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K v K

Judgment Cited authorities 3 Cited in Precedent Map Related
Vincent
Judgment Date21 February 2005
Subject MatterMatrimonial Causes
Judgement NumberHCMC2/2004
CourtHigh Court (Hong Kong)
HCMC000002/2004 K v. K

HCMC 2/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MATRIMONIAL CAUSES NO.2 OF 2004

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BETWEEN

K Petitioner
(Judgment Debtor)
and
　 K Respondent
(Judgment Creditor)

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Before : Hon Hartmann J in Chambers

Date of Hearing : 3 February 2005

Date of Judgment : 3 February 2005

Date of Handing Down Reasons for Judgment : 21 February 2005

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REASONS FOR JUDGMENT

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Introduction

1. In 1998, the petitioner (the judgment debtor), a retired police officer in receipt of a government pension, instituted divorce proceedings against his wife, the respondent (the judgment creditor). During the course of the proceedings it was agreed that the petitioner would pay maintenance to the respondent in the sum of $3,000 per month. On 6 November 1998, upon the making of the decree nisi, that agreement was made an order of court and that order, unamended, still stands.

2. From August 2001, however, the petitioner failed to pay the respondent any of the maintenance due to her in terms of that order. In the result, by way of a summons issued on 5 January 2004 — later sought to be amended by a second summons issued on 13 August 2004 — the respondent sought the assignment or transfer to her of so much of the petitioner’s government pension as was necessary to settle the arrears of maintenance due to her and to secure payment of her current maintenance.

3. When the matter came before me on 3 February 2005, although duly notified, the petitioner chose not to attend the hearing. I therefore proceeded in his absence, agreeing to the amendment of respondent’s summons.

4. The evidence before me revealed that, as at 11 November 2003, the petitioner had been in receipt of a continuing government pension in an annual sum of $32,355.67, this making for a monthly payment to him of $2,696.31. There was no evidence as to whether the petitioner had any form of employment or any income other than his pension.

5. Having heard submissions from Mr Clough, respondent’s counsel, I refused to exercise my discretion in terms of s.12 of the Matrimonial Proceedings and Property Ordinance. Cap.192, to enforce payment of those arrears of maintenance that had fallen due more than 12 months before the respondent’s proceedings had been instituted on 5 January 2004. In the result, all arrears of maintenance which had fallen due before 1 January 2004 were remitted.

6. But that being said, I did make an order in terms of s.23(1) of the Crown Proceedings Ordinance, Cap.300, as read with s.12(1) of the Pensions Ordinance, Cap.89, and O.77 r.16 of the Rules of the High Court, that the Director of Accounting Services pay so much of the petitioner’s pension to the respondent as was required to serve two purposes; first, to settle the arrears of maintenance which had fallen due since 1 January 2003 and, second, to secure all current maintenance falling due.

7. I now give my reasons for these decisions.

The arrears

8. S.12 of the Matrimonial Proceedings and Property Ordinance directs that there shall be no entitlement to claim arrears of maintenance which have fallen due more than 12 months before commencement of proceedings unless the court, in the exercise of its discretion, grants leave. In this regard, s.12 reads :

“ (1) A person shall not be entitled to enforce through the court the payment of any arrears due under an order made by virtue of section 3, 4(1), 5(2), 8(5) or 8(6) without the leave of the court if those arrears became due more than twelve months before proceedings to enforce the payment of them are begun.
(2) The court hearing an application for the grant of leave under this section may refuse leave, or may grant leave subject to such restrictions and conditions (including conditions as to the allowing of time for payment of the making of payment by instalments) as that court think proper, or may remit the payment of such arrears or of any part thereof.”

9. S.12 gives statutory form to a long-standing practice, one inherited from the ecclesiastical courts, that, as a general rule, arrears of maintenance are not to be enforced (by whatever means) if they have remained outstanding for more than 12 months : see, for example, Bernstein v. O’Neill [1989] 2 FLR 1 per Ewbank J.

10. As to the reason for the practice, in Russell v. Russell [1986] 1 FLR 465, Sir John Donaldson, Master of the Rolls, observed (at 473B) that :

“ The philosophy underlying the rule must … have been that if the complainant waited a year to seek enforcement of the order, she did not need the money, or at least had managed well enough without it, and the husband might reasonably regard the liability as something which he could forget about.”

11. An applicant must therefore take reasonably timeous steps; that is, within a year, to assert his or her right to maintenance unless...

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