C v F

Court:Family Court (Hong Kong)
Judgement Number:FCMC1701/2000
Judgment Date:20 Sep 2004
FCMC001701/2000 C v. F

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES

SUIT NO. 1701 OF 2000

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BETWEEN

  C Petitioner
  and  
  F Respondent

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Coram: H.H. Judge Bruno Chan in Chambers

Date of Hearing: 1st September 2004

Date of Judgment: 20th September 2004

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J U D G M E N T

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1. This is the Respondent Wife’s application for maintenance pending suit against the Petitioner Husband in their divorce proceedings. He is a 58 years old company director, while she is a 52 years old housewife.

Background

2. This is a typical “rags to riches” story of a couple from humble background who married young some 37 years ago when they went through a form of marriage in 1967 which was subsequently formalized by registration at the Marriage Registry in 1994.

3. The Husband started out as a lowly printing worker earning a meagre sum of $350 per month and worked his way up to eventually having his own small printing business with some partners in the late 60s, while the Wife stayed home to raise their 4 children, 2 sons and 2 daughters who are now adults.

4. In the mid-70s the Husband broke up with his partners and formed his own printing company known as T Printing Co. Ltd, in which he also made the Wife a director, and with the purchase of a industrial unit for his company, his business started to grow and the parties’ financial position soon improved.

5. In the early 80s the Husband obtained a substantial printing contract from Coca-Cola and his business had since flourished. Soon the parties moved into a 3,300 sq. ft. flat in Estoril Court at mid-level Hong Kong which was purchased under the name of T Printing Co. Ltd, employed 2 domestic servants and a driver for the family, and sent their 2 sons to study in the U.S.

6. In the early 90s the Husband moved his business production into China and built his own factory on purchased lands, employing over 1000 workers in his factory run by his siblings, while the 2 elder sons work for the business in Hong Kong which has expanded to include several BVI holding companies and subsidiaries. With the expansion of business brought in more wealth, the parties were able to enjoy a very comfortable lifestyle and high standard of living, including large sums of spending money per month for the Wife and the family, membership of the Hong Kong Jockey Club, the use of several luxurious family cars and holidays in Europe.

7. In 1997 the Wife discovered that the Husband was having an affair with a much younger woman, and after a confrontation between the parties, the Husband moved out of the matrimonial home at Estoril Court in October 1997 to cohabit with his said girlfriend. He had however continued to provide substantial maintenance for the Wife and her household, including as much as $130,000 per month for her use, settling her 5 credit card bills of up to $100,000 per month, paying for her household utility bills and her chauffeur, and a further sum of $50,000 per month through T Printing Co. Ltd for her director fee / salary, bringing his total financial provisions for the Wife to between $250,000 and $300,000 per month on average, not counting the extra spending monies given to her during festive seasons such as Christmas and Chinese New Year.

8. On 25th February 2000 the Husband issued a petition for divorce in these proceedings based on the parties’ separation for at least 2 years since October 1997. On 21st June 2000 the Wife issued a notice of application for ancillary relief and required the Husband to file his affidavit of means. She also indicated in her Form 4 that she intended to defend the petition, as a result the Husband had agreed not to proceed with his petition, and no further steps were taken by either party in the proceedings for the next 3 years.

9. By November 2003 the Wife appeared to have change her mind about the divorce and informed the Husband that she would no longer defend his petition. Accordingly a fresh Form 4 was filled on her behalf indicating that she only wished to apply for ancillary relief including maintenance pending suit in the proceedings, and requested the Husband to make financial discloses in particularly those about his companies.

10. Shortly thereafter in February 2004 the Husband cancelled the Wife’s credit cards, stopped his company’s payment of her director fee / salary, and has since reduced her monthly maintenance to $90,000, although he has continued to pay for her chauffeur and household utility bills as well as the provision of family cars for her use. His explanations for reducing his financial provisions for the Wife were that his business has been declining since the 1997 Far East economic crisis, with a marked decrease in the turnover and profit in 2003, resulting in him no longer able to continue with the level of maintenance for the Wife as before, which he claims to be excessive and unreasonable in any event, as her outrageous spending was merely to punish him for his affair.

11. Not surprisingly, the Husband’s action was met with strong suspicion by the Wife that he was putting financial pressure on her due to her request for financial disclosure of his group of companies, and hence she immediately sought and obtained an order for the Husband to file his affidavit of means, which he subsequently did on 24th March 2004, and to launch an application for maintenance pending suit, which is now before me, for an order at more or less the same level of maintenance as before at $250,000 per month including her director fee from T Printing Co. Ltd, pending the substantive hearing of ancillary relief which will probably come within the next 6 months with the decree nisi of divorce having just been pronounced on the Husband’s petition. As is common in these applications, no oral evidence was given and Counsel for both parties argued their case based entirely on the affidavits before the Court, where there were 2 from each side, a standard Financial Statement (Form E) and a supplemental narrative one.

The Law

12. This application is of course brought under s. 3 of Matrimonial Proceedings and Property Ordinance which provides that “On a petition or joint application for divorce …… the Court may order either party to the marriage to make to the other such periodical payments for his or her maintenance and for such term, being a term beginning not earlier than the date of the presentation of the petition or making of the application and ending on the date of the determination of the suit, as the Court thinks reasonable”. This being the only statutory guidance as to the award of maintenance pending suit, means that the Court has a discretion in the matter, and subject to the result being “reasonable”, the discretion is not fettered in any way. (See Waller v Waller [1956] P 300, [1956] 2 All ER 234, 236, CA, and Griffith v Griffith [1957] 1 All ER 494, 495).

13. Furthermore, as it is intended that the award will operate for a relatively short period, several months as is anticipated in this case, it would not be appropriate for the Court to make a detailed investigation of the financial position of the parties when considering whether to grant maintenance pending suit, as was held by Power J, as he then was, in Miller v Miller [1985] 1 HKC P 595 when he said that the sole criteria in making an award were reasonableness and the needs of the parties, and that the Court should not take a long term view nor considering the potential earning capacity and future capital prospect of the parties. This approach was confirmed in the later case of Wong Wai Chi, Susanna v Kim Miu Sup, Mark (LACV 263 / 98) when Liu, JA said this in his judgment : -

“It is trite law that in an application for interim maintenance, the Family Judge is not called upon to make any thorough investigation of the income and financial capabilities of the parties. At that stage, there would simply be no time to be perfect. The Family Judge would have to guide himself by s. 3, having regard to the reasonable requirements of the wife and the ability of the husband to pay”.

14. Although the sole statutory guideline in considering maintenance pending suit is that the award shall be “reasonable”, the Court will nevertheless bear in mind all the factors drawn to its attention relating to the marriage and the parties to it, and perhaps the 2 most outstanding matters in every case, as in this one, are the standard of living of the parties, and the ability of the husband to pay.

The Evidence

15. There is no question that the standard of living enjoyed by the parties has been quite high and comfortable, in particularly since the 1990s. According to the Husband, in addition to paying the Wife more than $300,000 per month for her maintenance for the past 6 years since their separation in 1997, which he has estimated to be more than $30 million in total, he has also spent $5 million renovating her home, purchasing her new furniture and buying her 3 luxurious cars, including a Ferrari at $2 million in 1999 and a Mercedes S500 at $1.5 million in 2000 for her sole use, while he himself also has the use and enjoyment of 2 other Mercedes Benz purchased by his company.

16. After leaving the former matrimonial home in October 1997, the Husband has since been cohabiting with his girlfriend presumably at first at a flat at Hillsborough Court in Old Peak Road, Hong Kong which he purchased in 1998 for more than $13 million of which he paid $5.2 million for the down payment. One year later in 1999 he purchased his present home, a 4,000 sq. ft. house at La Palais, No. 8 Pak Pai Shan Road, Hong Kong by means of a holding company in joint names with his girlfriend for $45 million, of which $13.5 million was paid for the down payment.

17. According to his Form E, the Husband has...

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