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C v C

Judgment Cited authorities 1 Cited in Precedent Map Related
Vincent
Judgment Date06 January 2000
Subject MatterMatrimonial Causes
Judgement NumberFCMC1991/1995
CourtFamily Court (Hong Kong)
FCMC001991/1995 C v. C

FCMC001991/1995

Headnote

C v. C

Family Law - ancillary relief - application for leave to apply for transfer of property order - s 25(2)(6) of Matrimonial Proceedings and Property Ordinance - test to be applied - meaning of "property".

FCDJ 1991/1995

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES

NUMBER 1991 OF 1995

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BETWEEN
C Petitioner
AND
C Respondent

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Coram: Deputy Judge Jenkins in Chambers

Date of Hearing: 8 November 1999

Date of Judgment: 6 January 2000

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JUDGMENT

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1. This is an application by the Petitioner (Wife) for leave under S 25(2)(b) Matrimonial Proceedings and Property Ordinance (Cap 192) to apply for a transfer of property order.

2. The background to the application is that the parties married on 17th November 1997. They have three children all daughters who are now aged 21, 18 and 17 respectively. The parties separated in October 1992 and a decree nisi based on two years separation with the Respondent's (Husband) consent was pronounced on 3rd August 1995. On the same date and by consent an order was made for $1 a year nominal maintenance to the wife and $1,800 per month for the three children. This sum has since been increased to $7,000 a month. In her petition the wife had also prayed for a lump sum order for herself and the children but had not sought any property adjustment order. The consent order made no reference to the lump sum application. On 11th March 1999 the wife filed an application for an increase in the maintenance payable under the consent order. That application has been adjourned sine die.

3. On 28th July 1999 the wife filed a notice of intention to proceed with her lump sum claim and a further notice for leave to apply for a property adjustment order. It is this latter application that is now before the court.

4. In her affidavit the wife explains that at the time of the decree nisi she only pursued her prayer for maintenance for the children as the husband was only earning $16,000 a month as a foreman for the Urban Services Department. She accepted that apart from the matrimonial home he had no significant assets. In any case she herself was then working in her mother's knitting factory. Therefore she did not proceed with her claim for a lump sum. As for the matrimonial home this was a village house in the New Territories worth around $150,000. If that had to be sold and the proceeds divided the resulting sum would hardly be enough even for a deposit for alternative accommodation.

5. The situation though has changed significantly since the making of the consent order. Until 1986 the matrimonial home was registered in the name of the husband's father. In 1986 he assigned the property to the husband by way of gift. In 1994 the husband assigned it to his mother by way of gift who in turn assigned it back to the husband by way of gift in December 1997. Then at midnight on 16th January 1999 the lot on which the property stands "reverted to the state for the use of the Government of the HKSAR" according to a remark on the relevant extract from the Land Registry. Notice of this resumption had been gazetted on 15th October 1998.

6. The land in question (together of course with other land) has been resumed by the government for the purposes of the West Rail project. The consequences of this resumption are that the Husband has been given two options by the government. In his affirmation of 26th July 1999 the husband explains that he had the option of either an ex gratia sum of $5,931,000.00 (option A) or the grant of a piece of land 65.03 sq. metres in area on which to build a three storey house (option B). If option B is chosen, the government also pay an ex gratia building allowance, the current rate of which is $898,000.00 and certain other smaller allowances including $3,800 a month for rent until the house is built. On 25th May 1999 the husband elected to accept option B although it seems that the election is not irrevocable and it is open to him to choose option A should he change his mind.

7. The Husband resists the Wife's application on a number of grounds. First he says that the consent summons of 3rd August 1995 was in full and final settlement of all his wife's claims for financial relief. The difficulty with that contention is that nowhere in the order is it stated that the order was in full and final settlement and I note in passing that no order was made dismissing the wife's claim to a lump sum although I am not dealing with that aspect now. I have no doubt that if it had been contended that the order of 3rd August 1995 had been intended as a clean break in full and final settlement then the order would have said so.

8. Secondly the husband says...

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