Evidence in Matrimonial Proceedings

Oral Evidence

Rule 38 Matrimonial Proceedings Rules (Cap 179A) – r 38 Evidence generally must be given orally. However, Subject to the provisions of rules 39, 40 and 47A and of the Evidence Ordinance (Cap 8), and any other enactment, any fact required to be proved by the evidence of witnesses at the trial of a cause begun by petition shall be proved by the examination of the witnesses orally and in open court.

Affidavit Evidence (includes affirmation)

Rule 39 Matrimonial Proceedings Rules (Cap 179A) – r 39 (1) The court may order – (a) that the affidavit of any witness may be read at the trial on such conditions as the court thinks reasonable; (b) that the evidence of any particular fact shall be given at the trial in such manner as may be specified in the order and in particular –

(i) by statement on oath of information or belief; or
(ii) by the production of documents or entries in books; or
(iii) by copies of documents or entries in books; or
(iv) in the case of a fact which is or was a matter of common knowledge either generally or in a particular district, by the production of a specified newspaper containing a statement of that fact; and

(c) that not more than a specified number of expert witnesses may be called.

(2) An application to the registrar for an order under paragraph (1) shall – (a) if no notice of intention to defend has been given; or (b) if the petitioner and every party who has given notice of intention to defend consents to the order sought, be made ex parte by filing an affidavit stating the grounds on which the application is made.

(3) Where an application is made before the trial for an order that the affidavit of a witness may be read at the trial or that evidence of a particular fact may be given at the trial by affidavit, the proposed affidavit or a draft thereof shall be submitted with the application; and where the affidavit is sworn before the hearing of the application and sufficiently states the grounds on which the application is made, no other affidavit shall be required under paragraph (2).

(4) The court may, on the application of any party to a cause begun by petition, make an order under R.H.C. Order 39, rule 1, for the examination on oath of any person, and R.H.C. Order 38, rule 9, and Order 39, rules 1 to 14, (which regulate the procedure where evidence is to be taken by deposition) shall have effect accordingly with the appropriate modifications.

(5) On any application made – (a) in the District Court, by originating application; or (b) in the Court of First Instance, by originating summons, summons, notice or motion, evidence may be given by affidavit unless these rules otherwise provide or the court otherwise directs, but the court may, on the application of any party, order the attendance for cross-examination of the person making any such affidavit; and where, after such an order has been made, that person does not attend, his affidavit shall not be used as evidence without the leave of the court.

Rule 40 Matrimonial Proceedings Rules (Cap 179A) – r 40(1) The celebration of a marriage outside Hong Kong and its validity under the law of the place where it was celebrated may, in any matrimonial proceedings in which the existence and validity of the marriage is not disputed, be proved by the evidence of one of the parties to the marriage and the production of a document purporting to be – (a) a marriage certificate or similar document issued under the law in force in that place; or (b) a certified copy of an entry in a register of marriages kept under the law in force in that place.

(2) Where a document produced by virtue of paragraph (1) is not in English it shall, unless otherwise directed, be accompanied by a translation certified by a notary public or authenticated by affidavit or affirmation.

(3) This rule shall not be construed as precluding the proof of a marriage in any other manner authorized apart from this rule.

Evidence in the Special Procedure List

Rule 47A Matrimonial Causes Rule (Cap179A) –  r 47A(1) As soon as practicable after a cause has been entered in the special procedure list, the registrar shall consider the evidence filed by the petitioner and – (a) if he is satisfied that the petitioner has sufficiently proved the contents of the petition and is entitled to a decree and any costs for which he prays, the registrar shall make and file a certificate to that effect; and (b) if he is not so satisfied he may either give to the petitioner an opportunity of filing further evidence or remove the cause from the special procedure list whereupon rule 33(2A) shall cease to apply.

(1A) As soon as practicable after a cause has been entered in the special procedure list, the registrar shall consider the evidence filed by the joint applicants and – (a) if he is satisfied that the joint applicants have sufficiently proved the contents of the joint application and are entitled to a decree of divorce, he shall make and file a certificate to that effect; and (b) if he is not so satisfied, he may either give to the joint applicants an opportunity of filing further evidence or reject the joint application.

(2) On the filing of a certificate under paragraph (1) or (1A) a day shall be fixed for the pronouncement of a decree by a judge in open court at a court of trial and the registrar shall send to each party notice of the day and place so fixed and a copy of the certificate but it shall not be necessary for any party to appear on that day.

(3) Within 14 days after the pronouncement of a decree in accordance with a certificate under paragraph (1), any person may inspect the certificate and the evidence filed under rule 33(2A) or (2B) and may bespeak copies on payment of the prescribed fee.