Hannelore De Lasala v Ernest Ferdinand Perez De Lasal

CourtHigh Court (Hong Kong)
Judgment Date14 February 1976
Judgement NumberHCMC14/1970
Subject MatterMatrimonial Causes




ACTION NO. 14 OF 1970




Coram: Huggins, J.

Date of Judgment: 14th February 1976.




1. I gave an immediate ruling on the issues in this case as it seemed to be in the interests of the parties that I should not reserve judgment, as I would have liked to do. I gave an outline of my reasons but said that I would deliver full reasons in due course.

2. By a summons dated 1st August 1975, a wife, to whom a decree absolute of divorce was granted on 30th May 1970, applied to set aside or vary a consent order dismissing her prayers for financial provision for herself and a child of the marriage and also applied for orders for such financial provision. On 19th January 1976 the summons was, by leave, amended to include an application for variation of the financial arrangements contained in three deeds. This ruling is concerned with objections to my jurisdiction to hear any of these applications.

3. For present purposes it is necessary to record only part of the history of what has transpired between the parties. The wife lodged a petition for divorce in which she made allegations which the husband indicated he would contest. In a letter dated 11th December 1969 his solicitors further indicated that, if the custody and financial arrangements which they set out were acceptable to the wife and if she would petition for a divorce solely on the ground of adultery, the husband would not defend that petition or cross petition. The wife was agreeable and on 16th January 1970, by consent, Briggs, J. (as he then was) gave leave to file a further petition and to implement the financial arrangements, which were then contained in a Deed of Arrangement exhibiting two draft Trust Deeds. Pursuant to the leave granted a second petition was presented on 23rd January 1970, the prayers, including those for financial provision, being identical to those in the first petition. On 25th March 1970 the first petition was dismissed by consent and on 23rd May 1970 Briggs, J. granted a decree nisi of divorce on the second petition and adjourned into chambers the matter of the maintenance and welfare of the child. On the same day the judge, by consent, made orders for custody and access, approved the Deed of Arrangement and ordered that upon the payment of the moneys agreed to be paid by the Deed of Arrangement and upon the two Trust Deeds' coming into force the prayers for financial provision should stand dismissed. The moneys were paid, and the Trust Deeds came into force on 30th May 1970, the date on which the decree of divorce was made absolute.

4. Mr. Jackson seeks to avoid the express terms of the agreements in various ways:

(1) He submits that the arrangement between the parties was contrary to public policy and to statute in so far as it purported to deprive the wife and child of the right to make any further application to the court.
(2) He attacks the order as having been made without the necessary evidential foundation.
(3) He asks for an additional order under s.6 of the Matrimonial Proceedings and Property Ordinance.
(4) He further attacks the order as having been made without the child's having been separately represented.
(5) He asks that the order, if valid, should be set aside on the ground of mistake, or varied under s.15.

5. The substance of the first argument is that an agreement by a wife not to make a further application for maintenance was void and that Briggs, J. had no jurisdiction to make a consent order dismissing the prayers for maintenance as part of such a compromise. As I understand this argument it invited me to treat the order of dismissal as a nullity, but I think it was also suggested that even if the order was not a nullity it was not a bar to a further application. This is a distinction which may have some importance. The basic rule was laid down in Hyman v. Hyman 1929 P. 1 that a separation agreement which provided that the wife would not compel the husband to allow her any alimony or maintenance further than a specified weekly sum did not bar a claim for permanent maintenance after a decree nisi of divorce had been pronounced. Lord Hanworth, M.R. said at p.28:

"The Court cannot forego its duties, and it cannot be bound by an estoppel between the parties: 'for the jurisdiction in matters of divorce is not affected by consent. ......'".

What is now s.14 of the Matrimonial Proceedings and Property Ordinance was enacted to save any financial terms in a compromise agreement, while confirming that a term which purported to oust the jurisdiction of the court should be void. The equivalent English provision is not mentioned in the report of L v. L 1962 P. 101 and that is one factor upon which Mr. Jackson relies for submitting that that case, which he admits is directly in point, was wrongly decided. In addition he cites Australian cases which point to an apparent weakness in the reasoning of the Court of Appeal in L v. L and invites me to follow them. We are, of course, enjoined to follow the decisions of the Court of Appeal in England in the interpretation of colonial statutes which are identical to Acts of the Imperial Parliament: Trimble v. Hill (1879) 5 App. Cas. 342. Whilst I have said before that we should not follow that court's decisions blindly (CHAN Wai-keung v. Reg. 1965 H.K.L.R. 815), where the interpretation of a statute depends, as it does here, upon the context of that statute in a pattern of relevant legislation and practice which is similar in Hong Kong and in England the decisions of the English courts are of special value, whilst the interpretation of an identical statute in another jurisdiction may be positively misleading. It must be remembered that by virtue of s.6 of the Supreme Court Ordinance the English practice is followed in Hong Kong in the absence of local provision which conflicts with it. However, assuming for the moment that there is substance in the Australian judges' criticism of the reasoning in the English case, I think Mr. French is right when he submits that that does not destroy the basic principle on which the decision was founded but only an alternative ratio decidendi. The first line of reasoning has clearly been established as good law in England.

6. In L v. L the facts were that a prayer for maintenance under the Matrimonial Causes Act 1950 was by consent dismissed. Subsequently the wife sought an order for maintenance and it was held by the Court of Appeal that there was no jurisdiction to entertain a fresh application. The substantial ground was that only one application was contemplated by the Legislature. Wilmer, L.J. said at p.117:

"In my judgment, once an application for maintenance has been dismissed by the court, jurisdiction does not exist to entertain a fresh application".

At that time the application had to be made "on making a decree", which was interpreted as meaning at the same time as the granting of the decree or within a reasonable time thereafter: Mills v. Mills 1940 P. 124, 129. It follows that if an application were dismissed that put an end to any right to claim maintenance, whilst if an order for maintenance was made it could always be varied. That led to the practice in England of making orders for a nominal sum instead of orders for dismissal, so that the right to claim should be preserved. In the State of Victoria the legislation allowed more than one application to be made and a dismissal was therefore not final. Subsequently the words "or at any time therefore" were added to the English provision, but it was held that that did not permit a second application but merely extended the time within which a single application could be made. That was so even where a first order was made under the equivalent of our s.4(1)(c) for the payment of a lump sum despite the fact that that paragraph expressly referred to "a lump sum or sums": Coleman v. Coleman1973 Fam. 10. Barnard v. Barnard (1961) 105 Sol. J. 441 was also relied upon by Mr. Jackson, but I do not think it assists the wife here. It was held that, although, since the addition of the words "or at any time thereafter", it is no longer necessary to make an order in a nominal sum to preserve a wife's right to apply for maintenance, it was not wrong to make such an order and where one was made it would not be set aside. In my view it does not follow that where an application has actually been dismissed a further application may be made. The alternative to making an order in a nominal sum is to indicate "No order". That is what Karminski, J. would have preferred to do in R v. R (No. 2) (1967) 111 Sol. J. 926. In that case the wife was herself a successful and highly paid member of the threatrical profession and the proposed consent order made no provision for the wife's support. In the event the judge made the consent order sought, by which a claim for maintenance was dismissed, but added "that there was nothing in the wife's conduct which should preclude her from applying for maintenance hereafter and no evidence before the court that the husband had provided for her support in some other way". It does not appear from the brief report what effect he thought that addition might have: he may, as has been suggested, have doubted whether L v. L had been rightly decided, or he may have thought that it could be distinguished on the ground that there had been no provision for support at all and that the addition therefore made the order of dismissal equivalent to the making of no order. I do not think that I should assume...

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