Yhf v Ysm

CourtFamily Court (Hong Kong)
Judgment Date01 Dec 2014
Judgement NumberFCMC1153/2014
SubjectMatrimonial Causes
FCMC1153/2014 YHF v. YSM

FCMC 1153 /2014

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES

NUMBER 1153 OF 2014

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BETWEEN

YHF Petitioner

and

YSM Respondent
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Coram : Deputy District Judge Grace Chan in Chambers (not open to public)
Date of hearing : 28 November 2014
Date of decision : 1 December 2014

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DECISION
(Application for DA under section 17A(4)
of Matrimonial Causes Ordinance, Cap 179)

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Background

1. The petitioner (“husband”) relies on section 17A(4) of the Matrimonial Causes Ordinance, Cap 179 (“Ordinance”) and applies by way of a summons of 20 August 2014 for an order that this court shall proceed to issue the decree absolute without observing the requirements of sections 17A(2) and (3) of the Ordinance. His application is opposed by the respondent (“wife”).

2. The husband was born in 1960 and is now 54. He has been the breadwinner of the family. The wife was born in 1962 and is now 52. She is a housewife. In fact, the husband, though his solicitors in the hearing of 29 September 2014, has conceded that she does not have any earning capacity.

3. The couple was married in 1987. Their only daughter, born in 1994, is now 20 and studying abroad. She stays with the wife when she is in Hong Kong.

4. In January 2014, the husband filed a petition for divorce on the ground of 2-year’s separation, namely since March 2003. His petition was not defended by the wife. Decree nisi was granted on 29 May 2014. Until then, the marriage lasted for 27 years.

5. The application for decree nisi to be made absolute was filed by the husband on 14 July 2014, but the wife filed a Form 26 pursuant to rule 56B of the Matrimonial Causes Rules asking this court to consider her financial position after the divorce (section 17A(1)(a) of the Ordinance). Simply said, the effect of such an application is that the court shall not make absolute the decree unless it has made a full enquiry into the financial position of both parties and is satisfied that the financial provision meets the criteria in section 17A(3) of the Ordinance.

6. Since their daughter is now over 18, custody is not an issue of this case. The outstanding issues are the distribution of assets and the maintenance for the wife and the daughter (when she is still receiving full time education).

7. Form Es have been exchanged, though it cannot be disputed that the wife’s Form E was filed about 3 months late. She was first ordered to file her Form E by 19 May 2014, which was extended to 4 July 2014. Yet the same was not filed until 4 August 2014, the same day when she became legally represented.

8. The parties are at the stage of discovery and obtaining valuation of the landed properties in question. The next call-over hearing will take place in early January 2015.

Applicable legal principles

9. Section 17A of the Ordinance deals with the application by a respondent to a divorce based on 1-year separation with consent or 2-year separation, for the court to consider his/her financial position after divorce:

17A. Financial protection for respondent in certain cases

(1) This section shall apply where –

(a) the respondent to a petition for divorce in which the petitioner alleges any such fact as is mentioned in section 11A(2)(c)[1] or (d)[2] has applied to the court under this section for it to consider the financial position of the respondent after the divorce; and

(b) a decree nisi of divorce has been granted on the petition and the court holds that the only fact on which the petitioner is entitled to rely in support of his petition is that mentioned in section 11A(2)(c) or (d).

10. In such application, the court is required to consider section 17A (2) and (3):

“(2) The court hearing an application by the respondent under subsection (1) shall consider -

(a) all the circumstances, including the age, health, conduct, earning capacity, financial resources and financial obligations of each of the parties; and

(b) the financial position of the respondent as, having regard to the divorce, it is likely to be after the death of the petitioner should the petitioner die first.”

(3) Notwithstanding anything in this Ordinance but subject to subsection (4), the court shall not make absolute the decree of divorce if an application has been made under subsection (1), unless it is satisfied that -

(a) the petitioner should not be required to make any financial provision for the respondent; or

(b) the financial provision made by the petitioner for the respondent is reasonable and fair or the best that can he made in the circumstances.” (my emphasis)

11. However, section 17A(3) of the Ordinance is said to be subject to section 17A(4) which provides that,

“(4) The court may, if it thinks fit, proceed without observing the requirements of subsections (2) and (3) if-

(a) it appears that there are circumstances making it desirable that the decree should be made absolute without delay; and

(b) the court has obtained a satisfactory undertaking from the petitioner that he will make such financial provision for the respondent as the court may approve.” (my emphasis)

12. It is indisputable that the wording of section 17A(4) of the Ordinance gives this court a wide discretion to allow the grant of the decree absolute, despite the fact that an application is made by the respondent pursuant to section 17A(1) of the Ordinance for this court to consider his/her financial position after the divorce and that section 17A (2) and (3) have not been observed.

13. However, in order for this court to exercise its discretion in the favour of the petitioner, the petitioner has to show to the court that both limbs of section 17A(4) (a) and (b) of the Ordinance are satisfied. The burden of proof lies squarely on the petitioner, but not the respondent.

The husband’s argument

14. In this hearing, Mr C K Wong, solicitor acting for the husband, accepts that the husband bears the burden of prove to show that both limbs of section 17A (4) (a) and (b) of the Ordinance are satisfied.

15. He seeks to rely on the husband’s 1st affirmation dated 19 August 2014 and urges me to take into account the following circumstances:

(1) that both parties have separated since 2003 (which is not disputed by the wife);

(2) that the husband is now cohabiting with a lady whom he planned to marry on 5 September 2014. The marriage had to be cancelled subsequently because the wife has filed Form 26 to ask this court to consider her financial position after the divorce;

(3) that it is the wife’s own delay in filing her Form E which has hindered her financial relief claims. It is not fair to the husband to be denied of the chance to remarry for an indefinite period of time, when the marriage had been broken down irretrievably (See: KEWS v NCHC, FCMC 13087 of 2008, date of judgment 19/10/2010 at §69; LPK v SH, FCMC 14402 of 2011, date of judgment 27/6/2012 at §40(e) and (f)); and

(4) that the husband has been a responsible person all along, paying monthly maintenance of $14,000 to the wife and allowing her to stay in the matrimonial home.

16. In his submission, the above circumstances make it...

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