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J v v

Judgment Cited authorities 5 Cited in 1 Precedent Map Related
Vincent
Judgment Date27 November 2012
Year2012
Citation[2013] 1 HKLRD 203
Judgement NumberHCMC3/2012
Subject MatterMatrimonial Causes
CourtHigh Court (Hong Kong)
HCMC3/2012 J v. V

HCMC 3/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MATRIMONIAL CAUSES NO 3 OF 2012

(TRANSFERRED FROM FCMC 14350 OF 2009
consolidated with FCMC 4402 OF 2010)

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

BETWEEN
J Petitioner

and
V Respondent
------------------------

Before : Hon Poon J in Court

Date of Hearing : 16 November 2012

Date of Judgment : 27 November 2012

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J U D G M E N T

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

1. This is H’s application for the decree nisi pronounced against him on 25 August 2010 be made absolute under section 17(2) of the Matrimonial Causes Ordinance (“the Ordinance”)[1].

2. The background may be summarized as follows.

Background

3. H is an ethnic Cambodian and a French national. He is now 71. W is a Korean and now aged 57. H and W were married on 8 June 1987. They have two adult children. Most, if not all, of the family assets are in Cambodia.

4. On 16 November 2009, W commenced divorce proceedings in the Family Court in Hong Kong[2]. On 16 April 2010, H issued a petition for divorce[3] in the same Court. By order dated 23 June 2010, the two petitions were consolidated with W’s standing as the petition and H’s standing as the cross-petition in the consolidated cause. On 16 July 2010, leave was given to H by consent to withdraw the cross-petition. On 25 August 2010, a decree nisi was pronounced in favour of W.

5. The parties then entered into mediation with a view to resolving financial provisions. The mediation was successful, which resulted in a mediation agreement dated 22 December 2010 (“the Mediation Agreement”) whereby the parties reached an overall settlement over their finances on a “clean break” basis. The parties agreed to make cross-transfers of various properties and shares in different companies.

6. The parties next obtained a consent order dated 13 January 2011 (“the Consent Order”) from the Family Court. The Consent Order contained various undertakings by the parties to effect the settlement contained in the Mediation Agreement within 12 months from the date of the Mediation Agreement. Upon compliance of the undertakings, the parties’ respective claims for ancillary relief do stand dismissed.

7. On 1 February 2011, H took out an ex parte application under rule 65 of the Matrimonial Causes Rules (“MCR”)[4] for the decree nisi to be made absolute. The procedure was wrong as such an application can only be made by a petitioner. However, the Family Registry erroneously granted a decree absolute in H’s favour on 9 February 2011. W then swiftly applied to set aside the decree absolute, which was allowed by Judge Melloy on 19 April 2011.

8. Complaints about the non-compliance of the undertakings in the Consent Order soon arose. In December 2011, W took out a summons seeking directions for the implementation of a timetable in relation to the undertakings in dispute. The matter came before Judge Melloy on 31 January 2012. After hearing the parties, she adjourned the matter for 12 weeks to assess the progress and for report to be made to the court.

9. On 3 February 2012, H filed a criminal complaint against W in Cambodia for breach of trust arising from her failure to hand over the signed transfer documents in relation to one of the properties to him, as she was supposed to do under her undertakings in the Consent Order. The criminal complaint was based erroneously on the allegation that W was his ex-wife. After the children’s intervention, H withdrew the complaint on 16 March 2012. The Deputy Prosecutor responsible for the complaint took the view that it was non-performance of contract and not a criminal offence. The case was then “filed without proceeding” on 23 March 2012. H had since taken no further step in the criminal complaint.

10. On 30 April 2012, W issued a summons seeking an order restraining H from pursuing proceedings in Cambodia against her or any of her assets and other interim orders of protection to preserve the assets subject to the agreed division so that a division could in fact be carried out. On 3 May 2012, Judge Melloy granted an interim anti-suit injunction and other interim preservation orders against H pending the determination of the summons. But later on 24 May, she discharged the interim anti‑suit‑injunction and ordered the case to be transferred to the High Court for a full hearing to be fixed on an expedited basis.

11. By summons dated 3 July 2012, H applied for a decree absolute, which was opposed by W.

12. Both W’s and H’s summonses came before me on 20 July 2012. After hearing the parties, I dismissed the wife’s application for an anti-suit injunction in its amended form[5]. But I allowed her application for the preservations orders, which, in short, prohibited H from disposing of the assets concerned without court’s leave or W’s consent (“the Preservation Orders”). I adjourned H’s application with consequential directions. Subsequently, H’s application was fully argued before me on 16 November 2012.

The law

13. For the purpose of the discussion below, I will refer to the spouse in whose favour the decree nisi is granted “the Petitioner” and the spouse against whom the decree nisi is granted (“the Respondent”).

14. Section 17(2)(a) of the Ordinance provides :

“(2) (a) Where a decree nisi of divorce has been granted and no application for it to be made absolute is made, then, at any time after the expiration of 3 months from the earliest date on which such an application could have been made, an application for a decree absolute may be made by-

(i) in a case where the decree nisi was granted on a petition for divorce, [the Respondent]; or

... ”

Subsection (2)(b) then empowers the court to, among other things, make the decree absolute.

15. It is common ground that the court retains a discretion under its inherent jurisdiction as to whether to make a decree nisi absolute : Smith v Smith[6]; Miller-Smith v Miller-Smith (No 2)[7]. I would add that the discretion is unfettered and that as a guiding principle, the court will exercise the discretion in a way that is just in the circumstances to do so. However, the parties differ as to how the discretion should be exercised.

16. Mr Pilbrow, SC, for H, argues that the jurisdiction to delay or stay an application to make a decree absolute is exercised only if the opposing party is able to establish special or exceptional circumstances. He cites Miller-Smith v Miller-Smith (No 2)[8]in support. There, the decree nisi was made in favour of the petitioning husband. The wife’s opposition to his application to make the decree absolute was dismissed when she failed to establish special or exceptional circumstances.

17. Mr Scott, SC, for W, relies on Wickler v Wickler[9]. There, the wife had obtained a decree nisi and began ancillary relief proceedings. Both parties were Dutch. The wife lived in England, the husband in Holland and Israel. The husband’s involvements in the proceedings were marked by a lack of openness and a devious approach to disclosure. He concealed his real address. His sudden drop in income was apparent than real. Some of his considerable assets were held within the jurisdiction but the majority was not. The husband was anxious to marry another woman. He obtained leave to apply for a decree absolute on undertakings which were related to the wife’s financial situation. The wife appealed, contending that her interests would be materially prejudiced if the decree absolute were granted as the husband would no longer have any incentive to participate in any way in the ancillary relief proceedings. Bracewell J allowed the appeal, holding that if the husband were granted a decree absolute, leaving him free to contract a lawful remarriage, he would lose interest in the ancillary relief proceedings thus preventing the wife from establishing her real entitlement and from receiving her proper share. The prejudice to the husband in dealing his legal remarriage for 9 months until the ancillary relief hearing was very minor when compared with the prejudice to the wife if the husband refused to participate further in the ancillary relief proceedings.

18. Mr Scott contends that a distinction has to be drawn between an application for decree absolute brought by the Petitioner, as is the case in Miller-Smith v Miller-Smith, and an application brought by the Respondent, as is the case in Wickler v Wickler. In the former case, the Petitioner is seeking to make the decree nisi granted in his/her favour be made absolute. The Respondent as the opposing party needs to establish special and exceptional circumstances. In the latter case, no burden is imposed on the Petitioner as the opposing party to show any special or exceptional circumstances. What the court does is to balance the prejudice that the Petitioner may suffer if a decree absolute is granted against the prejudice that the Respondent may suffer if a decree absolute is not granted[10].

19. While the discretion is based on the court’s inherent jurisdiction, the right to a decree absolute is governed by statute. The statutory regime governing the grant of a decree absolute naturally bears on how the discretion should be exercised. The statutory regime can be outlined as follows.

20. Under section 15(5) of the Ordinance, every decree of divorce shall in the first instance be a decree nisi and shall not be made absolute before the expiration of 3 months from its grant, unless the Chief Judge[11] by general order, or the court in any particular case, fixes a shorter period. The Chief Justice issued the Matrimonial Causes (Decree Absolute) General Order 1973, reducing the period of 3 months to 6 weeks for a decree nisi pronounced on or after 3 July 1973. The court will very rarely reduce the 6 weeks’ period further[12]....

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1 cases
  • Tls Nee J v Rcs
    • Hong Kong
    • Family Court (Hong Kong)
    • 4 Noviembre 2013
    ...(Decree Absolute : Prejudice) [2003] 1 FLR 870 in her written Skeleton Submissions. The applicable principles 14. In the case of J v. V [2013] 1 HKLRD 203 which is a Hong Kong case less than a year ago (Judgment Date : 27 November 2012), Hon Poon J having considered various English authorit......

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