FCMC 14921 of 2017
Consolidated with FCMC 943/2016 and FCMC 5284/2018
 HKFC 133
IN THE DISTRICT COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
NUMBER 14921 of 2017
|(By Order of Deputy District Judge David Cheung dated 23 October 2017 action FCMC 943/2016 was consolidated with FCMC 14921/2017)
|(By Order of Deputy District Judge David Cheung dated 19 June 2018 action FCMC 5284/2018 was consolidated with FCMC 14921/2017)
|Coram: Deputy District Judge M. Lam in Court
|Date of Hearing: 13 and 14 March 2019
|Date of Witten Closing Submissions of the Petitioner: 26 March 2019
|Date of Witten Closing Submissions of the Respondent: 21 March and 1 April 2019
|Date of Handing Down Judgment: 22 May 2019
(Defended Petition and Cross-petition)
1. This is a defended divorce. Both parties recognize that the marriage has broken down irretrievably. The wife seeks a decree based on two-year separation whereas the husband seeks a decree based on adultery.
The actions and pleadings
2. The parties married on 30 December 2005. No child was born to the husband during the marriage. They are domiciled in Hong Kong. Both of them are engineers.
3. The wife initially petitioned for divorce on the basis of 2-year separation since April 2013 (the “First Petition”) under action FCMC942/2016 on 23 January 2016 (the “First Action”). The husband defended the petition by filing an answer on 25 February 2016 (the “First Answer”). He pleaded that up to 8 September 2015 the couple were still living together in Hong Kong, that the wife moved out of the matrimonial home on 9 September 2015 (the “Departure Date”) and from then onward, they had lived separately. He prayed for the petition be dismissed with costs to him.
4. On 23 October 2017, the learned Deputy District Judge David Cheung gave an order for further conduct of the First Action including, inter alia, : -
(a) leave to the wife to file a new petition for divorce on the ground of two-year separation since 10 September 2015 (the “Alleged Date”);
(b) the new action be consolidated with the First Action;
(c) the First Action be stayed from the date of filing of the new petition for divorce by the wife; and when the court pronounces decree nisi in the new action, the First Action be dismissed;
(d) leave to the husband to withdraw the First Answer and to file a fresh Form 4 within 14 days after service of the new petition;
(e) There be no order as to cost of the First Action.
(the “First Consolidation Order”)
5. On 15 November 2017, the wife issued a new divorce petition (the “Wife’s Petition”) based on two-year separation “since at least from the Alleged Date” under action FCMC14921/2017 (the “Wife’s Action”). The husband defended the petition by filing an answer on 21 December 2017 (the “Husband’s Answer”). He denied separation for lack of agreed or deed of separation (the “Agreement Argument”). He further prayed for the Wife’s Petition be dismissed due to a false statement contained therein, namely the wife’s statement that she resided in a specified flat on a specified floor in Heng Fa Chuen (the “Said Address”) (the “Address Argument”).
6. The parties filed and served witness statements shortly afterwards. The second pre-trial review was fixed to 19 June 2018 to allow another round of exchange of witness statements.
7. On 4 May 2018, the husband issued a divorce petition based on adultery (the “Husband’s Petition”) under action FCMC5284/2018 (the “Husband’s Action”). No particulars of adultery were provided. The wife resisted the petition. She urged for dissolution of the marriage solely on two-year separation.
8. By Order of Deputy District Judge David Cheung dated 19 June 2018, the Wife’s Action and the Husband’s Action were consolidated as one action with the Husband’s Petition be treated as the Cross-Petition.
9. Subsequently, the husband was allowed not to name the person alleged to have committed adultery with the wife in this action.
10. On the first day of trial, by consent of the parties, leave was granted to the husband to amend the Husband’s Petition by giving particulars of the adultery, namely, the birth registration of a girl with the date of birth on X September 2017, her mother being the wife and the father not the husband, with cost of and occasioned by the amendments be paid by the husband to the wife, to be taxed if not agreed. The wife then filed consequential amended answer and witness statement.
11. The trial proceeded on the same day as scheduled. In the middle of the trial, the husband produced further document.
The issues in dispute
12. Chronologically, the issues to be determined are: -
(a) whether a decree based on two-year separation as prayed in the Wife’s Petition should be granted,
(b) If the answer to (a) is positive, whether the Court should further make inquiries into the husband’s allegation of adultery under the Husband’s Petition.
(c) If the answer to (b) is positive, whether a decree based on adultery should be granted.
The legal principles
13. The sole ground for granting a decree of divorce is that the marriage has broken down irretrievably: section 11 of the Matrimonial Causes Ordinance, Cap.179 (“MCO”).
14. Proof of irretrievable breakdown can be demonstrated by establishing one or more of the facts set out in section 11A (2) of MCO. Section 11A (2) of MCO provides that: -
“ 11A.Proof of ground for petition
(2) 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 or 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 1 year immediately preceding the presentation of the petition and the respondent consents to a decree’s being granted;
(d) that the parties to the marriage have lived apart for a continuous period of at least 2 years immediately preceding the presentation of the petition;
(e) that the respondent has deserted the petitioner for a continuous period of at least 1 year immediately preceding the presentation of the petition.”
15. The Wife’s Petition is based on section 11A(2)(d) of MCO in which the wife claims the parties had lived apart for a continuous period of at least 2 years before the presentation of the Wife’s Petition, since at least from the Alleged Date.
16. Section 11C (1) of MCO provides that:
“(1) For the purpose of this Part, a husband and wife shall be treated as living apart unless they are living with each other in the same household.”
17. To constitute living apart, even if the wife can prove that the parties have not physically lived together in the same place, she still has to prove that she has ceased to recognize the marriage as subsisting and intended never to return to the husband. Her state of mind needed not be communicated to the husband. See Santos v Santos  Fam 247.
18. In a petition for divorce on two-year separation, the court should not inquire into whose fault it was that the marriage had broken down. Matters of fault between the parties should not be considered. See Chapman v Chapman  1 WLR 1544.
19. With these principles in mind, I now turn to consider the facts of this case.
The First Issue
20. Having considered all the oral and documentary evidence together with the submissions of both parties, I am of the view that the wife has satisfied the requirements as prescribed by section 11A(2)(d) of MCO. She succeeds in proving that the parties have lived apart at least from the Alleged Date with the following reasons.
21. The fact that the wife moved out of the matrimonial home on the Departure Date was admitted by the husband during trial. It was also evidenced by an email sent by the wife on the Departure Date notifying the husband that she was moving out on that date and she would live with her friend from then on.
22. Even though the husband seeks to argue that the wife only intended to live apart from him temporarily as worded in the said email, there is solid evidence to show that what she had termed to be temporary separation has eventually become permanent separation as elaborated below.
23. There are a number of electronic text messages which support the wife’s case that the separation started from the Alleged Date. In her electronic text message to the husband dated 2 August 2016 (the...