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L v Y

Judgment Cited authorities 14 Cited in Precedent Map Related
Vincent
Judgment Date27 June 2007
Year2007
Judgement NumberFCMC12396/2006
Subject MatterMatrimonial Causes
CourtFamily Court (Hong Kong)
FCMC012396/2006 L v. Y

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES

SUIT NO. 12396 OF 2006

______________________

BETWEEN

L Petitioner
and
Y Respondent

______________________

Coram : H.H. Judge Bruno Chan in Chambers

Date of Hearing : 7 February, 5, 7 – 9 March, 11 April, 16 & 23 May 2007.

Date of Judgment : 27 June 2007.

______________________

J U D G M E N T

______________________

1. This is the Petitioner Wife’s application for ancillary relief against the Respondent Husband, for herself and the only child of the family, a son now 8 years old, upon the dissolution of their relatively short marriage, but the facts of the case are somewhat unusual, as this is the parties’ 2nd divorce against each other and their 3rd divorce proceedings within the past 10 years.

The Background

2. The parties first married each other on 16th February 1997, when the Wife was then a 26 years old university demonstrator studying for her Master degree at the University of Hong Kong, while the Husband was a 32 years old lecturer at Polytechnic Univeristy. After the marriage they cohabited in their property at Ground Floor, Ting Kok, Tai Po, New Territories (“the Ting Kok Property”) which was part of a 3-storey village house purchased earlier in 1996 together with 2 friends of the Husband, a Mr Chow and a Mr Wong who bought the 1st and 2nd floor respectively. The parties’ ground floor was paid for $1.6 million by means of a loan of $350,000 from the said Mr Chow and a mortgage of about $1 million from Hang Seng Finance Ltd.

3. In about October 1998, when she was in her 8th month pregnancy with the child of the family, the Wife discovered that the Husband was having an affair with one of his students. As a result she left the Husband and moved out of the Ting Kok Property with the son about one month after his birth on 4th January 1999 to reside with her mother in Tseung Kwan O.

4. In October 1999 the Wife then filed her divorce under FCMC No 9875 of 1999 against the Husband and on 6th September 2000 the parties reached a settlement in which the Wife was granted custody of the son and a maintenance order for the Husband to pay her $20,000 per month being $12,000 for the son and $8,000 for her of which $4,000 was to cover her rental expenses. At that time he was earning about $45,000 per month. Subsequently the Husband also transferred his interest in the said Ting Kok Property to the Wife under a new mortgage from the same Hang Seng Finance Ltd, and that she agreed to let the said property back to the Husband, so that he would not have to move, at a monthly rental of $5,000. In addition the Husband also paid the Wife a further sum of $2,000 per month as instalment payment for a previous loan, making a total payment of $27,000 to her per month. The decree of divorce was then made absolute on 27th October 2000.

5. After the divorce the Wife returned to work as a university research assistant, after having obtained her Master degree earlier, while her mother would assist in taking care of her son when she worked, and the Husband remained as an university lecturer.

6. In 2002 the parties agreed to get back together but that they would not inform their respective family of their decision for fear that they would not approve. On 13th March 2002 they registered their 2nd marriage. At about the same time the Wife decided to purchase a property at Park Central, Tseung Kwan O, Sai Kung, New Territories (“The Tseung Kwan O Property”) which was then a non-completed development, for $1,774,500 by means of a mortgage of $1,242,150 from the Bank of China. The Husband was made a joint owner in the purchase so that he would be eligible for housing allowance under his employment.

7. In the meantime and before the completion of the Tseung Kwan O Property in late 2003, the Wife and the son stayed at her mother’s home, while the Husband remained in the Ting Kok Property where the Wife found unsuitable for the son due to his skin problem. In June 2002 the Wife quitted her job to take over the full-time care of the son, although there was a time when she would import some small gifts and accessories for sale on the internet such as eBay for some additional income.

8. In late 2003 the family moved into the new Tseung Kwan O Property and hired a domestic helper, but the Husband found the place too small and too inconvenient for him to go to work, he therefore moved back to stay at the Ting Kok Property during weekdays, only returning to the Tseung Kwan O Property on weekends and holidays.

9. In or about October 2004 the Wife discovered a woman residing in the said Ting Kok Property, and suspected that the Husband was having an affair with that woman known by the name of Natasha, which he eventually admitted. As a result the parties had a heated argument in November 2004, and since then the Husband stopped spending any time at the Tseung Kwan O Property.

10. On 16th March 2005 the Husband instituted proceedings for divorce under FCMC No 2518 / 2005 against the Wife, alleging separation between them since February 1999, and sought custody of their son. Shortly thereafter he also moved out of the Ting Kok property to a rental flat in Hung Hom, Kowloon, and reduced his maintenance payment for the Wife to between $11,000 and $14,000 per month. Later in the same year in about October he purchased his present property at Hilltop Garden, Tai Po (“Hilltop Garden Property”) for $1.5 million by means of a loan and a mortgage from the Bank of China.

11. Not surprisingly, the Wife filed an Answer to the Petition in which she insisted that the parties had only separated from November 2004, but admitting that the marriage had indeed broken down irretrievably. On 14th February 2006 she applied and obtained an order for the Husband to pay her $21,000 per month as interim maintenance for her and the son, and that in the event of the Husband letting out the Ting Kok Property, for which she agreed to authorize him to do so, he shall increase her interim maintenance to $27,000 per month.

12. Earlier on 19th January 2006 the Husband also obtained an order by consent for interim visiting access to the son on alternate Fridays and Sundays afternoon pending the outcome of the Social Investigation Report on the issues of custody and access, which was submitted into court about a month later which revealed that the Husband was no longer seeking custody of the son, and that he would be content for him to be under the custody care and control of the Wife as long as he would continue to have defined access, which was subsequently agreed between the parties in September 2006 to be fixed on alternate Sundays from 10 a.m. to 4 p.m.

13. The parties were also able to resolve their dispute over their divorce when they agreed and obtained an order that the proceedings under FCMC No 2518 / 2005 be stayed so that the Wife could issue a fresh petition for a consensus divorce based on their separation since November 2004 but that, to save time and costs, all the other relevant pleadings filed in that proceedings such as the parties’ Financial Statements be transferred to and used in the fresh proceedings.

14. Pursuant to the agreement on 3rd October 2006 the Wife issued the fresh petition in these proceedings, and on 23rd January 2007 the decree nisi of divorce was granted with the questions of custody / access and ancillary relief adjourned pending the filing of the parties’ new Financial Statement. Eventually the parties were able to agree that custody of the son was to remain with the Wife and that the Husband was to have visiting access from 10 : 00 a.m. to 6 : 30 p.m. on every Saturday, leaving only the question of ancillary relief in dispute, for which the Wife seeks an outright transfer of the Husband’s interest in the Tseung Kwan O property to her, substantive monthly maintenance for herself and the child in the total amount of $39,000, and a lump sum of more than $400,000 to pay off various moneys which she claims that he owes her from an earlier loan, the short-falls in maintenance over the past 2 years, as well as the costs of her former legal representation.

15. The Husband essentially does not dispute the Wife’s claim for the Tseung Kwan O property, but suggests that the transfer of his interest therein to her should form part of a clean break settlement of all her financial claims against him, as he believes that either she is already earning to support herself, or at least has high earning capacity to become financially independent of him, in which case he offers a limited period of monthly maintenance of $8,000 for 1 year to enable her to get back on her feet. As for the child he accepts his obligation towards him and proposes a monthly sum of $12,000 for his maintenance, in addition to continue to pay for his school fees.

16. It was apparent that the parties were too far apart with their respective proposal to reach any settlement. At about the same time the Husband also made an urgent application for reduction of his interim maintenance for the Wife ordered earlier in the previous proceedings, due to alleged changes in his financial situation, and that he might also have to leave the jurisdiction soon for Australia to complete his Ph.D. thesis, it was therefore agreed that the remaining question of ancillary relief be set down for trial as soon as possible, instead of going through the usual procedure under the Pilot Scheme of Financial Dispute Resolution.

The Law

17. In considering the question of ancillary relief, the court is required by s. 7 (1) & (2) of Matrimonial Proceedings and Property Ordinance, Cap. 192 which I set out in full hereinbelow for the benefit of the Wife who is unrepresented : -

“ (1) It shall be the duty of the court in deciding
...

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