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Aldl v Ftfc And Another

Judgment Cited authorities 17 Cited in Precedent Map Related
Vincent
Judgment Date22 November 2019
Neutral Citation[2019] HKFC 292
Year2019
Judgement NumberFCMC13698/2013
Subject MatterMatrimonial Causes
CourtFamily Court (Hong Kong)
FCMC13698/2013 ALDL v. FTFC AND ANOTHER

FCMC 13698 / 2013

[2019] HKFC 292

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES

NUMBER 13698 OF 2013

________________________

BETWEEN

ALDL Petitioner
and
FTFC 1st Respondent
and
TMPM 2nd Respondent

________________________

Coram: District Judge A. Tse in Chambers (Not Open to Public)
Date of Hearing: 28 May 2018, 27 August 2018 and 21 December 2018
Date of Judgment: 22 November 2019

________________________

J U D G M E N T
(Variation of Maintenance Pending Suit)

________________________

1. This is the Petitioner Wife’s application for inter alia:

(1) An upward adjustment of the maintenance pending suit order dated 26 February 2015 from HK$125,000 per month to HK$230,000 per month; and

(2) Legal costs contribution in the sum of HK$3.6 million or alternatively a monthly sum of HK$300,000 for 12 months for the period leading up to the Financial Dispute Resolution hearing (the FDR).

Issues

2. The 1st Respondent Husband does not dispute that there should be an upward adjustment of the maintenance pending suit or that he has the ability to pay the amount requested. The only issues are quantum and the method of payment.

3. The Husband says that the Wife’s claim for upward variation by more than HK$105,000 per month is manifestly excessive and there has been no material change of circumstances that would justify the significant increase in her purported expenses. The Husband proposed to adjust the sum to HK$126,500 per month, i.e. An upward adjustment of HK$1,500 per month.

4. As for legal costs contribution, the Husband says that the parties had already reached a conclusive and binding agreement for the provision of HK$3.6 million to the Wife by way of a bank loan to be secured against the Wife’s home and only property. The Husband agreed to act as guarantor and he undertook to repay the mortgage loan. In those circumstances, he says that the Wife should not be allowed to unilaterally back out of that agreement. Alternatively, if the Court were to allow the Wife to disregard the agreement, he says that the Wife’s assessment of HK$3.6 million is excessive and unreasonable. He offered HK$600,000 up to the FDR.

Background of the Marriage

5. Both parties were born in 1964 and are now 56 years old. The Husband was born in Hong Kong to very humble beginnings. He was educated in Hong Kong until he completed matriculation. Although his matriculation results were not very good, an opportunity arose when he was in Form 6 where he and his elder sister could study high school in Australia. Because of financial constraints, his elder sister had to give up this opportunity. The Husband went to Australia alone to attend high school in 1983. He was subsequently offered a place to study medicine in a university in Australia. He began reading medicine in 1984. At the same time, he had to work part time to subsidize his expenses.

6. The Wife and her family had emigrated to Australia. She met the Husband in 1984, when she was studying for her Honour’s degree in Occupational Therapy. The parties started serious dating in 1986 and the Husband was introduced to the Wife’s family. The Wife’s late father was very fond of the Husband and had great sympathy for him. Although the parties were not yet married, the Wife’s father invited the Husband to move in with them to alleviate the Husband’s financial burden. At the time, the Husband expressed his concerns about the political situation in Hong Kong after 1997. Although the Husband had yet to complete his studies, the Wife’s father suggested that the parties should get married to enable the Husband to become an Australian resident. As a result, the parties were married in October 1987. However, they only held their church wedding in 1990 after the Husband completed his studies.

7. In the meantime, the Wife and her family continued to render assistance to the Husband and his family. The Husband wanted to bring his entire family to Australia under the “family union” category which required no investment. At the time, the requirement for “family reunion” was that there at least two immediate members of the applicant’s family had to be Australian permanent residents or citizens. Upon the Husband’s request, the Wife’s father arranged for the Wife’s younger brother to marry the Husband’s younger sister. However, after the Husband’s family returned to Hong Kong after they obtained citizenship. The marriage between the Wife’s brother and the Husband’s sister also ended in divorce.

8. The Wife graduated from university in mid-1988. She immediately started working. She became the sole bread winner and was responsible for the parties’ expenses, including mortgage repayments of their property in Australia. Although the Husband’s mother gave the parties a gift of AUD $120,000 as a down payment for their property in Australia, the parties continued to live with the Wife’s parents and used their own property for rental income.

9. In 1991, upon the Husband’s request, the parties came back to Hong Kong to enable the Husband to receive specialist training and further his career. He obtained his qualification as a specialist in Anaesthesia in 1998.

10. On the other hand, because of the move, the Wife gave up her place in a 3-year full time PhD programme with full scholarship assistance in Australia. She got an academic position in one of the Universities in Hong Kong. She enrolled in the PhD programme in Hong Kong in 1994 and received her PhD in 2000. She was promoted to Assistant Professor in 1995. Their income was deposited into their joint account.

11. After their arrival in Hong Kong, the parties initially lived with the Husband’s mother. They later rented and bought a flat in the same estate. In 1992, the parties moved into quarters provided by the University which was 1,400 sq.ft. Their initial property was sold and the proceeds were used to purchase the former matrimonial home in their joint names in 1995. In 1997, they purchased a car park at the former matrimonial home in their joint names. Between 1993 and 1996, the parties also purchased 2 properties in Australia. These properties were soon sold.

12. In about April 2006, the Husband left the employment of the Hospital Authority and received superannuation of over HK$2.3 million. At about the same time, he began to stay away from the former matrimonial home with increasing frequency. However, he would still return about once a week. They continued to sleep in the same bed and the Wife continued to cook and do laundry for him. The Wife says that she confronted the Husband about this and he admitted to having an extra-marital affair. This was denied by the Husband. Instead of paying his entire earnings into their joint account, the Husband began to pay HK$150,000 (which he alleged to be half of his income) into the joint account as maintenance for the Wife. The Wife says that the Husband was in fact earning a lot more than HK$300,000 per month at the time.

13. The Wife says that in about 2007 or 2008, she contracted a chronic medical condition called “Myalgic Encephalomyelitis”, more commonly known as “Chronic Fatigue Syndrome” (CFS). The Husband accepts that this illness or condition exists but denies that the Wife is suffering from it. In June 2009, the Wife resigned from the University and basically became financially dependent on the Husband.

14. In July 2012, the Husband ceased to return to the former matrimonial home. He alleges that the parties reached a full and final agreement on the distribution of assets. This is denied by the Wife. The former matrimonial home was sold to the Husband’s mother for HK$6.3 million (which the Wife alleges to be at an under value). The proceeds of sale of the former matrimonial home and other family properties were paid to the Wife. This was used by the Wife to purchase her present home in September 2012 for a consideration of HK$12,500,000. The purchase was completed on 2 January 2013.

These Proceedings

15. In about March 2013, the Husband ceased to make any further payments into the joint account. The Wife petitioned for divorce on 10 April 2013. Although the Husband was informed of the intention to take out these proceedings by both the Wife and her solicitors, and arrangements were made with the Husband for service, service was initially unsuccessful. The Husband was finally served on 23 April 2013.

16. The Husband filed his Form E on 18 June 2013 where he failed to provide the requisite information and documents. From then on, the Wife was put through a protracted and arduous process of discovery. The Husband also denied that he has ever had an extra-marital relationship with the 2nd Respondent. His relationship was only admitted a year after the commencement of these proceedings.

17. It is now known that the Husband has been having an affair with the 2nd Respondent at the latest by 2002 and that he has been giving her substantial amounts of money over the years and those funds have been used to purchase a number of properties:

(1) On 9 December 2002 and 8 June 2001, the Husband paid HK$207,000 and HK$122,800 respectively to the 2nd Respondent with funds out of his joint account with the Wife (the Joint Account). On 27 August 2003, the 2nd Respondent entered into an agreement for the purchase of a property in 49A B Garden (49A) for a consideration of HK$2,002,000. On 8 September 2003, the Husband paid a further sum of HK$133,000 to the 2nd Respondent from the Joint Account. On 9 October 2003, the Husband paid HK$200,000 to the 2nd Respondent. On the same day, the purchase of 49A was completed. The Husband changed his correspondence address to 49A and had some of his mail redirected from the former matrimonial home to this address (including the bank statements of the...

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