Cle v Ece

Judgment Date15 November 2004
Subject MatterMatrimonial Causes
Judgement NumberFCMC6498/2003
CourtFamily Court (Hong Kong)
FCMC006498/2003 CLE v. ECE

FCMC 6498 of 2003




NUMBER 6498 OF 2003



  CLE Petitioner
  ECE Respondent


Coram : Her Honour Judge Chu in Court

Date of Hearing : 7 & 8 October 2004

Date of Delivery of Judgment : 15 November 2004




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 Petitioner said that the Respondent went away on about 9th May 2003 and returned home only after about one week without telling her where he had been. He then went away again on about 4th July 2003, just before the hearing of the maintenance pending suit.

15. The Petitioner gave evidence that since early 2003 the Respondent started to often arrive home late and sometimes would only return home the next morning. She said that she was not aware of whether he was working since he did not tell her nor did he call her. When he stayed out overnight, he would return home at about 6 am the next morning and would take a bath, change clothes and would go out again.

16. She said when the parties’ relationship was good, when the Respondent returned home late or early following morning after work, he would spend time at home and would sleep in the morning before going out again but since about April 2003 when the Respondent returned home early morning the next day, he did not appear exhausted and she had the impression that he had already slept elsewhere.

17. The Petitioner claimed that she had seen the Respondent with a Filipina woman on five occasions as follows : -

(i) The first occasion was when the Respondent was with the woman in ParkN’ Shop at South Horizons, they were spotted by the Petitioner’s friend who telephoned the Petitioner. When the Petitioner arrived at the ParkN’ Shop, she saw the Respondent with a woman who was a Filipina and was of medium height. The Petitioner said she was shocked and she walked away as she said that she could not bear to see them.
(ii) The next occasion was about one week following the first occasion, the Petitioner saw the Respondent waiting downstairs outside the building where the parties live. She saw the Respondent sitting in his car with the same woman whom she saw at ParkN’ Shop and they were sitting waiting in the car for about half an hour for the Respondent’s friends and eventually his friends appeared and boarded the Respondent’s car.
(iii) The third occasion was about another week from the second occasion. The Petitioner said she went to her friend’s flat which is opposite the Newton Hotel in North Point and she saw the Respondent with the same woman outside the Newton Hotel.
(iv) After this occasion, about a week later, she again went to her friend’s

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