FCMC 6980 / 2015
IN THE DISTRICT COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
NUMBER 6980 OF 2015
|Coram: Her Honour Judge Sharon D. Melloy in Chambers (Not open to public)
|Date of Hearing: 20 June 2016
|Dates of receipt of additional documents: 24 June and 4 July 2016
|Date of Judgment: 3 August 2016
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 pursuant to s 3 of the Matrimonial Proceedings and Property Ordinance Cap 192 (MPPO) and for interim maintenance for the only child of the family, a boy N who was born on the XX June 2004, under s 5 of the same ordinance.
The main issues
2. The only issue to be determined at this hearing is how much should the husband pay to the wife for her interim provision and that of the child of the family? The husband has, as at the day of the hearing, offered to undertake to continue to pay for the government rent and rates, electricity, gas, water, septic tank expenses, home phone, internet/Now TV, rental of the wife’s garden and partial home security amounting to an estimated HK$9,334 per month (the utility expenses). The mortgage on the former matrimonial home, in which the wife and child live, has recently been paid off so there is currently no issue relating to the provision of housing. In addition the husband will continue to pay for the child’s school fees and all school/educational related expenses including the fees for his extracurricular activities. Further the husband pays for the hire purchase agreement for the wife’s car and other related expenses, but not for her petrol and parking costs. In addition he offers HK$27,000 per month (i.e. HK$30,000 less a reduction of HK$3,000 for alleged overspending on a credit card). The wife for her part now seeks HK$81,634 per month for herself and N inclusive of provision for holidays in addition to the undertakings set out above. In the wife’s summons she also sought litigation funding. Ms Rattigan confirmed on her behalf during the hearing that she was not pursuing that aspect of her application at the present time.
The wife’s summons
3. In the wife’s summons dated the 4 March 2016 she set out her claim as follows:
1. the Petitioner do pay maintenance pending suit for the Respondent, including an amount to meet her legal costs, at such rate and for such period as the Court thinks fit;
2. the Petitioner do pay maintenance for the child of the family at such rate and for such period as the Court thinks fit;
3. an Undertaking from the Petitioner to pay the school fees, school related expenses, extra-curricular activities and tuition fees of the child of the family until further order of the Court;
4. an Undertaking from the Petitioner that he will pay the mortgage instalments (if any), all utilities, the land rent, the monthly expenses in respect of the Kowloon Cricket Club, the car registration & insurance and any repair costs in respect of the Porsche car, the costs of the septic tank cleaning expenses for the TWV property; and
5. mutual undertakings from the Petitioner and the Respondent not to sell, dispose of or dissipate any of the family assets pending determination of the Respondent’s claim for ancillary relief. [This part of the summons was also not pursued at the hearing]
4. The parties married on the XX May 2000 having cohabited for a period of time prior to marriage and they separated in May 2015. The divorce petition was issued shortly thereafter on the 4 June 2015 based on mild unreasonable behaviour particulars. The parties have one child N who is now 12 years of age. A second child, a twin unfortunately died shortly after birth. Unfortunately there have been ongoing issues with respect to the arrangements for N, although sensibly the parties have entered into an interim agreement with respect to some aspects of the dispute and there will be a further call over in this respect on the 15 September 2016.
5. The husband is a 46 year old senior airline pilot and the wife is presently a 48 year old full time housewife. She previously worked in the same airline as the husband, but has not worked since the birth of N over 12 years ago. It does not seem to be disputed that the wife has formed another relationship with a third party.
Maintenance pending suit
6. The law is well known and not in dispute. Section 3 MPPO Cap192 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 set off. In other words, if there is any overpayment or underpayment that can normally be rectified at a final ancillary relief hearing.
7. Both counsel have referred inter alia to the Court of Appeal decision in HJFG v KCY (CACV 127/2011, 28 October 2011, where the following principles were reiterated with respect to maintenance pending suit/interim maintenance applications:
a. The sole criteria to be applied in determining the application is “reasonable” which is synonymous with “fairness”.
b. A very important factor in determining fairness is the marital standard of living.
c. 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.
d. 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 situation, the Court should err in favour of the payee.
8. In so far as this particular case is concerned the reference to the marital standard of living previously enjoyed by the parties and the ability of the husband to pay is particularly pertinent.
How much maintenance should the husband pay to the wife as maintenance pending suit for herself and interim maintenance for N?
9. In essence the wife’s case is that the husband should pay what she seeks because she says that is in keeping with the standard of living enjoyed by the parties during the marriage and that the husband can afford to pay that sum. She says that the husband unilaterally imposed the figure of HK$30,000 (less the HK$3,000 per month) on her when he sent her an e-mail dated the 11 January 2016. This sum was not agreed. She says that she has survived to date by relying on the net proceeds of sale from another property previously owned by the parties which has been recently sold; the net proceeds of sale having been divided between the parties.
10. The husband for his part maintains that HK$30,000 per month is in keeping with what the wife spent historically during the marriage. He says that the wife’s expenses are inflated and he accuses her of gross overspending. Consequently he has cancelled the wife’s supplementary American Express and her Fubon credit card and he has refused to continue to make some other payments. Further he says that he simply cannot afford to pay the wife c HK$81,600 per month as claimed, in addition to the other expenses that he has agreed to pay. He also argues that the wife should return to work and that she should sell the Porsche that she currently drives. He also maintains that his earning capacity is in question because of some health issues.
The reasonable needs of the parties and the...