FCDJ 4710 / 1991
IN THE DISTRICT COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
NUMBER 4710 OF 1991
Coram : Her Honour Judge Chu in Chambers (Not open to Public)
Date of Hearing : 2nd January 2009
Date of Handing Down of Reasons for Decision : 14 January 2009
REASONS FOR DECISION
1. This is the application of the Petitioner (“W”) under Rule 65 (2) of the Matrimonial Causes Rules for leave to make absolute the decree nisi of divorce pronounced on 21 February 1992, notwithstanding a long delay of 16 years 9 months. Alternatively, if this Court were not to give her leave, she would seek leave to issue a fresh petition.
2. At a direction hearing on 27 November 2008, the Respondent (“H”), acting in person, indicated that he would oppose W’s application and oppose a divorce, as a result of which this Court adjourned W’s application for argument, and gave leave for H to file an affirmation in opposition.
3. H failed to file any affirmation in opposition. He, however, turned up at the substantive hearing fixed on 2 January 2009 and indicated that he was no longer opposing the divorce, but nevertheless he took issue with the allegations in W’s affirmation filed in support of her application (W’s Affirmation”).
4. As a result of H’s indication, at the hearing on 2 January 2009, this Court decided to give leave for W to issue a fresh divorce petition based on the parties’ separation for at least 2 years, but declined to give leave for the decree nisi pronounced on 21 February 1992 to be made absolute. The reasons are now set out hereinafter.
5. H and W were married on 18 November 1986 in Hong Kong. They have a son, who was born on 14 April 1989, and is now 19 years of age.
6. On about 18 May 1991, W alleged that she was unable to tolerate H’s continuing unreasonable behaviour and moved out of the parties’ matrimonial home at OL Garden (“Matrimonial Home”). On 27 August 1991, W issued a divorce petition based on H’s unreasonable behaviour and sought custody and various forms of ancillary relief, including a transfer of the Matrimonial Home. A decree nisi was subsequently granted to her on 21 February 1992, and on the same day, she was granted interim custody of the son. By an Order dated 15 April 1992, the question of ancillary relief was adjourned sine die with liberty to restore.
7. According to W’s Affirmation, in or about April 1992, not long after the decree nisi was granted, she and H reconciled and she moved back into the Matrimonial Home and the parties resumed cohabitation, and their relationship resumed for almost another 14 years.
8. In about February 2005, W alleged that H “drove” her out of the Matrimonial Home and for about 4 months, she lived with her mother. W moved back to the Matrimonial Home in about July / August 2005 and the parties then continued living together again until about February 2006, when according to W, H tried again to “drive” her out. She refused, but since February 2006, the parties have been occupying separate rooms, and did not have any meals together. W started to pay for half of the rates and management fees of the Matrimonial Home.
9. Thereafter, according to W, H has been repeatedly harassing her in order to “drive” her out of the Matrimonial Home. I will not go into all the incidents alleged by W at this stage. Suffice to say, eventually, after an incident on 21 October 2008, W said she was advised by the police to move out.
10. Thus, after the decree nisi was granted in February 1992, the parties resumed cohabitation from about April 1992 until about February 2006, a period of just 2 months short of 14 years.
THE LEGAL PRINCIPLES
11. Rule 65 of the Matrimonial Causes Rules sets out the procedures on an application by a spouse to make absolute a decree nisi pronounced in his/her favour. Subject to the satisfaction of the matters listed out in Rule 65(2), the registrar...