Cysl v Lyc

Court:Family Court (Hong Kong)
Judgement Number:FCMC8024/2003
Judgment Date:06 Sep 2005
FCMC008024/2003 CYSL v. LYC

FCMC 8024 of 2003

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES

NUMBER 8024 OF 2003

_________________

BETWEEN

  CYSL Petitioner
  and  
  LYC Respondent

_________________

Coram: Her Honour Judge Chu in Chambers

Date of Hearing: 14 & 15 July 2005

Petitioner’s Written Submissions: 23 July 2005

Respondent’s Written Submissions: 29 July 2005

Petitioner’s Final Written Submissions: 6 August 2005

Date of Handing Down of Judgment: 6 September 2005

_________________

J U D G M E N T

_________________

1. This is an application for ancillary relief by the Petitioner (“W”) against the Respondent (“H”).

BRIEF BACKGROUND

2. H and W were married on 18th September 1996.

3. Before the marriage, in 1995, H bought a property, which was later the matrimonial home (“Matrimonial Home”). After the marriage, in 1997, H transferred the Matrimonial Home into the joint names of the parties.

4. There are two children of the family, who are twin daughters born on 8th January 1998, and they are now about 7 1/2 years of age (“the Children”).

5. The parties separated on about 17th May 1999. W first presented a divorce petition on 17th May 2000 (FCMC 4332 / 2000) based on the parties’ separation for one year. As H did not give his consent, W’s petition was dismissed in June 2000. W presented the petition in the present proceedings on 10th July 2003, based on the parties’ separation for over two years. A Decree Nisi of divorce was granted to W on 5th December 2003.

PROPOSALS MADE BY H AND W

6. About 3 weeks before the commencement of the trial, on 23rd June 2005, W’s open proposals were, inter alia, as follows :

(i) H to pay to W HK$1.00 per annum, being nominal maintenance for W.
(ii) H to pay W periodical payments in the sum of HK$11,000 per month for the maintenance of the Children.
(iii) H to transfer within 2 months all H’s interest in the Matrimonial Home, subject to H’s arrangement for the discharge of the mortgage within the 2 months, and be responsible for the costs of redemption and transfer.
(iv) H to pay W’s costs of the suit, to be taxed under the Legal Aid regulations.

7. On 11th July 2005, H’s open proposals were, inter alia, as follows: -

(i) H to pay W HK$1.00 per annum, being nominal maintenance for W.
(ii) H to pay W HK$8,500 per month for the maintenance of the Children.
(iii) H to transfer all his interest in the Matrimonial Home to W, subject to mortgage, and upon W’s undertaking to pay all mortgage or instalment loan repayment, expenses and outgoings of the Matrimonial Home from date of transfer, and all costs of transfer be shared equally; or
(iv) Alternatively to (iii), the Matrimonial Home be sold in open market and all the net proceeds be paid to W, after repayment of the mortgage loan, and all necessary expenses and outgoings
(v) Each party to pay his / her own costs.

8. At the commencement of the trial on 14th July 2005, W’s proposals were : -

(i) W no longer requires the transfer of the Matrimonial Home by H into her sole name, but asked that H to continue to pay for the mortgage of the Matrimonial Home, and to allow W and the Children to reside there until the Children reach the age of 21 or upon W’s remarriage.
(ii) Upon the Children reaching the age of 21, and upon W’s remarriage, the Matrimonial Home be sold and the net sale proceeds be divided equally between H and W.
(iii) H to pay HK$11,000 per month for the maintenance of the Children
(iv) H to pay periodical payments of HK$1 per annum for the maintenance of W.
(v) H to pay W’s costs.

9. On the 2nd day of the trial, W changed her proposals again, and proposed as follows :

(i) H to pay W a sum of HK$1 per annum for her maintenance.
(ii) H to pay W a sum of HK$19,500 per month for the maintenance of the Children.
(iii) H to make a partial payment of HK$380,000 to the mortgage loan of the Matrimonial Home within 2 months, and then transfer all his interest in the Matrimonial Home subject to the remaining mortgage loan to W solely.
(iv) H to pay W’s costs.
(v) H to pay the cost of the transfer of the Matrimonial Home.

ISSUES

10. The main issues in this applications include the following : -

(i) whether W should work and her earning capacity.
(ii) W’s alleged personal loans from a friend and former colleague Mr. Tang.
(iii) H’s income and earning capacity
(iv) whether H has any interest, in 2 companies, later referred to as PF Ltd And BF Ltd in this Judgment, which H alleges are owned by his father.
(v) whether H has any interest in a company, later referred to as G Ltd in this Judgment, which H alleges is owned by his father

THE LAW

11. The matters which this court should consider are set out in s. 7 of the Matrimonial Proceedings and Property Ordinance (“MPPO”), which is as follows : -

“(1) It shall be the duty of the court in deciding whether to exercise its powers under section 4, 6 or 6A in relation to a party to the marriage and, if so, in what manner, to have regard to the conduct of the parties and all the circumstances of the case including the following matters, that is to say –

(a) the income, earning capacity, property and other financial resources which each of the parties to the marriage has or is likely to have in the foreseeable future;

(b) the financial needs, obligations and responsibilities which each of the parties to the marriage has or is likely to have in the foreseeable future;

(c) the standard of living enjoyed by the family before the breakdown of the marriage;

(d) the age of each party to the marriage and the duration of the marriage;

(e) any physical or mental disability of either of the parties to the marriage;

(f) the contributions made by each of the parties to the welfare of the family, including any contribution made by looking after the home or caring for the family;

(g) in the case of proceedings for divorce or nullity of marriage, the value to either of the parties to the marriage of any benefit (for example, a pension) which, by reason of the dissolution or annulment of the marriage, that party will lose the chance of acquiring.

(2) Without prejudice to subsection (3), it shall be the duty of the court in deciding whether to exercise its powers under section 5, 6 or 6A in relation to a child of the family and, if so, in what manner, to have regard to all the circumstances of the case including the following matters, that is to say –

(a) the financial needs of the child;

(b) the income, earning capacity (if any), property and other financial resources of the child;

(c) any physical or mental disability of the child;

(d) the standard of living enjoyed by the family before the breakdown of the marriage;

(e) the manner in which he was being and in which the parties to the marriage expected him to be educated;

and so to exercise those powers as to place the child, so far as it is practicable and, having regard to the considerations mentioned in relation to the parties to the marriage in paragraphs (a) and (b) of subsection (1), just to do so, in the financial position in which the child would have been if the marriage had not broken down and each of those parties had properly discharged his or her financial obligations and responsibilities towards him.”

S. 7 MATTERS

12. I now turn to consider the issues, the s. 7 matters, and the parties’ evidence.

13. For the avoidance of doubt, in so far as the matters set out in this Judgment differ from the evidence of H or W, this is because I have preferred the evidence of the other party and because I consider that the documents produced confirmed my finding of fact and further I have been able to observe the demeanour of the parties.

CONDUCT OF THE PARTIES

14. The divorce petition was based on the parties’ separation. There is no specific allegation of any “obvious and gross” conduct, or any conduct by either party, which I will need to consider.

INCOME, EARNING CAPACITY, PROPERTY AND OTHER FINANCIAL RESOURCES WHICH H AND W HAVE OR IS LIKELY TO HAVE IN THE FORESEEABLE FUTURE

Income / Earning capacity of W

15. Before the marriage, from about September 1996, W had been working as a flight attendant. She continued working as a flight attendant after marriage, until about April 1997. W was earning about HK$20,000 per month as a flight attendant. W said that after marriage, H had asked her to give up working to have a baby, and she did cease working in April 1997, at H’s request, when she discovered she was pregnant. After giving birth to the Children and until the parties separated in May 1999, W was a full time housewife and mother. In total, she stopped working for about 2 years.

16. In May 1999, W started working again, initially in a glass factory earning about HK$15,000 per month, and she worked there for about 4 months until...

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