“No-Fault Divorce” in England: should Hong Kong follow suit?13Feb2023
2022 was a big year for divorce law in England & Wales. With the introduction of the Divorce, Dissolution and Separation Act 2020 coming into force on 6 April 2022, anyone seeking to petition for divorce or dissolution of marriage no longer has to apportion blame on their spouse.
Before the new law came into effect, there is only one ground for divorce, namely the marriage has broken down irretrievably; parties seeking divorce or dissolution must then rely on one of five facts for the irretrievable breakdown: separation for specific periods (2 years with consent or 5 years without consent), adultery, desertion or conduct of the other party (i.e. unreasonable behaviour).
The terminology “unreasonable behaviour” is somewhat misleading as the law does not require that the behaviour of a spouse should have been unreasonable but that the expectation of continued life together with that spouse should be unreasonable. Specifically, the Petitioner will plead that the Respondent has acted in such a way that he or she cannot be reasonably expected to live with the Respondent. Often, this can be a hard pill to swallow for the Respondent – and understandably so.
In practice, nevertheless, we see many “unreasonable behaviour” petitions, which is conduct-based. Although it is well established principle that the Court’s role is not to investigate the reasons behind the breakdown of a marriage, a conduct petition can lead to resistance towards settlement.
“No-Fault Divorce” removes the blame element and hopefully, also, the resistance. This allows focus on financial and children’s arrangements, rather than time, effort and emotions wasted on addressing the particulars of “unreasonable behaviour”.
The need for change: Owens v Owens  2 FLR 1067
The case of Owens v Owens in England highlighted the need for change. Mrs Owens petitioned for divorce in May 2015 citing unreasonable behaviour. Mr Owens disagreed and defended the petition as he did not consider his behaviour to be unreasonable. The petition was dismissed after a Judge considered that there was no behaviour pleaded in the Petition that Mrs Owens could not have been reasonably expected to live with and there was no irretrievable breakdown of marriage. Specifically, the Judge identified that the particulars pleaded (i.e. the allegations of unreasonable behaviour” were “flimsy”, “anodyne” and “scraping the barrel”. The Judge concluded that the husband’s behaviour, as pleaded, amounted to “minor altercations of a kind to be expected in a marriage”. This meant without the consent of Mr Owens, Mrs Owens had to wait until 2020 (5 years post separation without consent) to be granted the divorce.
Mrs Owens, dissatisfied with the first instance decision, appealed. ]
On appeal to the Supreme Court in 2018, the Supreme Court judges also agreed with the Court of First Instance. However, they admitted they felt uneasy by the decision, noting however it is not their role to change the law.
This case was the catalyst for the campaign for “No-Fault Divorce”. It took another 4 years for the law to take effect.
The need for change in Hong Kong
In Hong Kong, we still rely on fault behaviour or separation similar to England or Wales before the 2020 Act. It is common for parties to rely on anodyne or mild particulars to promote settlement which it often does.. The recent case of K (江) v W (黄)  HKFC 200 is a rare example of a contested petition and sets out the Hong Kong Court’s approach in cases of “unreasonable behaviour”. Notably, there was significant discussion about the common practice of lawyers to rely on mild behaviour petitions to promote settlement between parties, but which had caused Mrs Owens to rely on incomplete evidence of the Respondent’s behaviour.
In K v W, the parties separated in July 2021 when the Husband moved out of the former matrimonial home. He petitioned for divorce in August 2021 alleging the following behaviours against the Wife:-
- the Wife kicked him in the street due to difference in their views;
- the Wife often threw tantrum without a reason towards him. She would leave their home 2 or 4 times a week after throwing tantrum; and
- the Wife often unreasonably demanded him to make extra payment for expenses or expenses which were beyond his means and without regard to debts already owed, including spending frivolously without his knowledge (spending unnecessarily on purchasing cats, re-installing air conditioners, taking out big-ticket loans for renovations) . She failed to discuss with him before she made important decisions.
The Wife sought to resist the divorce and raised the following defences:-
- she does not agree with the particulars of behaviour alleged by the Husband;
- it was the Husband who chose to evade from their family problems by not returning to home or losing contact;
- the Husband unilaterally divorced her in order to avoid his family responsibility; and
- the Husband physically assaulted her during the marriage.
The Court adopted the 3-stage enquiry approach in Owens v Owens  2 FLR 1067 when deciding this case of “unreasonable behaviour”, namely:-
- by reference to the allegations of behaviour in the petition to determine what the respondent did or did not do;
- to access the effect that the behaviour had upon this particular petitioner in light of the latter’s personality and disposition and of all circumstances in which it occurred; and
- to make an evaluation whether, as a result of the respondent’s behaviour and in the light of its effect on the petitioner, an expectation that the petitioner should continue to live with the respondent would be unreasonable.
The Judgement clearly sets out the Court’s findings.
Stage 1: did the Wife behave as alleged?
This is a factual exercise. The Court analysed the Wife’s behaviour as alleged by the Husband by examining the facts presented by the Husband. On evidence, the Court foundamongst other things that:
- the Wife did often throw tantrum over trivial matters throughout the marriage, after which she would not say a word to the Husband, but leave home until the next morning. She would continue to throw tantrums by throwing items such as shoes and books. The Husband did try to soothe her time and time again;
- the Wife did often make unreasonable financial requests or decision, which caused the Husband to bear the heavy financial burden for the family; and
- the Husband allowed the Wife to manage his finances, but the Wife did not disclose to the Husband her actual income, nor was her income ever paid into the joint account. It was only the Husband who paid money into the joint account.
Stage 2: effect of the Wife’s behaviour on the Husband
The Court found that the cumulative effect of the Wife’s behaviour had led to Husband to a breaking point taking into account his personality which the Court has observed to be “easy-breezy” and “rather care-free”. The Court considered him to be a person who wished to enjoy life, rather than being restrained, especially when it came to finances.
Stage 3: evaluate if it is unreasonable to expect the husband to continue to live with the wife
Upon evaluation and due to the cumulative effect of all the matters, the Judge came to the conclusion that it is unreasonable to expect this Husband to continue to live with this Wife. Their marriage had broken down irretrievably.
The Judge then made directions for the Parties to proceed with their ancillary relief proceedings.
Family practitioners often advise that if one party to a marriage wishes to divorce, they will become divorced. It is an inevitability and simply a matter of time.
It may take time for a spouse to come to terms that the marriage has broken down and accept a mild behaviour petition. It may take time for a spouse to appreciate that defending a petition can become a costly and ultimately futile exercise, especially if they agree that the marriage has broken down or a separation period of over a year has occurred. Parties may themselves use separation periods to cool off before petitions are filed.
In K v W, the Petition was filed in August 2021. Trial took place on 28 August 2022 and this judgment was handed down in October 2022. Over 1 year had passed since the issuance of the Petition and the decision made that the marriage has broken down. The associated time delay and costs incurred will vary from case to case, but one thing is clear: it is often driven primarily by emotions or a misunderstanding of the law, both of which can be prevented with statutory change.
Behaviour petitions in Hong Kong often rely on the mild and anodyne particulars. The purpose of this is to proceed before the relevant separation period has elapsed and to reduce potential conflict and offence to the respondent spouse in hope to avoid (i) the petition being defended and (ii) a lengthy trial on the Main Suit of the divorce.
In K v W, the Husband did not rely on these standard facts. If he had, there is very real possibility that the Court may not have accepted the behaviours as pleaded as was see in Owens v Owens. Further delays may arise if the Petition had to be amended.
With over 10,000 new petitions each year, the Hong Kong Family Court is inundated with a heavy case-load. The Court also addresses ongoing cases, as well as adjudicating on matters relating to children and/or finances after a divorce is finalised. The statutory change in the UK has been effective for less than a year and so it remains to be seen how effective it has been in reducing conflicts, costs and resources. However, it is commonly accepted that a “No-Fault” divorce regime will undoubtedly help to end the blame game, help parties reduce conflict, especially from the start, and allow parties to focus on more pertinent matters at hand and free invaluable court resources.
Joanne Brown and Joanne Lam
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Disclaimer: This publication is general in nature and is not intended to constitute legal advice. You should seek professional advice before taking any action in relation to the matters dealt with in this publication.