Your World of Legal Intelligence
 Hong Kong | 1-800-335-6202

Mkk v Ysm

Judgment Cited authorities 7 Cited in Precedent Map Related
Vincent
Judgment Date13 September 2013
Year2013
Judgement NumberFCMC11948/2010
Subject MatterMatrimonial Causes
CourtFamily Court (Hong Kong)
FCMC11948/2010 MKK v. YSM

FCMC 11948 / 2010

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES NO. 11948 OF 2010

_______________

BETWEEN

MKK Petitioner
and
YSM Respondent

_______________
Before: Deputy District Judge I. Wong in Chambers (Not Open to Public)
Date of Hearing: 16 August, 2013
Date of Handing Down Decision: 13 September, 2013

__________________

DECISION
(Maintenance Pending Suit)

__________________

1. This is the petitioner husband’s application for maintenance pending suit (“MPS”) for a sum of $60,000 per month.

2. For convenience, I will refer the petitioner as “H” and the respondent as “W”.

Preliminary Matters

3. There are two preliminary matters.

4. The first is that when the application was first taken out on 21 March, 2013, H asked for a lump sum of $1,200,000. As such an application was clearly unsustainable, he subsequently amended the Summons on 3 June, 2013 and prayed for a monthly sum of $60,000 instead, to be paid as from the date of the order to be made herein to the date of determination of the suit.

5. However, the subject matter became somewhat unclear when H, in his 7th Affirmation dated 11 June, 2013, which was filed in support of the application, asked for the payments to be back-dated from the date of the petition, ie 14 September, 2010 or from a time the court deems fit.

6. Mr Chu, counsel for H, clarified that H is content with the Amended Summons and he is not seeking any back-payments. That said, he appeared to have laid the blame on W for not seeking clarification prior to the hearing.

7. With respect, I must say I disagree with him. As a matter of fact, W did raise this query in para. 3 of her 6th Affirmation dated 19 July, 2013, which was filed in opposition to the application. The onus is on H to put his house in order.

8. Another preliminary matter is that on the face of his supporting affirmations, H is asking for legal costs provision for his ancillary relief claim and for living expenses but he never clearly stated how the $60,000 is to be apportioned.

9. Upon my inquiry, Mr Chu initially indicated that $50,000 is for legal costs and the remaining $10,000 for maintenance. However, subsequently in the course of submissions, again upon my further inquiry which I will refer to in later part of this judgment, Mr Chu changed to say that $57,000 is for legal costs and $3,000 for H’s living expenses.

Background

10. Parties failed to settle in the FDR hearing of 3 July, 2012. The present application came quite late; it was only taken out on 21 March, 2013, after the second PTR hearing on 28 February, 2013. By now most of the preparation work for the trial has since been completed and the trial has been set down to be heard commencing from 7 January, 2014, with 8 days reserved.

11. H was born in October, 1948 and is going to be 65 years old. As for W, she is now 63.

12. The marriage is definitely a long one. They married in 1972. This would be 28 years if calculated up to July, 2000 when they departed from each other. This union gave birth to 2 children. The elder is a daughter, born in 1973 and is now aged 40. She is married and independent. The younger is a son, now aged 34, also married and independent.

13. On 14 September, 2010 H petitioned for divorce on the ground of 2 years separation. He stated on his petition, and this is not disputed by W that, the parties started to separate from each other on 1 July, 2000. As will be seen in the submissions made by Ms Yip, counsel for W, this extended length of separation bears some significance in her arguments in relation to H’s present application.

14. Decree nisi was granted on 25 August, 2011 and it was made absolute on 19 December, 2011.

15. The facts of this case are rather unusual in that the bulk of the matrimonial assets, at least as alleged by H, are in the hands of W.

16. In brief, according to his Form E dated 8 July, 2013, H has only one property in his sole name, which is a residential unit in Dongguan of the Mainland (“the Dongguan Property”). He reported a net asset worth of about $2,788,000. This already includes his share of the value of the matrimonial home which is said to worth $1,679,000 but is registered in the sole name of W. He reported to have about $18,000 in the banks but his liabilities are stated to be about $114,000. Hence, the picture is, leaving the Dongguan Property aside, H is reportedly insolvent.

17. At the beginning of the hearing, Mr Chu informed the court that H managed to sell the Dongguan Property for RMB 950,000. The sale is due to complete in mid of September, 2013; by then he will have about $1,100,000.

18. As for W, she has at least 8 landed properties; her reported net worth is in the region of $8,599,000.

The Law and Legal Principles

19. Under section 3 of the Matrimonial Proceedings and Property Ordinance, Cap. 192 (“the MPPO”), 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 presentation of the petition or the making of the application and ending on the date of the determination of the suit, as the court thinks reasonable.

20. The Court of Appeal has recently in HJFG v. KCY [2012] 1 HKLRD 95 summarised the established principles,

“33. Jurisdiction to award maintenance pending suit to a spouse is statutory, being governed by the provisions of s.3 of the Matrimonial Proceedings and Property Ordinance, Cap. 192. By that section the court is given a discretion to make an order requiring either party to the marriage to make to the other such periodical payments for his or her ‘maintenance’ as the court thinks ‘reasonable’, subject to the condition that the duration of any such order is limited to the period of what may broadly be called the divorce litigation.
‘Maintenance’ is a broad concept. I do not seek to define its exact meaning but it seems to me that it must be restricted to those payments necessary to meet the recurring costs of living at whatever standard of living is appropriate. That being the case, no matter how great the wealth of the parties and how unevenly distributed that wealth may be at the time an application for interim maintenance is made, the court has no jurisdiction to make orders which for all practical purposes result in a form of pre-trial capital re-balancing. In the present case, the judge recognised the long-established approach of looking to the “immediate and reasonable needs” of the wife and son.

35. As to the amount of maintenance pending suit that may be paid, the Ordinance provides only that it must be ‘reasonable’, that is, having regard to the circumstances of the case, that it must be fair.

36. An important factor in determining fairness is a consideration of the marital standard of living. In this regard, each case must be considered according to its own circumstances. It is not simply to be assumed that great wealth equates to great extravagance. Some married couples who enjoy great wealth spend with comparative modesty and with a discipline born of discretion, others enjoy consumption on a grand scale.

37. The principles that have emerged over time to guide judges in matters of interim maintenance have been fashioned in the main to ensure fairness. This is well illustrated in the judgment of Nicholas Mostyn QC, sitting then as a deputy High Court judge, in TL v ML and Others (Ancillary Relief: Claim against Assets of Extended Family) [2006] 1 FLR 1263, at 1289, in which, having looked at earlier authorities, he derived the following principles that speak specifically to fairness or are based on the need to ensure it. For present purposes, it is sufficient to cite the relevant principles without citing the judge’s reference to the source of those principles:

i. The sole criterion to be applied in determining the application is ‘reasonableness’, whichis synonymous with ‘fairness’.

ii. A very important factor in determining fairness is the marital standard of living. This is not to say that the exercise is merely to replicate that standard.

iii. 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. That budget should be examined critically in every case to exclude forensic exaggeration.

iv. 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 a situation, the court should err in favour of the payee.

38. Finally, it is to be noted that in applications for interim maintenance, when the amount to be paid is for a limited period only and not all of the evidence is necessarily before the court, it is not appropriate, nor indeed in most cases possible, for the court to conduct a detailed investigation into the finances of the parties. While, in order to determine what is or is not reasonable, some analysis is always required, that analysis can be conducted on a ‘broad brush’ basis.”

21. I am guided by the above principles.

22. It is well settled that an application for MPS can include legal costs provision for the trial of the ancillary relief: see KGL v. CKY [2003] 2 HKLRD 301.

23. The English Court of Appeal in Currey v. Currey [2007] 1 FLR 946, set out certain guiding principles on how legal funding as MPS may be granted. The principles set out there have been cited and relied upon locally in the Family Court.

24. Mr Justice Hartmann JA (as he then was), again, in HJFG v. KCY [2012] 1 HKLRD 95...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT