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Evelina Fun Lindsay v Derek Victor Lindsay

Judgment Cited in Precedent Map Related
Vincent
Judgment Date16 September 1983
Year1983
Judgement NumberFCMC1569/1982
Subject MatterMatrimonial Causes
CourtFamily Court (Hong Kong)
FCMC001569/1982 EVELINA FUN LINDSAY v. DEREK VICTOR LINDSAY

FCMC001569/1982

Behaviour. Husband did not gratify wife's sexual needs and deprived her of the opportunity to have children. Detrimental effect on wife's health not proved nevertheless held husband has behaved in such a way Petitioner cannot reasonably be expected to live with him.

2 Irretrievable break down of marriage can occur when one party does not wish to reconcile despite other parties' genuine desire to effect reconciliation.

Note to Reporter - if published suggest case be known as L. v. L.

IN THE DISTRICT COURT OF HONG KONG

HOLDEN AT VICTORIA

DIVORCE JURISDICTION

ACTION NO. 1569 OF 1982

_________________

BETWEEN

EVELINA FUN LINDSAY

 Petitioner

and

DEREK VICTOR LINDSAY

 Respondent

__________________

Coram: H. H. Judge Caird in Court

Date: 16.9.83

-----------------------------

JUDGMENT

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1. The parties were married in Hong Kong on the 27th of March 1975 and the Petitioner now claims that the marriage has broken down irretrievably. The fact upon which she relies on to support this is that she cannot reasonably be expected to live with the Respondent. There follows a number of specific instances pleaded in the petition.

2. The Respondent defends and it is manifestly clear that the reason for his defending is his sincere and earnest desire for reconciliation.

3. Prior to the marriage the parties cohabited together for some two months during which time they enjoyed satisfactory sexual relations with each other. This was common ground.

4. The Petitioner went on to describe events subsequent to the marriage, commencing with the honey-moon during which period she claimed that intercourse occurred only on some four occasions. Respondent in his evidence during cross-examination said "4, it may be 14" but he certainly did not seriously dispute Petitioner's allegation.

5. May I say at the outset that where Petitioner has given details of the lack of or unsatisfactory aspect of sexual relations pertaining between the parties, subsequent to marriage, I, in view of Respondent's evidence, accept her evidence.

6. Petitioner bases her complaints as to sexual matters under two heads: (a) Lack of frequency of sexual relations and (b) when sexual relations did occur these would, if not always, almost inevitably be marred by the Respondent practising "coitus interruptus."

7. Petitioner gave evidence as to her younger sister suffering from Downes Syndrome, this in response to a question from the Legal representative of Respondent. It appeared from Petitioner's evidence that Respondent did not want children and in this regard I think it is of significance that at the time of marriage, Petitioner was aged 27 and at the time of hearing of the petition she is aged 36, some 9 years having passed without her having borne a child.

8. I am completely satisfied that the Petitioner had an earnest and reasonable desire (and I am moderate in my choice of language in this regard) to have a child or children.

9. The Respondent gave evidence and it is of interest that in his closing address Mr. Pilbrow submitted that the Respondent was a "proud and callous man" I reject that submission totally, for reasons which will become apparent. I believe and find Respondent to be an honourable man, a former officer and still a gentleman and indeed in giving his evidence he displayed considerable courage and humanity in conceding his sexual inadequacy dating from the time of their marriage, an inadequacy which as I have earlier referred to, was not manifested in any way in the 2 months leading up to their marriage.

10. In Paragraph (B) of the particulars, the Petitioner states as follows:

"Throughout the marriage the Respondent has for the most part shown no affection or tenderness to the Petitioner......."

I reject this as I reject all other aspects of Petitioner's evidence which consists of complaints against her husband other than those matters relating to lack of sexual activity or unsatisfactory sexual relations to which I have already alluded. Respondent gave up a great deal upon his marriage. He gave op a commission in the RNVR; because his wife's nationality and/or race, meant she was not acceptable as a security risk. I accept his evidence in this regard. He has sold out his United Kingdom interests and purchased property in Australia because his wife likes to visit Australia where her parents live. Incidentally he expressed a liking for his wife's parents. Further, he has given up holidays in Europe where he would prefer, rather than holiday in Australia every year.

11. There was some convincing evidence given by Respondent when I put to him the quotation from Paragraph (B) referred to above. He replied giving three examples. First, that every night that they slept together his wife slept with his arts around her. Second, when they went out together they went hand in hand. Third, that every morning during their married life he cooked and brought her breakfast in bed. He gave other evidence saying that to outsiders theirs appeared to be the perfect happy marriage. I believe him.

12. The Petitioner painted a different picture of the marriage however this was contradicted to some extent by evidence corroborating the evidence of the husband that is a number of letters written by the wife to the husband after the wife ceased to reside with him (She having left the matrimonial home whilst he was absent in China on business). There was also a Christmas card unsigned but in an envelope being handwriting identified by Petitioner as being hers. These letters showed a degree of affection and tenderness that had existed at least in the past and I think the Petitioner at the time of writing felt a great degree of affection still continuing. In any event they, as I have said earlier, corroborated Respondent's evidence.

13. There were allegation of temper and violence laid against Respondent. He when cross-examined by Mr. Pilbrow as to whether he had ever assaulted his wife said that if "restraint were to be considered an assault then yes". I accept the answer of Respondent and hold that whenever he has used force upon his wife this has been in the form of restraint.

14. In rejecting the wife's evidence on the matters that I have discussed beforehand I take into account not only the Petitioner's evidence and the letters to which I have already referred to but in particular her own demeanour, particularly at the outset of her giving evidence, the taking of the oath was I thought a perfect example of overacting, this of course in some instances, can be brought about by emotions of the moment and I have considered this possibility. I believe that the wife has exaggerated on a number of occasions in her evidence although never when she dealt with sexual aspects.

15. The wife denied having sexual relations with any other man since leaving her husband. I believe her in this regard. But the husband gave evidence in response to this saying that the wife had informed him that she had been sleeping with another man. I believe the husband but it is my view that this has merely been a taunt thrown by the wife at the husband.

16. As can be seen from the facts as I have found them, this marriage has been fraught with difficulty. Possibly part of this has been due to the fact that Respondent has had two previous marriages and that there was a considerable age difference between the parties, the Respondent being some 19 years older than the Petitioner. Of course there is the fact that this was a mixed marriage which in itself may have led to some tension. There is no doubt but that there were quarrels between the parties particularly early in the marriage when they went an "an around the world journey" with another couple. The Petitioner did not get on well with this couple nor did she get on well with another couple, where the husband was a colleague of Respondent. She may not have been sociable when placed in a western environment but these quarrels would not in my opinion have brought about any breakdown in the marriage without the sexual problem experienced by the parties.

17. I have no hesitation in determining that the wife has been deprived of the joys of motherhood by Respondent's unwillingness to have a child and further I am in no doubt that the wife has experienced considerable frustration by the husband's lack of sexual interest in her despite the tenderness shown by him to which I have earlier adverted, which was obviously reciprocated by her in their manner of sleeping and their manner of going out hand in hand and in her letters to him.

18. I turn to consider the legal aspects.

1. SUBJECTIVE OR OBJECTIVE APPROACH

19. I am indebted to Mr. Pilbrow for furnishing me with a relevant passage from Raydon and in particular a copy of the decision O'Neill v. O'Neill(1).

20. As Raydon puts it:

"The words 'reasonably be expected' prima facie suggest an objective test. Nevertheless, in considering what is reasonable, the Court (in accordance with its duty to inquire, so far as it reasonably can, into the facts alleged will have regard to the history of the marriage and to the individual spouses before it, and from this point of view will have regard to this petitioner and this respondent in assessing what is reasonable: allowance will be made for the sensitive as well as for the thick-skinned; or, as it used to be put in cruelty cases, the conduct must be jedged up to a point by reference to the victim's capacity for endurance and in assessing the reasonableness of the respondent's behaviour the Court would consider to what extent the respondent knew or ought reasonably to have known of that capacity."

O'Neill v. O'Neill is of interest and at page 292 Lord...

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