B v B

CourtFamily Court (Hong Kong)
Judgment Date11 July 2000
Subject MatterMatrimonial Causes
Judgement NumberFCMC3105/1999
FCMC003105/1999 B v. B



B v. B

Family Law - r. 80 Matrimonial Causes Rules (Cap. 179) - transfer of proceedings to Court of first Instance - relevant matters to consider.

FCMC 3105/1999




NUMBER 3105 OF 1999


B Petitioner


B Respondent


Coram: Deputy Judge Jenkins in Chambers

Date of Hearing: 2 June 2000

Date of Ruling: 11 July 2000





1. I dismissed the Petitioner's application to have this matter transferred to the Court of First Instance. These are my reasons.

2. The application was made under r. 80 Matrimonial Causes Rules Cap 179A.

r. 80 (3) states:

The court may order the transfer to the Court of First Instance of any application for ancillary relief pending in the district court where the transfer appears to the court to be desirable.

r. 80 (5) states:

In considering whether an application should be transferred to the Court of First Instance the court shall have regard to all relevant considerations, including the nature and value of the property involved, the relief sought and the financial limits for the time being relating to the jurisdiction of the district court in other matters.

3. The parties were married in Hong Kong in 1978. They have two children, twins, who were born in 1983. In March 1999 the wife petitioned for divorce on the basis of the husband's admitted adultery. A decree nisi was pronounced on 22nd October 1999. By consent custody of the children was granted to the parties jointly with care and control to the wife. The wife's claim for financial relief remains unresolved and it is this aspect of the matter that the wife wishes transferred to the Court of First Instance.

4. Mr Erving who appeared for the wife argued three matters. He referred to the nature and value of the property involved in the ancillary application for financial relief. Secondly the husband is a prominent solicitor and thirdly costs awarded as a party and party basis in the District Court are only two thirds of those allowed in the High Court.

5. It seems that the total value of the assets involved is about HK$40,000,000.00, clearly a substantial amount, but also of significance is that the bulk of these assets is contained in a discretionary trust set up by the husband in 1996. The largest asset held by the trust is an investment account valued in December 1999 at US$4,660,412.00. The trust was established under the law of the Cook Islands and the beneficiaries are:

1) the Husband
2) the Wife
3) the Husband's children and remoter issue
4) the children's spouses and remoter issue
5) a relative of the Wife.

6. Mr Erving suggested that the distribution of the trust funds could well prove difficult and that complex questions of law might arise.

7. Mr Peaker who appeared for the husband contended that any proposed break up of the trust and distribution of its assets was not a complicating factor and that the total value of the assets at about HK$40,000,000.00 was not so high...

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