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C v H

Judgment Cited authorities 2 Cited in Precedent Map Related
Vincent
Judgment Date30 December 2008
Year2008
Judgement NumberFCMC315/2008
Subject MatterMatrimonial Causes
CourtFamily Court (Hong Kong)
FCMC000315/2008 C v. H

FCMC No. 315/2008

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES NO. 315 OF 2008

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BETWEEN
C Petitioner
And
H Respondent

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Coram: Deputy District Judge K.W. Wong in Chambers (not open to public)

Date of Hearing: 24th December 2008

Date of Handing Down Written Decision: 30th December 2008

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DECISION

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1. This is the application of the Respondent wife (“Wife”) against the Petitioner husband (“Husband”) by summons dated 26th August 2008 for an order that:

i) the Husband do pay her maintenance pending suit (“MPS”) at the rate of HK$25,536 per month forthwith and thereafter on the first day of each and every month until further order; and

ii) the Husband do pay the Wife a sum of $29,466 being the outstanding balance of maintenance for the children for the period from June to August 2008.

The Grounds of the Parties

2. The parties’ cases are simple. The basis of the Wife’s claim is this. According to the Husband’s Form E affirmed on 6th March 2008, his reported expenses for the household and the three children of the family were respectively $20,186 and $5,350. The aggregate of these two items is $25,536. These expenses include repayment of the monthly mortgage instalment of the matrimonial home ($11,914) and the salary of the domestic helper ($3,800). Although the parties separated some two years ago, the Husband lived with the Wife and the children under the same roof. He continued to pay the family expenses and thus spent $25,536 every month on the family. He only moved out on or about 1st June 2008. Accordingly, the Wife considers the Husband should continue to pay her this sum of $25,536 as MPS. Since the Husband only pays the mortgage instalments and the helper’s salary as from June 2008 and stopped everything else, the shortfall, she claims, is $9,822 ($25,536 - $11914 - $3,800) per month. She considers that the Husband is liable to repay her the shortfall for June, July and August 2008 totalling $29,466 (3 x $9,822).

3. It is not in dispute that the Husband terminated the employment of the domestic helper in September 2008. As a result, the Wife has to engage another one to assist her look after the three children of the family, the custody of which has been granted by consent to the Wife pursuant to my order dated 26th June 2008.

4. The Husband’s defence is that there has been an increase in his expenses since his moving out of the matrimonial home. Two of the major additional expenses are the monthly rental of $12,000 for the flat he is now residing and his payment to his parents of $4,000 per month. The latter has been increased from $1,000 as previously stated in his Form E.

5. He can only afford $15,000 per month and therefore offers to pay this amount as the three children’s MPS. The Wife disagrees. She challenges the reasonableness of the two major additional expenses.

The Law

6. The law on MPS is rather settled. Before today’s hearing, both Miss Hui, solicitor representing the Husband and Mr. Yip King Sum of counsel for the Wife have submitted their respective written skeleton. There does not appear to me to be any dispute as to the legal principles applicable to the granting of MPS in their submission. It is useful for the purpose of the present proceedings to repeat the same below.

7. The starting point is section 3 of the Matrimonial Proceedings And Property Ordinance, Cap 192 (“MPPO”). It stipulates that:

“On a –

(a) petition or joint application for divorce; or

(b) petition for nullity of marriage or judicial separation,

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.”

8. Rule 78 of the Matrimonial Causes Rules of the Matrimonial Causes Ordinance, Cap 179 stipulates that:

“Upon an application for ancillary relief, the court may make an interim order upon such terms as it thinks just.”

9. So the guiding principle is “reasonableness” of such periodical payment in the circumstances of the particular case. The learned H.H. Judge Chan has in H v H (unreported) FCMC 1969 of 2007, 3rd October 2007 summarized the principles applicable to MPS application. In short, these principles are as follows:

i) the statutory guiding principle for MPS is that the court shall make such maintenance as it thinks reasonable in the circumstances: see section 3 of MPPO;

ii) the court has an unfettered discretion in making the order Waller v Waller [1956] 300, [1956] 2 ALL ER 234,236, CA and Griffith v Griffith [1957] 1 ALL ER 494, 495;

iii) a broad-brush approach instead of a detailed investigation of the financial position by oral evidence should be adopted. It is because such maintenance is intended to operate for a relatively short period of time pending the final disposal of the ancillary relief application: see Miller v Miller [1985] 1 HKC 595 per Power J (as he then was). At this stage the court has no time to be perfect: Wong Wai Chi Susanna v Kim Miu Sup Mark (unreported) CACV 203/98 10th February 1999 as per Liu JA; and

iv) The sole criteria in making the award were reasonableness and needs of the parties as well as the ability of the spouse to pay. Long term view or potential earning capacities or future capital prospect of parties not considered: see Miller v Miller (supra) and LAML v TCCY [2004] HKCU 1056 as per Hon Cheung JA at paragraph 13.

10. Mr. Yip, counsel for the Wife has referred me to the Court of Appeal decision of CYTS v LCK [2005] 1 HKC 376 at 378G to 379B. No doubt the principles stated in that case bind this Court. In fact the basic principles referred to in CYTS v LCK are no different from what have been summarized in H v H and have been stated in the preceding paragraphs. Further, when considering the reasonableness of the MPS, CYTS v LCK has this to say in paragraph 8 in 378I to 379A, as per Woo V-P:

“In matters relating to financial provisions after the breakdown of the marriage, the court is fully entitled to take into account the standard of living of the parties prior to the breakdown. Such standard of living is a ready yardstick for the consideration of the financial needs of the parties as well as their incomes and earning capacities after the breakdown, barring credible and acceptable evidence of circumstances that have altered their position after the breakdown.”

11. I shall, whenever relevant, apply the above principles to the facts of the present case.

12. In the circumstances of the present case, I consider that the crucial issues are the reasonable need of the Wife as well as the children and the ability of the Husband to pay. Such MPS be, as far as possible, fixed against the standard of living of the parties before the breakdown.

Brief Background

13. The parties were married on 24th November 1989. There are three children born of this union. They are now respectively aged 13, 9 and 6 and are all daughters. The parties have lived under different households although under the same roof since 20th November 2006 as stated in the Amended Petition. The Husband’s divorce petition was based on the facts of one year separation with consent. So far no decree nisi has been made. The marriage lasts for about 18 years before its split up.

14. Custody of the children was granted to the Wife with reasonable access to the Husband on 26th June 2008 by consent. The Husband later complained having difficulty in his access. As a result this Court defined his access to the children on 10th October 2008 and directed a social investigation report on this issue be prepared.

15. The Husband is an I.T. Director of a company in Hong Kong. In his Form E filed this March, he deposed to his salary being $41,000 per month. He confirms his earning now being $43,000 per month.

16. The Wife is an executive assistant earning $17,935 per month. According to her Form E (page 118 of bundle), she receives a monthly rental of $335.25 from a property called Smiling Plaza. For the purpose of the present proceedings her monthly income is pitched at $18,300.

The Wife’s Reasonable Need

17. It is perhaps useful to summarize the respective monthly expenses of the parties as stated in their respective Form E here:

Heads of Expenses Wife’s Expenses Husband’s Expenses
i) General Household Expenses $2,140 $20,186(Including mortgage repayment and helper’s salary totalling $15,714)
ii) Personal Expenses 8,125 $9,426
iii) Children Expenses $5,860 $5,350
Total: $16,125 $34,960

18. It is noted that the parties’ Form Es were filed before the Husband left the matrimonial home when needs for additional living place does not arise. In relation to the Wife’s need I have the...

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