FCMC 4105 / 2018
 HKFC 176
IN THE DISTRICT COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
NUMBER 4105 OF 2018
||Her Honour Judge Sharon D. Melloy in Chambers (Not open to public)
|Date of Hearing:
||28 May 2019
|Date of Judgment:
||3 July 2019
J U D G M E N T
(Maintenance pending suit/Interim maintenance)
1. This is an application by a Respondent wife for maintenance pending suit for herself pursuant to s.3 Matrimonial Proceedings and Property Ordinance Cap 192 (MPPO) and interim maintenance for the two children of the family; boys aged 10 and 6 years, pursuant to s.5 of the same ordinance.
The main issues
2. In broad terms there is only one issue to be determined namely how much maintenance should the husband pay to the wife for herself and the two children of the family on an interim basis.
3. The parties are both French nationals who have lived and worked in Hong Kong on and off since 2006. They met in Shanghai in 2005 and they both work for French companies – the Petitioner husband as the Sales Director for a French design company and the Respondent wife as cabin crew for an airline.
4. The parties married in Hong Kong on the XX February 2012 and they separated on the 29 April 2018 when the husband left the former matrimonial home, with the two children of the family and the Maid. It is his case that the wife had formed a new relationship and that the marriage was over. It seems that he moved out of the former matrimonial home and removed the two children without this being agreed between the parties. The husband had issued a divorce petition on the 12 April 2018 based on the wife’s unreasonable behaviour and the decree nisi was pronounced on the 30 August 2018.
5. Unfortunately matters were further complicated by the mother being diagnosed with breast cancer in December 2018. She is currently having treatment in Paris and since then she has flown back and forth between Hong Kong and Paris on a frequent basis.
6. Unfortunately the parties have been unable to reach agreement with respect to the children. The mother currently has contact with them when she is in Hong Kong and the parties have sensibly reached an agreement with respect to the school summer holiday. However, longer term it is the mother’s wish that the children should relocate back to France with her and on the 23 April 2019 she issued a summons to that effect. This is opposed by the father.
7. Given the mother’s illness she is currently on sick leave and thus her earning capacity is severely compromised in the immediate to short term. During the hearing her counsel confirmed that she is currently earning HK$6,375 per month and that she is likely to continue to receive this amount until June 2020.
8. Despite this the husband makes no proposals to maintain the wife, or the children when they are in her care. He says that he earns enough to support himself and the children and that the children should remain with him and see their mother as frequently as possible. Apart from paying the rent on the former matrimonial home for a month and a further HK$5,000 in October 2018, he has not contributed anything towards the mother’s maintenance.
9. During the marriage the parties enjoyed a comfortable but not overly lavish lifestyle in Discovery Bay. They lived in smallish units of between 800 – 1037 square feet, enjoyed the club facilities in Discovery Bay and returned home to France on a regular basis. The wife also says that she took the children on holidays in the region. The wife took extended maternity leave until the youngest child was 4 years old and she then returned to work on a part time basis working on a two months on/two months off schedule. The youngest child currently attends an international kindergarten, but he will join his brother in the local education system in September 20019.
Each party’s respective proposals
10. The husband makes no proposals. He suggests that the wife has not made full and frank disclosure and that she must be receiving additional income or other remuneration that has not been disclosed.
11. The wife for her part says that her financial situation is critical. In her affidavit in support she sought between HK$31,802 – HK$38,602 per month. In counsel’s submission he says that she needs HK$32,618 per month and that she has cut down her expenses to the barest minimum.
Maintenance pending suit and interim maintenance
12. The law is well known and not in dispute. Section 3 Matrimonial Proceedings and Property Ordinance Cap 192 states that the only governing principle is that the court shall make such order as it considers reasonable in all of the circumstances of the case. Consequently, applications such as these are approached on a broad-brush basis. A detailed examination of the parties’ means may be examined at a later date at a full ancillary relief hearing if there is no agreement in the meantime, when there is then every opportunity to achieve fairness by means of a set off. In other words, if there is any overpayment or underpayment that can normally be rectified at a final ancillary relief hearing. Applications for interim maintenance under section 5 of the same ordinance are approached in the same way. As Rayden points out
…what really matters is the immediate and reasonable requirements of the wife balanced against the ability of the husband to pay for them, assessed using a broad-brush approach. (See paragraph 16.17 of Rayden, 18th edition).
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...