Chan Chuck Wai v Chan Chan Yin Kwan Alice

Judgment Date27 February 1981
Subject MatterMatrimonial Causes
Judgement NumberFCMC245/1979
CourtFamily Court (Hong Kong)





ACTION NO. 245 OF 1979




Coram: Judge Jones

Date of Judgment: 27th February 1981




1. This is an appeal from a decision of Mr. Registrar Ryan made on the 16th January 1981 in respect of an application for ancillary relief. There is also a cross appeal by the respondent.

2. The parties were married on the 15th March 1972 when the wife was aged 21 and the husband 22.

3. There are two children of the family, a sun who will be 9 next month and a daughter aged 5.

4. The parties separated on the 14th November 1978.

5. The wife was granted a decree nisi to dissolve the marriage on the 19th April 1980 on the grounds of irretrievable breakdown based upon the fact of behaviour. The petition was undefended. The decree was made absolute on the 9th June 1980. An order for custody of the daughter was made in favour of the wife on the 9th June 1980. Although there is no court order the husband has de facto custody of the son.

6. The following orders were made by the Registrar:-

1. The husband to pay the wife periodical payments of $1.00 per annum.
2. The husband to pay the wife a lump sum of $100,000.
3. The husband to pay the benefit of the daughter a lump sum of $75,000.
4. The husband to pay into court the sum of $114,900 representing the capitalisation of periodical payments of $600 per month for the daughter from the 1st February 1981 to the 16th January 1997.
5. That the husband's interest in the balance of the estate of his grandfather to be held as to nine-sixteenths for the husband, four-sixteenths for the daughter. The interest of the wife and daughter is secured upon a property situate at 2K Boundary Street.

7. This is clearly a case where the husband has neither the ability nor the intention to discharge his obligations to maintain his wife or daughter by way of an order for periodical payments unless secured. However, the husband has substantial capital assets arising from his inheritance of a one sixth share in the estate of his grandfather who died in 1976. The son of the parties who is also a beneficiary under the grandfather's will has been well provided for financially.

8. The Registrar made his awards based upon the sum of $405,656.00, to which the husband is entitled under the estate. It is not in dispute that the husband is a gambler, and has squandered large sums on this pursuit. On his own evidence he appears to have frittered away at least $80,000, but a more realistic figure would be $180,000. Miss Leong for the wife contended that the basis for assessment was wrong for account should have been taken of the assets received and squandered by the husband. Mr. Wong for the husband submitted that the figure of $405,656.00 was correct.

9. It is clear that in calculating the lump sum regard must be had to the net assets of the husband not the gross assets. See Dennis v. Dennis(1). Nevertheless when the husband has behaved irresponsibly by dissipating the assets that is a matter to be taken into account by the Court. In Martin v. Martin(2) Cairns L.J. at page 629 said "Such conduct must be taken into account because a spouse cannot be allowed to fritter away the assets by extravagant living or reckless speculation and then to claim as great a share of what is left as he would have been entitled to, if he had behaved reasonably."

10. Miss Leong also submitted that the notional reduction from one third to one quarter because the wife made no contribution towards the capital was incorrect.

11. Wachtel v. Wachtel(3) is authority for using as a starting point the one third rule or ratio to capital assets in assessing a lump sum payment.

12. Section 7(1) of the Matrimonial Proceedings and Property Ordinance sets out the matter to which the court is to have regard in deciding what order to make. Section 7 is the equivalent of Section 25 of the Matrimonial Causes Act 1973.

Section 7(1) provides:
"It shall be the duty of the court in deciding whether to exercise its powers under section 4 or 6 in relation to a party to

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