In the landscape of Hong Kong matrimonial law, most marriages end through divorce. However, a recent judgment in the District Court, DC v. AS [2026] HKFC 7 (FCMC 807/2022), provides a rare look into the law of nullity (annulment). While the case centred on the “wilful refusal to consummate” a marriage, the learned Judge’s remarks offer a stern warning to both litigants and solicitors regarding procedural discipline, the purpose of pleadings, and the responsible use of public funds.
The Case: A Short-Lived Union
The Petitioner (the Husband) sought to annul his 14-day marriage on the grounds of non-consummation. Despite a five-year pre-marital relationship, the Husband claimed that post-wedding intoxication and a subsequent breakdown in the relationship prevented the marriage from ever being legally consummated. The Wife argued that sexual intercourse had occurred on the morning after the wedding, but the Court ultimately found her testimony lacked the necessary particulars and credibility. However, the Husband’s legal victory was overshadowed by the Court’s scathing critique of how the case was conducted by both legal teams.
The Legal Ground: Wilful Refusal to Consummate
Under Section 20(2)(b) of the Matrimonial Causes Ordinance (Cap. 179), a marriage is voidable if it has not been consummated due to the wilful refusal of the respondent. To succeed in such a petition, the court must be satisfied of three elements: -
- Post-marital sexual intercourse did not occur (pre-marital sex does not count toward consummation);
- The Petitioner made an express or implied proposal to consummate the marriage; and
- The Respondent refused the proposal without just excuse, demonstrating a settled and definite decision.
The case hinged on a factual dispute regarding the morning of 7 March 2021, i.e. the day after the wedding. The Wife asserted that they had consummated the marriage that morning, but she provided these details only during oral testimony at trial. The Husband maintained that no sexual intercourse took place because he was suffering from a severe hangover, including stomach cramps and exhaustion from the wedding festivities.
His Honour Judge I. Wong found in favour of the Husband. The learned Judge noted that the Wife’s pleadings were “fatally brief” and lacked particulars. Furthermore, the Husband’s version – that he was physically unfit for intimacy due his condition – was deemed more credible. The Court also noted that pre-marital sex, which the parties did not dispute, does not legally constitute “consummation”.
A significant aspect of this case was the proposal to consummate. The Court held that a husband does not necessarily need to make a formal, verbal request for sex. By providing a matrimonial home and begging the Wife not to leave during their arguments, the Husband had made an implied proposal to live as a married couple, which inherently includes the intention to consummate.
Conversely, the Wife’s decision to move out after only 14-days marriage and her refusal to return was classified as a “wilful refusal” without just excuse. The Court noted that even in oral testimony, the Wife admitted that once she moved out, she had no intention of returning.
Pleadings: A Map, Not a Memoir
A critical takeaway from this judgment is the Court’s reminder that pleadings are intended to define the issues, not to blur them. His Honour Judge I. Wong described the parties’ pleadings as being in “hopeless shape” and “out of focus”. Instead of stating material facts, the legal representatives pleaded unnecessary evidence, lengthy submissions, and irrelevant history.
The Court emphasised the following expectations:
- Precision: Under the Rules of the High Court (Order 18), which apply to matrimonial proceedings, every pleading must contain the necessary particulars to prevent “trial by surprise”. In a nullity case, this means specific details regarding the circumstances of the proposal and the refusal of consummation.
- No Venting: The Court is not a place for clients to vent personal history or grievances. Airing years of emotional history in legal documents forces the Judge to sift through a sea of information to find the actual legal issues.
- Efficiency: Vague or “liberal” pleadings create a “vicious cycle” where unnecessary affidavits are filed, wasting judicial time and significantly increasing costs.
The judgment highlights that a solicitor’s role extends beyond acting as a mouthpiece for the client; they must also assist the court and act as professional gatekeepers. Solicitors have an essential duty to provide clear advice on: -
- Cost Consequences: In this case, although the Husband won, he was only awarded one-third of his costs. The Court used this “broad brush” approach to express disapproval of the disorganised litigation. Solicitors must warn clients that undisciplined litigation can lead to a loss in the pocket, as the Court has the power to reflect its disapproval of undisciplined litigation through costs orders.
- Legal Utility: Solicitors must advise whether a legal battle is worth fighting. Here, the Husband had already conceded that the Wife’s financial claims (ancillary relief) would be treated the same whether the marriage ended in divorce or nullity. Therefore, the intensive fight over the “label” of the marriage’s end had little practical impact on the final financial outcome.
Legal Aid and the Responsibility to Public Funds
The Judge raised a significant point regarding Legal Aid. The Respondent contested the nullity petition using public funds. However, since the outcome would not change her financial rights, the learned Judge questioned the merit of the defense. The Court directed the judgment to the Director of Legal Aid, noting that solicitors assigned by the Legal Aid Department have a continuing duty to evaluate the merits of a case as it progresses to ensure public funds are used responsibly.
Conclusion: The Need for Litigation Discipline
This judgment serves as a reminder that family law proceedings require more than just a factual grievance; they require professional discipline. For litigants, the lesson is clear: the court expects a focused presentation of the legal issues. For solicitors, the duty is to manage client expectations, provide realistic advice on costs, and ensure that the court’s time – and public funds – are used with respect for procedural rules.
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