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W v W

Judgment Cited authorities 2 Cited in Precedent Map Related
Vincent
Judgment Date29 April 2005
Year2005
Judgement NumberFCMC4722/1992
Subject MatterMatrimonial Causes
CourtFamily Court (Hong Kong)
FCMC004722/1992 W v. W

FCDJ 4722/1992

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

DIVORCE JURISDICTION

SUIT NO. 4722 OF 1992

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BETWEEN

　 W Petitioner
　 And 　
　 W Respondent

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Coram : Deputy Judge C.K. Chan in Chambers

Date of Hearing : 20 April 2005

Date of Ruling : 29 April 2005

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REASONS FOR RULING

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Application

1. This is an application by the Respondent husband for leave to file a notice of application for ancillary relief against the Petitioner wife under Rule 68 of the Matrimonial Causes Rules, Cap. 179.

2. The application was originally heard in Chinese. Since reference will be made to some English authorities in this ruling, I have decided to deliver this ruling in English.

3. For convenience, I shall call the Respondent “the Husband” and the Petitioner “the Wife” in the ruling herein below.

Background

4. The Husband is now aged 71 and the Wife aged 51. They married in 1971. During the marriage, three children were born out of wedlock and they are now all grown up.

5. After marriage and up to the year of 1990, the parties had operated various businesses in Hong Kong including an amusement park, several ballrooms and a sauna. The businesses were all successful. There is now a dispute on the ownership of those business ventures. The Husband said they were his business and the Wife said they were hers.

6. In 1984, a property at Yuen Long (“the said property”) was purchased in the joint names of the parties at a price of $600,000.

7. In the same year, for reasons that are not entirely clear, the Husband left Hong Kong and emigrated to Taiwan. From then on, the parties decided to live separate lives and they have never resumed cohabitation.

8. In 1989, the Wife instructed her solicitor to bring certain legal documents to Taiwan for the Husband’s signature. Those documents included a Deed of Separation and a Deed of Assignment for the sale of the said property to the Wife’s mother at a consideration of $1,400,000. Both documents were signed by the Husband. The sale was completed in the same year and the title to the said property was conveyed to the mother of the Wife. However, in the year of 1993, the Wife’s mother sold back the said property to the Wife and the parties’ eldest daughter at a consideration of $1,500,000.

9. From the year of 1990, the Husband has relocated to Shenzhen. He also stayed at the said property whenever he came to Hong Kong.

10. In 1992, the Wife started proceedings in the Family Court asking for a divorce based on the ground of 5 years separation. In 1995, the Wife obtained an order from the court to dispense with the service of the Petition and subsequently, a decree nisi was granted on 25 August 1995 which was later made absolute on 3 November 1995.

11. In the year of 2000, the Wife and the eldest daughter took out proceedings in the Court of First Instance (HCA No. 7718 of 2000) against the Husband and other persons who are in occupation claiming for vacant possession of the said property and mesne profits. The Husband filed a defence and counterclaim saying that the Deed of Assignment in 1989 was procured by false misrepresentation and asked it to be declared null and void.

12. The trial of the action was heard before Lam J on 18 August 2004. During trial, the Husband asked for amendments to the defence and counterclaim to include a prayer for a declaration that the beneficial interest in the said property is jointly owned by him and the Wife. In considering the said application, His Lordship was of the view that the proper course was for the Husband to apply for ancillary relief in the matrimonial proceedings because of the wide powers of the court in the adjustment of matrimonial properties. Therefore, the trial was adjourned so that the Husband can make an application in the Family Court for ancillary relief. He also ordered that after the application for ancillary relief is properly made, the whole matter should be transferred to the Court of First Instance for hearing.

13. By a Notice dated 26 August 2004, the Husband applied to this court for leave to file a notice of application for ancillary relief. It seems that the Husband is under an apprehension that he is required to obtain leave before he can make the application for ancillary relief in this proceedings.

Issues

14. I think there are 2 main issues here. They are:

(1) As the Husband has never taken part in the matrimonial proceedings, is it necessary for him to ask for leave from the court before he can file a notice of application for ancillary relief?
(2) If leave is required, should this court grant such leave under the circumstances?

Is leave necessary?

15. The statutory basis for the Husband’s application is Rule 68 of the Matrimonial Causes Rules, Cap. 179, which is as follows:

“68. Application by petitioner or respondent for ancillary relief
(1) Any application by a petitioner, or by a respondent spouse who files an answer claiming relief, for-
(a) an order for maintenance pending suit;
(b) a periodical payments order;
(c) a secured periodical payments order;
(d) a lump sum order;
(e) a settlement of property order;
(f) a transfer of property order;
(g) a variation of settlement order;
shall be made in the petition or answer, as the case may be.
(2) Notwithstanding anything in paragraph (1), an application for ancillary relief which should have been made in the petition or answer may be made subsequently-
(a) by leave of the court, either by notice in Form 8 or at the trial; or
(b) where the parties are agreed upon the terms of the proposed order, without leave by notice in Form 8.
(3) An application by a petitioner or respondent spouse for ancillary relief, not being an application which is required to be made in the petition or answer, shall be made by notice in Form 8.”

16. Rule 68(1) provides that if a respondent (i.e. the Husband in this suit) has filed an answer in the suit, it is imperative for the respondent to state his claim for ancillary relief in the answer.

17. If he shall fail to do so, then r 68(2) will come into play in that the respondent will only be allowed to file a notice of application for ancillary relief if :

(a) he either obtains leave from the court to do so; or
(b) he has to get the consent of the other party.

18. By the wordings of r 68(2), it assumes that an answer has already been filed by the respondent. I come to this conclusion because in the beginning of paragraph (2), it starts with “ Notwithstanding anything in paragraph (1),…” In other words, it is referring to the situation as stated in paragraph (1) which is a scenario where an answer has already been filed by the respondent. From that analysis, for any other scenarios (which would include the scenario where there is no answer filed), r 68(2) would no longer be applicable and the parties have to resort to paragraph (3), which simply says that a party shall file the notice of application for ancillary relief in Form 8. No leave is said to be required...

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