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Titlegrounds for divorce and the time restriction on petitions for divorce within three years of marriage
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Document Text Contents
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THE LAW REFORM COMMISSION
OF HONG KONG


REPORT


GROUND FOR DIVORCE AND
THE TIME RESTRICTION ON PETITIONS FOR DIVORCE
WITHIN THREE YEARS OF MARRIAGE
______________________________________________








Introduction 1

Why consider the law on divorce? 1
Terms of reference 2
Seeking views: a process of consultation 2
Format of the report 3


Part I - Grounds for divorce: the case for reform 4

Chapter 1 - Background to grounds for divorce 4

Introduction 4
The social background 5
Legal development 6
Background to dissolution of Chinese customary marriages 10


Chapter 2 - The current law on grounds for divorce 14

Irretrievable breakdown and the five facts 14
Adultery 15
Behaviour 17
Desertion 18
Separation for two and five years 20
The defence of "grave financial or other hardship" 21
Withholding of decree absolute - respondent's financial position 23
Special procedure divorce 24
Conciliation 25
Dissolution of Chinese customary marriage - the law 26

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applicant must have been "something out of the ordinary,"250 which has
"transcended the inevitable hardship caused by divorce." 251 Thus, the
"normal standard of hardship" 252 suffered by the petitioning spouse,
especially in the cases of adultery or behaviour, would not usually suffice.253
However, the test is a subjective one: the court is to consider the effect of the
alleged conduct on the particular petitioner regardless of how the same
conduct would affect the reasonable petitioner.254

4.7 A Hong Kong example of this principle is the case of Kwan Bui
Lock v Isabelle Stamm Lock,255 where the applicant husband had become
extremely nervous and depressed and had developed a speech problem after
his wife's admitted adultery. Medical evidence was produced that the
husband's condition was likely to continue to worsen until the marriage was
dissolved. The court accepted that, due to the husband's condition, he would
suffer exceptional hardship were he to have to wait until the marriage was
three years old before being able to apply for divorce.

4.8 However, it has been held that, in deciding whether a case for
exceptional hardship or depravity is made out, the court does not determine
whether the allegations are true, as that would amount to the judge hearing
the petition himself. His role instead is to consider whether if true, the
allegations would satisfy the test of exceptional hardship or depravity.256




4.9 This would appear to have always been difficult to establish and
the courts "have found it difficult to describe any particular conduct as
exceptionally depraved" 257 particularly in the light of changing norms of
behaviour in recent years. It would seem that it is not confined to sexual
depravity and perversions and that even "extremely bad adulterous conduct"
would not suffice.258 In one case,259 the court was unable to find the
respondent's homosexual behaviour to be "exceptionally depraved".
However the applicant wife succeeded in obtaining leave to petition for
divorce on the ground that her knowledge of the truth about her husband
would continue to cause her exceptional hardship so long as the marriage
continued.




250 Fay v Fay [1982] AC 835 (HL).
251 The English Law Commission's Working Paper, op cit n 245, para 17.
252 Brewer v Brewer [1964] 1 WLR 403, at 413, per Pearson LJ.
253 The English Law Commission's Working Paper, op cit n 245, para 17.
254 Pegg, op cit n 44, at 70.
255 DC, MP No 106 of 1979.
256 G v G (1968) 112 Sol Jo 481. See also the English Law Commission's Working Paper, op cit

n 245, para 14.
257 Pegg, op cit n 44, at 69.
258 The English Law Commission's Working Paper, op cit n 245, para 20.
259 C v C [1980] Fam 23.

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Reconciliation prospects and children

4.10 Even where a case for exceptional hardship or depravity has
been established, the court must take into account certain other factors before
granting the leave to petition for divorce. Section 12 continues:




4.11 In relation to the question of whether attempts at reconciliation
have been made, an application was refused in a Hong Kong case where a
Chinese husband, who alleged that his wife had committed adultery with two
European servicemen, made it clear to the court that he would not consider
any attempt at reconciling with his wife, because of the loss of face
involved.260



260 Chan Wing Ming v Chan Li Li [1957] HKLR 474.

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