X v Y

Judgment Date21 June 2002
Judgement NumberFCMC536/1997
Subject MatterMatrimonial Causes
CourtFamily Court (Hong Kong)
FCMC000536/1997 X v. Y






X Petitioner
Y Respondent

Coram: H H Judge Gill in Court

Date of Hearing: 21 June 2002

Date of Ruling: 21 June 2002




1. This is a judgment summons. It derives from the outcome of an ancillary relief application brought by the respondent wife against the petitioner husband as a consequence of his petition for divorce leading to a dissolution of their marriage.

2. The ancillary relief was contested and the hearing ran for 16 days during the latter part of 1999. The judgment was handed down on 6 December 1999. In the course of it the judge dealt with the relevant history in some detail, only the bare essentials of which I need to repeat here.

3. Suffice to say the husband's mother was known as the second wife of a man the judge described as "well known as an extremely wealthy and influential businessman". Notwithstanding her title as wife, there was no form of marriage. When the co-habitation began she was already pregnant by another man. When the child, the petitioner, was born her co-habitee agreed to have his name recorded on the register as father though he was not. Brought up in the embrace of family of considerable wealth, the petitioner led a comfortable existence which included education abroad; but he received no particular largesse.

4. When he was adult he was given the opportunity to make his mark in one or other of the family companies, but he failed to do so. In fact, he attempted various ventures of his own of an entrepreneurial nature which more or less failed. One was particularly disastrous. The petitioner found himself central in a scheme to supply Russian-made AK-47s to Yugoslavia in the war with Croatia. The arms were routed through the USA. This amounted to a criminal offence there. The petitioner flew to the USA but was arrested on arrival, charged and found guilty. He was sentenced to 6 months' imprisonment and a fine of US$100,000. On each of these occasions he was bailed out with cash from family resources, including $2 million for legal fees incurred during the debacle in the USA.

5. At the time of the ancillary relief hearing there was a dependent child in the custody of the respondent. Her claim was for maintenance for the child and a lump sum of sufficient quantum to provide a home for herself and the child and a capital fund for investment to meet her ongoing expenses. The figure sought was just under $15 million. The judge decided that the clean break associated with a lump sum award was appropriate in the circumstances. In considering what the petitioner could afford he wrote:

"I am satisfied that the husband's current income, $31,360 per month, fully represents the extent of his earning capacity. His previous independent business ventures have ended in either failure or disgrace. He has no intention of trying again. He has no worthwhile assets and I cannot see there being any real possibility of there being any change in his financial situation in the foreseeable future.

But what he does have and what I cannot overlook is that he comes from an extremely wealthy family. This does not mean that I am to make any award that the wife seeks on the assumption that it will be underwritten by the family. But at the same time I cannot overlook the wealth. On two occasions, firstly the husband's losses at ECEC and Fival and, secondly, on his arrest in the USA he has been financially bailed out by his family. His resources include his ability to obtain loans, whether on a commercial basis or on an informal family basis, which may or may not need to be repaid."

6. The judge proceeded to order maintenance for the child in the sum of $5,000 per month and a lump sum to the respondent of $5 million. He gave the petitioner six months to raise this, thus that it be paid by 6 June 2000; pending payment the petitioner was ordered to pay $17,500 per month to her as periodical maintenance.

7. The petitioner did not pay the lump sum. Given leave to do so the respondent issued this judgment summons in February 2001. The amount sought includes the sum of $446,290 being interest at the judgment rate from the due date, being 6 June 2000, to the date of the praecipe, being 2 February 2001.

8. There were other claims for arrears of periodical maintenance but these have since been paid. The petitioner is continuing to pay $17,500 per month and that and the $5,000 per month for the child is up to date. Indeed, there is now in place an attachment of income order made in November 2001.

9. Before going to the hearing itself it is appropriate to quote again from the judgment. The judge was giving consideration to the petitioner's prospects of inheriting capital from his parents, or rather his mother and the man registered as his father. The judge said:

"It is quite impossible for me to find that the husband in this case has any real possibility of receiving any capital in the foreseeable future. The only suggested source of such capital is inheritance from his parents. ...... What we do know is that relations between the husband and his father have never been good. [The father] clearly feels disappointed that his son did not properly apply himself in the family businesses. Relations were strained by the debts incurred by the husband at ECEC and the Fival fiasco. On top of that came the husband's arrest and detention in the USA. Not only did these wrongdoings, as they were described, result in considerable expense to [the father], but they must have caused acute embarrassment. Now there are these proceedings necessitating mother and father and others being subpoenaed. It is clear that that itself has resulted in embarrassment to [the father] and has not done anything to heal the rift between himself and his son. A change of attitude is, I suppose, possible but I cannot use that as a basis for finding that the husband has a real possibility of acquiring a capital sum on the death of his father whenever that might be. Again, there is no evidence that the husband's mother has any substantial assets that she is likely to leave her son. Assuming the father dies first, I can well imagine that he will provide sufficient funds to maintain his wives but I cannot take it further than that."

10. It is apparent from the two excerpts from the judgment that I have reproduced that after 16 days of...

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