Is it Time for Hong Kong to Adopt No Fault Divorce?

Introduction

Last year, the highly publicised case of Owens v Owens [2018] AC 899 generated considerable attention on the legal framework for divorce in England and Wales.

In brief, the case involved parties who were married for 37 years before Mrs. Owens moved out of the matrimonial home in 2015. A few months after moving out, Mrs. Owens filed her divorce petition based on ss. 1(1) and 1(2)(b) of the Matrimonial Causes Act 1973 (the “Act”). That is, that the marriage had broken down irretrievably. In support, Mrs. Owens sought to prove with 27 specific examples of Mr. Owens’ behavior in support of why she could not be reasonably expected to live with her husband. Mr. Owens did not accept that he had behaved in such a way that his wife could not reasonably be expected to live with him and he defended the petition. Unfortunately, despite finding as fact that the marriage had broken down, the trial judge nevertheless held that Mrs. Owens had failed to prove that her husband had behaved in such a way such that she could not be reasonably expected to live with him, and her petition for divorce was dismissed.

Mrs. Owens appealed first to the Court of Appeal and then to the Supreme Court. Sadly for Mrs. Owens, she was unsuccessful in both appeals. The appellant Courts considered the trial judge had correctly applied the law in evaluating the impact of the Mr. Owens’ conduct on Mrs. Owens and in interpreting s. 1(2)(b) of the Act by conducting the three stage inquiry:

a. By reference to the allegations of behaviour in the petition, to determine what the respondent did or did not do;
b. To assess the effect which the behaviour had upon this particular petitioner in the light of the latter’s personality and disposition and of all the circumstances in which it occurred; and
c. To make an evaluation whether, as a result of the respondent’s behaviour and in light of its effect on the petitioner, an expectation that the petitioner should continue to live with the respondent would be unreasonable.

Given that Mr. Owens does not consent to getting a divorce, Mrs. Owens cannot rely on the ground of two year separation (s. 1(2)(d) of the Act) and is now in the unfortunate position of having to wait until 2020, some five years after first moving out of the matrimonial home before she can commence divorce proceedings (s. 1(2)(e) of the Act).

Hong Kong’s Current Divorce Legal Framework

The Matrimonial Causes Ordinance, Cap. 179 (“MCO”) sets out the governing provisions for the filing of a divorce petition. Similar to England and Wales, in Hong Kong, the sole ground for presenting a divorce petition is that the marriage has broken down irretrievably (s. 11 MCO).

In order to “satisfy the Court” that the marriage has broken down, s. 11A(2) MCO sets out five different scenarios which the petitioner can rely upon. Of the five options, three of them relate to the other party’s conduct – namely, adultery (s. 11A(2)(a) MCO), unreasonable behavior (s. 11A(2)(b) MCO) and desertion for a continuous period of at least one year immediately before the filing of the Petition (s. 11A(2)(e) MCO). The remaining “non-conduct” alternatives are that the parties have been separated for one year and the respondent agrees to the divorce (s. 11A(2)(c) MCO) or if the parties have separated for two years in which case consent to divorce is no required (s. 11(2)(d) MCO).

Therefore, if an unhappy spouse wishes to have a non-contentious start to divorce proceedings, they need to wait either one year before proceeding with the other’s consent or waiting two years before being able to start the process to formally end the marriage. On the other hand, if the unhappy spouse decides to present a divorce petition without delay, they are required to particularise the other spouse’s conduct (subject to the statutory restriction that parties be married for a minimum of one year before filing a petition of divorce under s. 12 MCO).

What is “Unreasonable Behaviour”?

In Hong Kong, a s.11(2)(b) conduct based petition is commonly referred to as an “unreasonable behavior petition” whether based on mild particulars or otherwise. “Mild particulars” petitions are drafted in a manner which limits or reduces the offence that could be caused to the respondent in the hope that this will prevent the petition from being defended. A mild particularised petition would reserve the petitioner’s right to amend particulars and to plead more details in the event that the respondent seeks to defend the petition, and is typically worded as follows:

“The Respondent has behaved in such a way that the Petitioner cannot reasonably be expected to live with the Respondent. The Petitioner will rely upon the matters hereinafter alleged:

i. The Respondent has lived his / her life to the exclusion of the Petitioner by demonstrating different values and attitudes.
ii. The Respondent has failed to communicate with the Petitioner in a manner commensurate with a happy marriage.
iii. The Respondent has failed to show love and affection to the Petitioner.
iv. The above has caused the Petitioner considerable distress such that he / she can no longer remain married to the Respondent.”

At the other extreme, a fully particularised conduct based petition means anything goes.

In the Owens v Owens Supreme Court judgment, Lord Wilson at paragraph 37 helpfully explained that “’unreasonable behaviour’ has always been the family lawyer’s shorthand description for the content of the subsection. But it is wrong. The subsection requires not that the behaviour should have been unreasonable but that the expectation of continued life together should be unreasonable”.

Lady Hale similarly echoed his Lordship’s misgivings on the misleading shorthand concept of “unreasonable behaviour” and went on to say that the search for “unreasonable behavior” in turns leads to a search as to who is more to blame, which is also irrelevant.

Regrettably, in Hong Kong the adoption of this inaccurate shorthand is commonplace. In reading the “mild unreasonable behavior particulars” as set out above, it is understandable why many lay clients will find it difficult to appreciate that the MCO does not require a causal connection between the respondent’s conduct and the marriage breaking down despite the petitioner being required to particularising the respondent’s conduct in order to satisfy the court that the marriage has broken down irretrievably.

The manner in which the respondent’s alleged conduct is characterised in the petition often sets up the tone for the rest of the proceedings. While many lawyers actively encourage clients to petition using mild unreasonable behaviour particulars, this is not a guarantee that the respondent will or can accept that their conduct was in any way a contributing factor to the breakdown of the marriage. Family law practitioners will have at some point in their career encountered the difficult respondent who is simply unable to accept the mildest of conduct particulars and insists that the petition should actually proceed on the petitioner’s conduct despite firm and repeated advice that the court will not “… countenance any attempt to engage in costly and often futile retrospective investigations of the failed marriage which tend to deplete the parties’ (and the courts’) resources and to increase antagonism and discourage settlement”. (LWK v DD (2010) 13 HKCFAR 537)

Proposals in the Ministry of Justice Report

In the aftermath of Owens v Owens, the UK government conducted a 12 week public consultation and published in April 2019, its consultation paper on reform proposals on the legal requirements for divorce. The UK Government accepted that reform was required, to “make divorce law consistent with the non-confrontational approach taken in wider family law and to recognize that a legal process that does not introduce or aggravate conflict will better support adults to take responsibility for their own futures and, most importantly, for their children’s futures.”

In acknowledging that the current divorce procedure in England and Wales was working against those stated principles and in fact mandating an adversarial process, the proposed reform to the
law are:

i. Retention that a marriage or civil partnership had irretrievably broken down as the sole ground on which a divorce or dissolution could be granted;

ii. Introduction of the option of a joint application;

iii. Removing the ability to contest the granting of a divorce, apart from the pre-existing and exceptional legal grounds of jurisdiction, litigation capacity and coerced or false application.

iv. Introducing a minimum time frame of six months from the filing of the petition to the decree absolute and the retention of the pronouncement of the decree nisi stage.

v. Retaining the bar on divorce and dissolution application in the first year of marriage; and

vi. Modernising various terms used within the divorce process.

It remains to be seen when the UK government will have the parliamentary time and opportunity to enact changes to their legislation, but at this stage, it would appear unlikely to be early enough to provide any relief to Mrs. Owens.

Change in Hong Kong?

Unlike England and Wales, in Hong Kong we already enjoy the benefit of shorter periods of separation for non-conduct based divorce. There is also the option for both parties to file a joint application for the dissolution of the marriage albeit the parties are still required to have separated for at least one year (s. 11(b) MCO).

The two proposed reforms most relevant to Hong Kong would be to replace ss. 11A and 11B of the MCO with notification to the court by one or both parties that the marriage has broken down irretrievably and the removal of the ability for the respondent to defend the divorce.

It is well-established that it is not the role of the Court to investigate the reasons as to the why a marriage has broken down, and particulars in the petition usually do not have a bearing on the division of financial assets or children’s arrangements. A divorce should only ever be refused for legal grounds (eg jurisdiction, legal validity of the marriage, procedural compliance) rather than because the other spouse is unable to accept the marriage has come to an end or refuses to allow the divorce to proceed. Rather than assisting parties to focus on the future, the current legislation in effect mandates parties to rehash perceived wrongs of the past. Conduct based grounds of divorce simply encourages delay and on occasion, are used by respondents to simply to frustrate the petitioner’s wish to move on with their lives.

Although at first glance separation based petitions appear to be a viable alternative to conduct based petitions, and change to the current grounds is not necessary, in reality separation based divorce may not be a feasible option for all couples, for example victims of domestic violence or families living in government housing. In cases where parties do not the option to separate prior to divorce, separation based divorce only extends the suffering and distress, particularly if the family cannot afford to live in two distinct households pending ancillary relief orders being made.

In order for those practicing family law “… to embrace a more proactive mindset to resolve family disputes through effective and proportionate means…” (LLC v LMWA [2019] 2 HKLRD 529), it is suggested that the starting point must be in the form of the petition and the manner in which divorce proceedings commence. It is clearly a herculean task to ask spouses to be “settlement minded” when the opening volley is an explosive conduct based petition.

Conclusion

The MCO was first enacted in 1967 and s. 11A was last amended in 1995. Since then, family law has developed in the areas of equitable division of assets between spouses, recognition that a marriage is a partnership of equals and tentative progress towards anti-discrimination laws in Hong Kong. It would be a natural evolution for the law to similarly change to have divorce petitions not requiring a list of the respondent’s conduct to satisfy the court that the marriage has broken down. There is no good reason for the law to seek to prolong the legal relationship for longer than is necessary to ensure that the appropriate arrangements are made for the future. A statement of irretrievable breakdown of the marriage filed to the court, is a neutral and non-confrontational approach and thus should be adopted in Hong Kong given that it is in line with the modern attitude in dealing with family disputes. If there is any chance for a healthy post-divorce relationship to develop between ex-spouses particularly when there are children involved, there must be a more positive and constructive start to the divorce process.

Jurisdictions: 

Barrister-at-Law, Central Chambers

Sasha Allison is a barrister specialising in family law. She works on matters involving legal issues spanning from womb to beyond the tomb. Prior to joining the Hong Kong Bar, Sasha was a practising solicitor in Hong Kong working in the family law department of a well established local law firm. She is a trained family mediator, a Fellow of the Institute of Chartered Arbitrators and tutors family law in the PCLL programme at the Hong Kong University.