Cwyj v Ltye

CourtFamily Court (Hong Kong)
Judgment Date28 June 2019
Neutral Citation[2019] HKFC 164
Judgement NumberFCMC1135/2016
Subject MatterMatrimonial Causes
FCMC1135/2016 CWYJ v. LTYE

FCMC 1135 of 2016

[2019] HKFC 164




NUMBER 1135 of 2016


CWYJ Petitioner


LTYE Respondent


Coram: Deputy District Judge M Lam in Chambers
Date of Hearing: 22-23, 28 May 2019
Date of Handing Down Decision : 28 June 2019


(Variation of Maintenance)


The application

1. By two notices of application dated 4 April 2018 and 2 May 2018 respectively, the respondent seeks to vary the Consent Order granted by Deputy District Judge D Cheung on 27 January 2017. The said order was amended on 9 July 2018 and re-amended on 30 July 2018 (“Consent Order”).

2. For ease of reference, I will refer to the petitioner and the respondent as wife and husband.

The Consent Order

3. The parties were married in October 2007. Two children were born of the marriage. The first child was born in 2008 and the second one in 2010. The wife petitioned for divorce in January 2016. The decree absolute was granted on 17 March 2017.

4. During a mediation meeting, the parties reached a settlement onthe issue of custody as well as financial arrangement with the assistance of their respective solicitors. The settlement was reduced into the “Minutes of Consent Order” dated 26 July 2016 (the “Minutes”) which was subsequently made an order of the court, the Consent Order.

5. The Consent Order contained a number of undertakings given by the husband in addition to the terms of the order. The terms and undertakings which are relevant to the present application are that the parties were to share joint custody of the children with care and control to the wife, that the husband was to procure and secure the former matrimonial home for the sole use and occupation of the wife and the children rent free, that he was to pay or procure payments to be made for almost all of the expenses relating to the children and the former matrimonial home. As to the payments for the wife herself, he was required, under his undertakings as well as the terms of the Consent Order, to pay, : -

(a) periodical payment of HKD35,000 per month until her death or remarriage, whichever is earlier (“PP Payment”). The first payment to be made on 1 August 2016; and

(b) a sum of HKD4 million (“Lump Sum”)

(by 8 installments, HKD500,000 for each installment for every six months. The first installment to be made on 1 January 2017 and the last one on 1 July 2020). (“LS Payment”)

(Collectively as “Maintenance Terms”)

6. Notwithstanding that the LS Payment was worded as repayment of loan to the wife in the Consent Order, the parties take no issue on the nature of such payment and they regard it as lump sum payment having the meaning of section 4 of the Matrimonial Proceedings and Property Ordinance, Cap. 192 (“MPPO”).

7. So far, the husband has only made two payments of HKD10,000 each in August and September 2016, a total of HKD20,000. The wife therefore took out a judgment summons on 17 August 2017. The husband thereafter made the present application.

8. It is from the Maintenance Terms the husband now seeks to vary to the extent that : -

(a) the PP Payment be varied to monthly payment of HKD1, commencing from the date of decree absolute; and

(b) the LS Payment be varied from semi-annual installment of HKD500,000 to monthly installment of HKD5,000, commencing from the date of decree absolute.

The grounds of application

9. The husband confirms unequivocally in Court that: -

(a) he does not challenge the validity of the Minutes, the Consent Order or the liability to pay the Lump Sum.

(b) He only seeks to vary the amount and frequency of the installment of the Lump Sum but not the Lump Sum itself.

(c) his only ground of application is a change in circumstances of both parties after the divorce.

10. The husband says that after the divorce, there has been material change in circumstances on both parties. The wife has changed from a full-time housewife to a business woman, having her own business and a steady boyfriend. She has increase in cash and stock investment, enjoying a high standard of lifestyle. On his part, even though his assets and earnings are on the increase and the liabilities are on the decline, he actually has no means to pay for the wife’s maintenance. The wife’s issuing of a statutory demand (“Statutory Demand”) against him for the outstanding maintenance payment in August 2018 has an adverse impact on him.

11. The wife resists the application. She contends that the variation as sought will take the husband 800 months (66.6 years) to repay the Lump Sum and the monthly periodical payment of HKD1 is effectively no payment at all. She argues that the application is in effect a wholesale abandonment of the Consent Order which should not be allowed. She denies any change in circumstances which justifies a variation of the Consent Order as sought.

The law

12. The power of the Court to vary a periodical payment order and the repayment schedule of a lump sum payment order is provided for by section 11(1) of MPPO : -

“(1) Where the court has made an order to which this section applies, then, subject to the provisions of this section, the court shall have power to vary or discharge the order or to suspend any provision thereof temporarily and to revive the operation of any provision so suspended.”

13. The power is to be exercised in accordance with section 11(7) of MPPO: -

(7) In exercising the powers conferred by this section the court shall have regard to all the circumstances of the case, including any change in any of the matters to which the court was required to have regard when making the order to which the application relates and, where the party against whom that order was made has died, the changed circumstances resulting from his or her death.”

14. The legal principles governing variation of a consent order can be summarized as follows: -

(a) The statutory power to vary is wide and the court is to consider all the circumstances of the case.

(b) while the court is not required to proceed from the starting point of the original order but look at the matter afresh, the basis and intended effect of the original order are relevant factors to which the Court should pay regard and there should not be a radical departure from the approach taken by the parties themselves when they had entered into an agreement embodied in a consent order. See AEM v VFM [2008] 3 HKLRD 36

(c) the existence of a prior agreement was an important aspect which should be looked at having regard to the conduct of the two parties, both leading up to the agreement and subsequent thereto, and the Court should bear in mind that formal agreements, properly and fairly arrived at with competent legal advice, should be given effect to unless good and substantial grounds were...

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