HWH v OSS (Rescission of Decree Nisi: False Representations) [2024] 4 HKLRD 315, [2024] HKFC 149
Eugene Yim represented the 1st applicant in HWH v OSS (Rescission of Decree Nisi: False Representations) [2024] 4 HKLRD 315, [2024] HKFC 149.
In 2019, H and W jointly applied for divorce on the ground that they had been separated from each other as of July 2016. A decree nisi was granted in May 2020. H and W had not, in fact, been separated and had made false representations (the False Representations) to the Court. Subsequently, the False Representations were discovered. The parties agreed that by reason of the False Representations, the decree nisi ought to be rescinded. The Court then considered whether it had jurisdiction to rescind the decree nisi and the next steps if the decree was rescinded.
Held, ordering that the recission of the decree nisi be fixed to be heard in open court at a later date, that:
- (1) There was no written provision, whether under the Matrimonial Causes Ordinance (Cap.179) (the MCO) or the Matrimonial Causes Rules (Cap.179A, Sub.Leg.), allowing the Court to rescind the decree nisi under the circumstances of this case. However, as per s.10 of the MCO, where there was no special provision in the MCO with reference to procedure, practice and power of the court, reference could be made to the same for the time being in force in the High Court of Justice in England. (See paras.14-16.)
- (2) The English courts have held that the power to rescind and the need for the power were too obvious to need mentioning: the court’s ability to control proceedings implied and justified the need to bring them to an end. The fact that both parties sought rescission was a potent but not necessarily overwhelming factor. There was no doubt the Court had the power to rescind the decree nisi in this case. As the court had jurisdiction to control the proceedings before it, the power to rescind could be exercised on its own motion. Even where there was no express statutory provision allowing a party to apply for rescission, a party may make such an application to invite the court to invoke its power (S v S (Rescission of Decree Nisi: Pension Sharing Provision) [2002] 1 FLR 457 applied, TWY v CWC [2010] HKFLR 5, YY v QY (FCMC 5263/2012, [2015] HKEC 102) considered). (See paras.17-22.)
- (3) The decree nisi should be rescinded in this case. False Representations were made to deceive the Court into granting a decree nisi ; the Court could not turn a blind eye and proceed with ancillary relief. Also, marriage as a social institution was still respected and should not be dissolved at will. The law did not allow marriage to be dissolved merely by consent of the parties (Moynihan v Moynihan (Nos 1 and 2) [1997] 1 FLR 59; Rapisarda v Colladon [2015] 1 FLR 597 applied). (See paras.23-26.)
- (4) As there was an element of public policy involved, the present case should be drawn to the attention of the Secretary for Justice, to consider whether to take steps pursuant to s.16(1)(b) of the MCO. In any event, this case had to be referred to the Secretary for Justice for investigation or further action. (See para.27.)
- (5) If a false representation went to the jurisdiction of the court to entertain the petition, the decrees would be void; if any errors made did not go to the jurisdiction to entertain the petition but related to the jurisdiction to grant the decrees, the decrees were just voidable and the court could allow a petition to be amended to keep the decrees valid. In this case, the decree nisi was voidable as the Court had the authority to entertain their application pursuant to s.3(a) of the MCO. However, as H and W’s application was commenced by joint application, there was no petition for W to apply to amend to save the decree nisi . Therefore, notwithstanding the decree nisi was voidable, the proceedings could not be saved by an amendment (Rapisarda v Colladon [2015] 1 FLR 597, M v P [2019] 2 FLR 813 considered). (See paras.28-35.)
[The above is excerpted from the headnote to the report in HKLRD.]
