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H v H

Judgment Cited authorities 3 Cited in Precedent Map Related
Vincent
Judgment Date01 February 2002
Subject MatterMatrimonial Causes
Judgement NumberFCMC7173/2000
CourtFamily Court (Hong Kong)
FCMC007173/2000 H v. H

FCMC007173/2000

IN THE DISTRICT COURT OF

THE HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES

F.C.M.C. No 7173 of 2000

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BETWEEN
H Petitioner
AND
H Respondent

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Coram: HH Judge Saunders

Date of hearing: 22, 23 & 26 January 2002

Date of Judgement: 1 February 2002

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Judgement

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1. I have before me two applications. The first is an application by the Respondent (wife) for maintenance pending suit pursuant to s 3 Matrimonial Property & Proceedings Ordinance Cap 192 (MPPO). This application is in two parts, first an application for maintenance pending suit in the traditional sense, and second for the provision of a sum to cover future legal costs arising from the litigation. The second application seeks an order pursuant to R 80 Matrimonial Causes Rules (MCO) to transfer the proceedings to the High Court.

Chronology:

2. In 1963 the Petitioner's (husband's) father established a business known as IE Limited in Kowloon. The husband was then aged 17. In 1964 a property was purchased in the husband's name in Purves Road, Jardine's Lookout. There seems no doubt that the funds came entirely from the father as the husband was only 18 at the time. The whole family lived there.

3. The parties were married in a religious ceremony in July 1969 and a civil ceremony in January 1970. The husband and wife moved into the Purves Road property with the father and his wife where all lived together as an extended family with the parties occupying a separate wing of the house. That house subsequently became the matrimonial home and is still owned by the husband.

4. There are three children of the marriage, all now adult, two sons aged 31 and 25 and a daughter aged 26. It appears that none of the children have any particular educational qualification and none have regular jobs, each living off the largesse of their father, until recently, when he stopped paying their credit card bills. They all still live mostly in the former matrimonial home with their mother, the wife, although some have from time to time been out of Hong Kong in some form of education.

5. The husband was employed in the father's business and it appears that it flourished. In October 1994 the father died and the husband inherited the father's substantial estate. A central item in the assets is H House in Mody Road, Tsim Sha Tsui, an unencumbered commercial building, which presently earns rents of some HK$480,000 a month. It is said that the total value of the husband's assets in 1996 was as much as US$79 million. There were unhappy differences between the husband and the wife. It is the husband's case, not accepted by the wife, that he left the matrimonial home in December 1997. He says that there was a reconciliation attempt in May 1999, but he left the matrimonial home again in February 2000.

6. In July 2000 the husband issued a petition based upon allegations of unreasonable behaviour on the part of the wife. She has denied those allegations and has cross-petitioned alleging unreasonable behaviour on his part. An answer has been filed to the cross-petition. The parties are at odds as to whether each other has conducted the proceedings sensibly but it is not necessary for me to resolve this issue at this stage. It is not a matter that I intend to take into account in determining maintenance pending suit. It appears that there is agreement that in about April this year the husband will seek leave to present a new petition based upon 2 years apart and the wife will not contest that course. Leave will be granted as the court will always encourage parties to resolve their differences by non-contentious means.

7. When he issued the petition the husband's solicitors wrote a letter (Ex B8-3308) to the wife informing her of the budget he required her to keep pending the resolution of matrimonial issues. He offered then, and at the present time still, allows the wife to remain in the former matrimonial home.

8. He meets the cost of the staff, a cook, maid, cleaner and driver. He provides the wife with a car. He meets the utility costs of the household, although there is an issue as to whether the wife is properly using the utilities. He pays the monthly subscription for the Ladies Recreation Club and the Jockey Club but requires that she reimburse him for her expenditure there. In addition he pays HK$130,000 a month for her general expenses. This sum includes an allowance of HK$30,000 to cover household food. Originally he had met Wellcome and Park 'N Shop accounts but decided that they were too high and substituted the allowance of HK$30,000 and stopped meeting those accounts. He has cancelled all her credit cards, which were supplementary cards on his credit card accounts.

9. The wife now comes to the court and says that this provision is insufficient to meet her reasonable needs.

Maintenance pending suit;

10. The principles upon which maintenance pending suit are awarded were not in dispute. They may be shortly stated. The jurisdiction lies in s 3 MPPO which provides:

"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 petition or making of the application and ending on the determination of the suit, as the court thinks reasonable."

11. Mr Poll relied upon the familiar words from Jackson's Matrimonial Finance and Taxation, 6th Ed para 2.12 in which the principles on the interpretation of s 3 MPPO are collected. It is convenient to set them out.

"It is important for both the parties that 'reasonable' provision should be made; on the one hand to ensure that the wife is properly supported at a time when she maybe in particular need of financial support; on the other hand to ensure that the husband is not crippled by too severe a burden imposed on hand at a time when he, too, maybe feeling for the first time the yoke of having two establishments to support"

and:

"Perhaps the two most outstanding matters in every case are the standard of living of the parties and the ability of the husband to pay. The wife maybe in a particularly vulnerable situation at this stage and it is important that she should as quickly as possible be put in a position where, until the matrimonial disputes have been resolved and a more permanent financial situation can be achieved, she can reasonably maintain herself (and the children if any) without hardship and at the standard to which they were used when the marriage effectively existed as one household"

and finally:

"In general the wife should not be relegated to a lower standard of living than that which he, a husband enjoys, even pending suit."

12. It is clear from the facts and the chronology that I have set out that this is a very wealthy family. They may not fall within the category of "the ultra-rich" but they are, on any terms, very wealthy. In determining maintenance pending suit in such a case it is important to remember the words of Thorpe J (as he then was) in F v F [1995] 2 FLR 45 at 50:

"First, in determining the wife's reasonable needs on an interim basis it is important as a matter of principle that court should endeavour to determine reasonableness according to the standards of the ultra-rich and to avoid the risk of confining them by the application of scales that would seem generous to ordinary people. Thus I conclude that it would be wrong in principle to determine the application on some broad conclusion that if the wife cannot manage at the rate of a quarter of a million a year, she ought to be able to. I think that it is necessary to establish a yardstick that more nearly reflects the standard of living which has been the norm for the wife ever since the marriage and for the husband for considerably longer."

13. At the centre of Mr Poll's submissions was first, the submission that I should measure reasonableness according to the standards of very wealthy people, and second, to emphasise the principle that in general the wife should not be relegated to a lower standard of living than that which the husband enjoys even pending suit.

14. Mr Poll sought, in addition to the provision of the house and staff, a monthly sum of HK$350,000.

15. Mr Pilbrow for his part argued that the family expenses should be limited to the funds available from H House, from which he said they traditionally came. He showed how the wife had been requested to reduce her spending, and argued that capital had been depleted to support her spending pattern. He argued that the wife had made insufficient financial disclosure and was guilty of financial misconduct.

16. Mr Pilbrow said that the provision of the house, staff and the current cash sum of HK$130,000 a month that is being paid was sufficient to meet the wife's reasonable needs in terms of s 3 MPPO.

17. It is well-established that in an application for maintenance pending suit there ought not to be a detailed examination of the parties financial affairs. The application is necessarily an emergency application and if the order made is too high, or too low, it can be adjusted on the substantive hearing for ancillary relief. But that said, it is necessary to look to some extent at the financial position in order to determine standards of living of the parties and the availability of funds.

18. Both counsel took me through various aspects of the documents to show to me evidence that supported their submissions.

19. It does appear that the H House Income was used to meet family expenditure. But other funds were used too, over a number of years, apparently for a long time without complaint by the husband, and the source of those funds is not yet clear. The husbands...

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