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Ta Tran Thi Thanh v Ta Van Hung And Another

Judgment Cited authorities 6 Cited in Precedent Map Related
Vincent
Judgment Date07 October 1981
Year1981
Judgement NumberFCMC1412/1981
Subject MatterMatrimonial Causes
CourtFamily Court (Hong Kong)
FCMC001412/1981 TA TRAN THI THANH v. TA VAN HUNG AND ANOTHER

FCMC001412/1981

IN THE DISTRICT COURT OF HONG KONG

HOLDEN AT VICTORIA

DIVORCE JURISDICTION

ACTION NO. 1412 OF 1981

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BETWEEN TA TRAN THE THANH Petitioner
and
TA VAN HUNG 1st Respondent
and
TRAN THI THINH 2nd Respondent

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Coram: Judge Wane in Court.

Date of Judgment: 7th October, 1981.

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RULING

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1. This is a petition for divorce on the grounds of adultery between the husband Respondent and the 2nd Respondent. The question is whether this Court has jurisdiction to deal with the petition.

2. All parties are Vietnamese refugees who arrived in Hong Kong on 15th October 1980. They have lived in a transit camp in Hong Kong ever since. The Petitioner and 1st Respondent were married in Vietnam on 18th December 1969 and have three children aged from 10 to 2 years. The Petitioner alleges that from February 1979 up to the date of the petition, the 14th July 1981, the Respondent has been committing adultery with the 2nd Respondent in Vietnam and presumably in Hong Kong.

3. Since his arrival in Hong Kong the Respondent has applied to the American Consulate General here for visas enabling him and the 2nd Respondent to to enter the United States of America. He was refused. The Petitioner then applied for similar visas for herself and the three children. She has been informed that her application will not be considered unless and until she obtains a diverce. The rationale of this apparently arbitrary decision would appear to be that the American policy is to admit only a complete family, not part of it, and as the husband has already been rejected the remaining family members are not acceptable.

4. The Petitioner's purpose in obtaining a divorce is clearly to open the way to an American visa. It is by no means certain however that she will in the end be granted a visa even after a divorce. In the meantime she must remain in Hong Kong.

5. The question is whether in these circumstances either of the parties to the marriage had "a substantial connexion with Hong Kong at the date of the petition" See 3(c) of the Matrimonial Clauses Ordinance, Cap. 179.

6. Counsel referred me to the case of Savournin v. LAU Yat-fung (1971) HKLR 180. There is also the case of Griggs v. Griggs (1971) HKLR 299. Both were decisions of Briggs J. as he then was. There appear to be no other Hong Kong authorities on this point.

7. In each case Briggs J. accepted that the circumstances were such as to enable him to find "substantial connexion". In Savournin the husband had been living in Hong Kong for 5 years, he had substantial business interests in Hong Kong, the marriage took place in Hong Kong and the matrimonial home was in Hong Kong. The wife was Chinese. She had lived in Hong Kong for 23 years and still remained resident and working here. It was with respect not difficult to find substantial connexion in those circumstances.

8. The Griggs case was as Briggs J. said "a much less strong case" than the former. The parties had come to Hong Kong only 16 months before the petition was filed. They were domiciled in the United Kingdom and the learned judge held that they had not abandoned their domicile of origin. But it was accepted that the husband of petitioner had on arrival leased a flat for 3 years and that although as a musician he would tour around Asia for much of his time he was using Hong Kong as a base or centre.

9. In neither case would the learned judge lay down any general principle as to what is a "substantial connexion". Each case was to be decided on its own facts.

10. He did however indicate that it would not be acceptable to apply the phrase to those who "came here to take advantage of this provision of the Hong Kong law" to obtain a divorce that would not be available say in the United Kingdom. That is clearly not the case here.

11. His Lordship...

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