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Wong Kwok Lin v Wong Ho

Judgment Cited authorities 1 Cited in Precedent Map Related
Vincent
Judgment Date12 August 1981
Year1981
Judgement NumberFCMC364/1981
Subject MatterMatrimonial Causes
CourtFamily Court (Hong Kong)
FCMC000364/1981 WONG KWOK LIN v. WONG HO

FCMC000364/1981

IN THE DISTRICT COURT OF HONG KONG

HOLDEN AT VICTORIA

DIVORCE JURISDICTION

ACTION NO. 364 OF 1981

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BETWEEN WONG KWOK LIN Petitioner
and
WONG HO Respondent

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Coram: H.H. Judge Bokhary (in Chambers)

Date of Judgment: 12th August, 1981.

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JUDGMENT

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1. This case raises for consideration the correct procedure to be followed when the parties to a marriage become reconciled after the service of the petition and the orders as to costs which are generally appropriate in such situations. These are matters of considerable importance as they go not only to the saving of time and money but also to avoiding the creation of the sort of tension which might jeopardise the reconciliation. The present case is one of two cases calling for consideration of these matters which came before me today (the other being the cause the reference to the record whereof is VDJ 364 of 1981). In all the circumstances, I readily accede to Mr. Day's suggestion that I provide some guidance thereon to Solicitors.

2. The relevant facts are within small compass. On February 26. 1981, only one day after the presentation of her petition for divorce, the wife obtained ex parte orders restraining her husband from molesting her or the children of the family, excluding him from the matrimonial home and granting her interim custody of the children.

3. The husband moved out of the matrimonial home in compliance with the ex parte injunction directing him so to do. However, by the time the inter partes application was heard on March 19, 1981, he had moved back in and the wife was content that he remain. All that she wanted was a continuation until trial or further order of the injunction against molestation and the costs of the inter partes application. The husband, who appeared in person, indicated that he had nothing to say. This injunction was continued as asked and the wife was awarded the costs which she sought.

4. Happily, the parties have become reconciled. The wife no longer wants a diverce. On May 11, 1981, following this reconciliation and change of heart, her legal aid certificate was duly discharged.

5. With a view to tying up the loose ends, so to speak, the wife's solicitors took out a summons on July 22, 1981, seeking an order that this cause be discontinued and that the husband be ordered to pay the costs thereof to be taxed (there having been no order as to the same save for the costs of the inter partes application to which I have referred).

6. Despite being duly served with the summons of July 22, 1981, and the Affidavit in support thereof, the husband has failed to appear. However, the very sensible way in which Mr. Day, who appeared for the wife, approached today's application has avoided the difficulties which might have arisen out of such failure.

7. First, I will deal with the application to bring this cause to an end, to use a neutral expression.

8. Ultimately, the fate of a petition for divorce is either to be successful or to be dismissed. A petition which is subject to a stay is, of course, not finally disposed of until it has been dismissed: see 'Rayden on Divorce', 13th edition (1979) at p. 382. Dismissal is also the ultimate fate of an abandoned petition: Ibid. at p. 369. It has long been established that a petition cannot be withdrawn : see Ryder v. Ryder (1861), 30 L.J. (P.M. & A.) 164. This is because once filed, a petition remains upon the file of the Court - and this is so whether it is stayed, abandoned, dismissed or successful: see Brocas v. Brocas (1861), 2 Sw. & Tr. 383. Although petitions which are not prosecuted following a reconciliation are quite often spoken of as having been 'withdrawn' this is technically incorrect : See 13 Halsbury (4th edition) at p. 428, para. 906, where the term is also put within inverted commas.

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