Security Assistance (“CSSA”) and also instructed her solicitors to apply for maintenance pending suit for her. This led to a maintenance pending suit order made on 7th July 2003 by which Respondent has to pay her $7,000 a month. She is still receiving CSSA and the money paid by the Respondent has to be paid to the Social Welfare Department and also there is a charge thereon by the Director of Legal Aid for her legal costs.

14. The...

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