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Jah Nee S v Vh

Judgment Cited authorities 6 Cited in Precedent Map Related
Vincent
Judgment Date18 December 2013
Year2013
Judgement NumberCACV279/2012
Subject MatterCivil Appeal
CourtCourt of Appeal (Hong Kong)
CACV279/2012 JAH Nee S v. VH

CACV 279/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 279 OF 2012

(ON APPEAL FROM HCMC NO. 3 OF 2012)

________________________

BETWEEN

JAH nee S Petitioner
and
VH Respondent

________________________

Before: Hon Cheung, Barma JJA and Au J in Court
Date of Hearing: 3 December 2013
Date of Judgment: 18 December 2013

________________________

J U D G M E N T

________________________

Hon Cheung JA :

I. The appeal

1. The petitioner wife obtained a decree nisi of divorce based on the unreasonable behaviour of the husband. The respondent husband applied by summons under section 17(2) of the Matrimonial Causes Ordinance (‘MCO’) (Cap. 179) to make the decree absolute. The wife opposed the application. Poon J granted the decree absolute. The wife now appeals. By an order dated 27 November 2012, the Judge ordered that if an appeal is lodged the decree nisi will not be made absolute until the determination of such appeal.

II. Background

2.1 The background of the case is succinctly summarised by the Judge which I will gratefully adopt with supplements.

2.2 The husband is an ethnic Cambodian and a French national. He is now 72. The wife is a Korean and now aged 58. The husband and wife were married on 8 June 1987. They have two adult children. Most, if not all, of the family assets are in Cambodia.

2.3 On 16 November 2009, the wife commenced divorce proceedings in the Family Court in Hong Kong. On 16 April 2010, the husband issued a petition for divorce in the same Court. By order dated 23 June 2010, the two petitions were consolidated with the wife’s standing as the petition and the husband’s standing as the cross-petition in the consolidated cause. On 16 July 2010, leave was given to the husband by consent to withdraw the cross-petition. On 25 August 2010, a decree nisi was pronounced in favour of the wife in respect of her amended petition which was based on a milder form of unreasonable behaviour on the part of the husband.

2.4 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.

2.5 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.

2.6 On 1 February 2011, the husband took out an ex parte application under rule 65 of the Matrimonial Causes Rules (‘MCR’) (Cap. 179A) 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 the husband’s favour on 9 February 2011. The wife then swiftly applied to set aside the decree absolute, which was allowed by Judge Melloy on 19 April 2011.

2.7 Complaints about the non-compliance of the undertakings in the Consent Order soon arose. In December 2011, the wife 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.

2.8 On 3 February 2012, the husband filed a criminal complaint against the wife 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 the wife was his ex-wife. After the children’s intervention, the husband 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. The husband had since taken no further step in the criminal complaint.

2.9, On 30 April 2012, the wife issued a summons seeking an order restraining the husband 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 the husband pending the determination of the summons. But later on 24 May 2012, 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.

2.10 By summons dated 3 July 2012, the husband applied for a decree absolute, which was opposed by the wife.

2.11 Both the wife’s and husband’s summonses came before the Judge on 20 July 2012. After hearing the parties, the Judge dismissed the wife’s application for an anti-suit injunction in its amended form (the amendment was allowed by the Judge on 6 July 2012). But he allowed her application for the preservation orders, which, in short, prohibited the husband from disposing of the assets concerned without court’s leave or the wife’s consent (‘the Preservation Orders’). He adjourned the husband’s application with consequential directions. Subsequently, the husband’s application was fully argued before the Judge on 16 November 2012 and allowed.

III. Decree Nisi and Decree Absolute

3. Section 15(5) of the MCO provides that every decree of divorce shall in the first instance be a decree nisi and shall not be made absolute before the expiration of three months from its grant, unless the Chief Judge by general order, or the Court in any particular case, fixes a shorter period. By the Matrimonial Causes (Decree Absolute) General Order (Cap. 179 Sub-Leg C), the period is reduced to six weeks.

IV. Application to make decree absolute

4.1 Where a decree nisi of divorce has been granted on a divorce petition either of the parties to the decree may apply to have it made absolute with a right being given to the other party to be heard.

1) Under statute

(1) By the spouse who obtained the decree in his/her favour

4.2 Rule 65(1) of the MCR enables the spouse to make absolute a decree nisi pronounced in his/her favour by lodging with the registrar a notice in Form 5. The notice of application is not required to be served on the other party.

4.3 Where a rule 65(1) application is made, rule 65(2) provides that the registrar is to search the court minutes and ‘shall make the decree absolute’ if he is satisfied that :

(a) no appeal against the decree and no application for re-hearing of the cause or for rescission of the decree is pending;

(b) no order has been made by the Court of Appeal extending the time for appealing against the decree or by a judge extending the time for making an application for re-hearing of the cause or, if any such order has been made, that the time so extended has expired;

(c) no application for such an order as is mentioned in sub-paragraph (b) is pending;

(d) no intervention under rule 61 or 62 is pending;

(e) the Judge has made an order under section 18(1) of the Matrimonial Proceedings and Property Ordinance (Cap 192) [i.e. restrictions on making decree absolute on matters affecting children]; and

(g) the provisions of section 17A of the MCOdo not apply or have been complied with.

4.4 The reference to section 17A deals with the application by the respondent to a divorce based on one-year separation with consent (section 11A(2)(c) of MCO) or two-year separation (section 11A(2)(d)) for the Court to consider his/her financial position after the divorce. Under such an application the Court is required to consider under section 17A(2) :

(a) all the circumstances, including the age, health, conduct, earning capacity, financial resources and financial obligations of each of the parties; and

(b) the financial position of the respondent as, having regard to the divorce, it is likely to be after the death of the petitioner should the petitioner die first.

4.5 Under section 17A(3) the Court shall not, subject to sub-section (4), grant a decree absolute unless it is satisfied that :

(a) the petitioner should not be required to make any financial provision for the respondent; or

(b) the financial provision made by the petitioner for the respondent is reasonable and fair or the best that can be made in the circumstances.

4.6 Nonetheless, under section 17A(4) the Court may proceed without observing the requirements of subsections (2) and (3) if—

(a) it appears that there are circumstances making it desirable that the decree should be made absolute without delay; and

(b) the Court has obtained a satisfactory undertaking from the petitioner that he will make such financial provision for the respondent as the Court may approve.

4.7 My understanding is that in the Family Court if the registrar received notice of opposition from the other party to the rule 65 application, he will refer the matter to the Judge.

4.8 Where there are circumstances which ought to be drawn to the notice of the Court the application to make the decree absolute has to be made to a judge (rule 65(3)). The notice of application (if the divorce is in the District Court) or summons (if...

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