Your World of Legal Intelligence
 Hong Kong | 1-800-335-6202

Cyn v Lch

Judgment Cited authorities 4 Cited in Precedent Map Related
Vincent
Judgment Date26 July 2018
Neutral Citation[2018] HKFC 115
Year2018
Judgement NumberFCMC11251/2017
Subject MatterMatrimonial Causes
CourtFamily Court (Hong Kong)
FCMC11251/2017 CYN v. LCH

FCMC 11251 / 2017

[2018] HKFC 115

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES

NUMBER 11251 OF 2017

----------------------------

BETWEEN
CYN Petitioner
and
LCH Respondent

----------------------------

Coram: His Honour Judge I Wong in Chambers (Not open to Public)
Date of Hearing: 17 July 2018
Date of Judgment: 26 July 2018

__________________

Judgment
(Maintenance Pending Suit)

__________________

1. This is the petitioner wife’s application for maintenance pending suit in these divorce proceedings.

2. For convenience, I shall refer the petitioner wife as “P” and the respondent husband “R”.

Background

3. The parties were married in Hong Kong in May 2012. This is a no child marriage. P was a Mainlander and is now issued with a Hong Kong identity card. R is a local Chinese. During the marriage, the parties lived in their matrimonial home in Shenzhen which was purchased in their joint names. It appears not to be in dispute that during the relationship R was working in Hong Kong and staying with his mother and siblings in a public housing unit. He only returned to the matrimonial home during weekends and holidays. As for P, she worked as an estate agent in Shenzhen.

4. On 30 August 2017 P petitioned for divorce on the ground of R’s unreasonable behaviour. I was informed by Mr Yeung, who acts on behalf of P, that the parties have come to an agreement that the ground for divorce will be changed to one-year separation with the consent of R. As of now, the decree nisi has not been granted.

The Petitioner’s Application

5. At the beginning, P’s application for maintenance pending suit included a monthly sum of $10,000 as legal costs provision. Subsequently, she has been granted legal aid; so this limb of application is not required anymore. She is now seeking a monthly sum of $8,000, payable by R as from 19 December 2017, the date of her application.

The Petitioner’s Case

6. P is now 31 years old. As said, she used to work as an estate agent in Shenzhen. At the request of R, she ceased her job and became a housewife sometime in February 2013. Since then R gave her about $20,000 per month as her household and living expenses and the expenses for visiting Hong Kong. P’s case therefore is that during most of the time of the marriage, she was dependent upon R. Unfortunately, their relationship started to turn sour in 2014. This eventually culminated to the issuance of a notice of separation via her solicitors on R on 13 June 2017. Shortly after this on 19 June 2017, R and his mother stormed the former matrimonial home and expelled her from it. P is now staying at a rented premise in Shenzhen at the rental of RMB4,800.

The Respondent’s Case

7. R, now 41 years of age, offers an entirely different version. He denies P was dependent upon him during the marriage. In truth, he said, she was all along in gainful employment as an estate agent in Shenzhen. He even alleged that P is still working as such. As far as money matters are concerned, his only contribution was on the utilities charges and management fees of the matrimonial home. He also denies having expelled P from the matrimonial home in June 2017 as alleged.

8. As far as this application is concerned, R’s case, in brief, is that he does not have the ability to maintain P. He had been unemployed for nearly 9 months and is now earning a meagre income of $3,000. Added to this is the heavy financial burden from his extended family that falls squarely on him. Consequently, he has no extra capacity to support P.

The Legal Principles

9. Under section 3 of the Matrimonial Proceedings and Property Ordinance, Cap. 192 (“the MPPO”), 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 presentation of the petition or the making of the application and ending on the date of the determination of the suit, as the court thinks reasonable.

10. The Court of Appeal in HJFG v. KCY [2012] 1 HKLRD 95 summarised the established principles,

“33. Jurisdiction to award maintenance pending suit to a spouse is statutory, being governed by the provisions of s.3 of the Matrimonial Proceedings and Property Ordinance, Cap. 192. By that section the court is given a discretion to make an order requiring either party to the marriage to make to the other such periodical payments for his or her ‘maintenance’ as the court thinks ‘reasonable’, subject to the condition that the duration of any such order is limited to the period of what may broadly be called the divorce litigation.

34. By definition, therefore, maintenance pending suit is restricted to payments which constitute ‘maintenance’, which are reasonable in the circumstances and which will endure for no longer than it takes to determine the divorce litigation. ‘Maintenance’ is a broad concept. I do not seek to define its exact meaning but it seems to me that it must be restricted to those payments necessary to meet the recurring costs of living at whatever standard of living is appropriate. That being the case, no matter how great the wealth of the parties and how unevenly distributed that wealth may be at the time an application for interim maintenance is made, the court has no jurisdiction to make orders which for all practical purposes result in a form of pre-trial capital re-balancing. In the present case, the judge recognised the long-established approach of looking to the “immediate and reasonable needs” of the wife and son.

35. As to the amount of maintenance pending suit that may be paid, the Ordinance provides only that it must be ‘reasonable’, that is, having regard to the circumstances of the case, that it must be fair.

36. An important factor in determining fairness is a consideration of the marital standard of living. In this regard, each case must be considered according to its own circumstances. It is not simply to be assumed that great wealth equates to great extravagance. Some married couples who enjoy great wealth spend with comparative modesty and with a discipline born of discretion, others enjoy consumption on a grand scale.

37. The principles that have emerged over time to guide judges in matters of interim maintenance have been fashioned in the main to ensure fairness. This is well illustrated in the judgment of Nicholas Mostyn QC, sitting then as a deputy High Court judge, in TL v ML and Others (Ancillary Relief: Claim against Assets of Extended Family) [2006] 1 FLR 1263, at 1289, in which, having looked at earlier authorities, he derived the following principles that speak specifically to fairness or are based on the need to ensure it. For present purposes, it is sufficient to cite the relevant principles without citing the judge’s reference to the source of those principles:

i. The sole criterion to be applied in determining the application is ‘reasonableness’, which is synonymous with ‘fairness’.

ii. A very important factor in determining fairness is the marital standard of living. This is not to say that the exercise is merely to replicate that standard.

iii. In every maintenance pending suit application there should be a specific maintenance pending suit budget which excludes capital or long-term expenditure, more aptly to be considered on a final hearing. That budget should be examined critically in every case to exclude forensic exaggeration.

iv. Where the affidavit or form E disclosure by the payer is obviously deficient, the court should not hesitate to make robust assumptions about his ability to pay. The court is not confined to the mere say-so of the payer as to the extent of his income or resources. In such a situation, the court should err in favour of the payee.

38. Finally, it is to be noted that in applications for interim maintenance, when the amount to be paid is for a limited period only and not all of the evidence is necessarily before the court, it is not appropriate, nor indeed in most cases possible, for the court to conduct a detailed investigation into the finances of the parties. While, in order to determine what is or is not reasonable, some analysis is always required, that analysis can be conducted on a ‘broad-brush’ basis.”

11. Further, in connection with the point made by the Court of Appeal in [37iv]of HJFG v. KCY, supra, the learned authors of Rayden and Jackson on Relationship Breakdown, Finances and Children (Issue 7 March 2018) commented as follows,

[11.79] In practice, as oral evidence is rarely given, it will be unusual for the court on an application for maintenance pending suit to be in a position to make findings of fact on issues in dispute sufficient, for example, to deal with conduct or allegations of non-disclosure. However, if it is demonstrated that the paying party has not performed his duty to make full and frank disclosure of his financial resources, then the court can take a broad and robust view of his means, and it does not have to accept and proceed on the basis of the assertions of the paying party as to his...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT