FCMC 5810 / 2015
IN THE DISTRICT COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
NUMBER 5810 OF 2015
|Coram: Her Honour Judge Sharon D. Melloy in Chambers (Not open to public)
|Date of Hearing: 26 February 2016
|Date of receipt of husband’s credit card statements: 3 March 2016
|Date of letter from the wife’s lawyers in response to the receipt of the credit card statements: 10 March 2016
|Date of Judgment: 28 April 2016
J U D G M E N T
(Maintenance pending suit)
1. This is an application by a Petitioner wife for maintenance pending suit pursuant to section 3 of the Matrimonial Proceedings and Property Ordinance Cap 192 (MPPO,
2. In addition to the main issue concerning the level of maintenance to be paid on an interim basis there are also a number of subsidiary matters to be determined in this case. These include the credibility of the husband’s assertions with respect to his credit card expenditure, his actual tax liability and the reason for him taking out a number of substantial bank loans post separation. In addition there are other related matters to be determined, which are not really relevant to a maintenance pending suit application. These include the weight to be attached to an agreement entered into by the parties prior to the wife returning to the States, the earning capacity of the wife, her health condition and whether or not the A Trust should be included in part or in whole in the “matrimonial pot”. There are also likely to be related arguments with respect to possible pre marital assets and whether or not the wife’s son is a “child of the family”.
3. The parties married on the XX August 2005. It was the second marriage for both of them. The husband has two children by his first marriage – a girl and a boy and the wife also has one son, who is currently attending university in the States. The parties are both in their mid 50’s and they relocated to Hong Kong in 2012 when the husband was offered an academic position in the territory. The wife also works in academia, but has always held less prestigious posts and has been correspondingly paid less.
4. In February 2014 the marriage broke down amidst accusations by the wife that the husband had formed an extra marital relationship with a third party – something that he still strenuously denies. In any event the wife moved out of the former matrimonial home and she decided to return to the States, which is where the parties had been living prior to their relocation to Hong Kong. However prior to her leaving the parties entered into an agreement, dated the 27 March 2014, which was signed before a Commissioner of Oaths in which the husband agreed to pay the wife maintenance of US$12,000 per month after tax during the period of separation. From the date of the dissolution of the marriage he further agreed to increase this sum to US$15,000 per month and to pay this amount until his retirement at the age of 65. There was also a further agreement namely that the wife would receive 50% of the husband’s retirement funds. Following the signing of this document the wife returned to live in the States.
5. The husband continued to pay the US$12,000 per month until August 2015 when he unilaterally reduced this sum to US$6,000 per month. In his solicitors letter dated the 4 September 2015 he said that the reason for this was as follows:
As pointed out in the Form E, since your client has been living in an extravagance style and indulging in high standard of living for the past years, our client raised substantial loans to support this extravagance lifestyle living. As a result, our client is liable to repay various loans as stated in clause 2…3 of the said Form E. Hence, our client has to reduce the monthly maintenance to your client in the sum of US$6,000 with effect from 1/9/2015 due to the financial difficulty encountered by our client.
6. In addition the husband issued proceedings in the States in order to prevent the wife from disposing of certain pieces of artwork. The wife maintains that this was wholly unnecessary, that the items in question were not worth very much in any event and that the husband had over reacted. She says that he should simply have asked her for an undertaking and that she would have been happy to oblige.
7. In any event the point to note is that the parties are engaged in acrimonious and costly proceedings which will only serve to deplete the party’s limited assets further, unless a more sensible approach is adopted going forward.
Maintenance pending suit
8. Turning next to the law - the law is generally well known and not in dispute. Section 3 MPPO Cap192 states that the only governing principle is that the court shall make such order as it considers reasonable in all of the circumstances of the case. Consequently applications such as these are approached on a broad-brush basis. A detailed examination of the parties’ means may be examined at a later date at a full ancillary relief hearing if there is no agreement in the meantime, when there is then every opportunity to achieve fairness by means of set off. In other words, if there is any overpayment or underpayment that can normally be rectified at a final ancillary relief hearing.
9. To quote Rayden
what really matters is the immediate and reasonable requirements of the wife balanced against the ability of the husband to pay for them, assessed using a broad-brush approach. (See paragraphs 16.17 of Rayden, 18th edition).
In practice, as oral evidence is rarely given, it will be unusual for the court on an application for maintenance pending suit to be in a position to make findings of fact on issues in dispute sufficient, for example, to deal with conduct or allegations of non disclosure. However, if it is demonstrated that the paying party has not performed his duty to make full and frank disclosure of his financial resources, then the court can take a broad and robust view of his means, and it does not have to accept and proceed on the basis of the assertions of the paying party as to his means and an inability to pay. The court can look at the reality of the situation …… “(Ref paragraphs 16.18 of Rayden, 18th edition).
10. Both counsel also referred me to the guiding principles set out in the Court of Appeal decision HJFG v KCY  1 HKLRD 95. To paraphrase, this states inter alia that the court in dealing with a maintenance pending suit application:
(a) applies the sole criterion of “reasonableness” which is synonymous with “fairness”;
(b) has an unfettered discretion to award a reasonable sum;
(c) should be guided by the standard enjoyed by the parties during the marriage;
(d) should adopt the standard of this family and not any other families. What appears to be reasonable for an ultra-rich family, is perhaps very generous or extravagant for an ordinary family;
(e) should consider the actual needs of the parties;
(f) is not engaged upon findings of facts and will adopt a broad brush rather than a fine sabre;
(g) is empowered to draw adverse inferences against the party who has failed to make full and frank disclosure and is not bound by the assertions of the parties;
(h) should still examine the monthly budget;
(i) bears in mind that adjustment can be made at the final ancillary relief.
(j) Where the affidavit or Form E disclosure by the payer is obviously deficient, the court should not hesitate to make robust assumptions about his ability to pay. The court is not confined to the mere say-so of the payer as to the extent of his income or resources. In...