Mmwd v Clm

CourtFamily Court (Hong Kong)
Judgment Date23 Jul 2015
Judgement NumberFCMC6171/2014
SubjectMatrimonial Causes
FCMC6171/2014 MMWD v. CLM

FCMC 6171/2014

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES NO. 6171 OF 2014

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BETWEEN
MMWD Petitioner
and
CLM Respondent

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Coram: HH Judge C.K. Chan in Chambers (not open to the public)
Dates of Hearing: 23-24 June 2015
Date of Judgment: 23 July 2015

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JUDGMENT
(ANCILLARY RELIEF)

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1. This is a trial on the parties’ respective claim for ancillary relief against each other. For the sake of convenience, I shall continue to call the Petitioner “the wife” and the Respondent “the husband” in this judgment despite the fact that a decree absolute of divorce had already been granted.

The Parties’ Respective Position

2. There is no doubt that the central issue of this case is on how to divide up the main family asset, namely the former matrimonial home at Robinson Road, Hong Kong (“the former matrimonial home”), the net value of which is agreed at $16,940,000.

3. From the final submissions of the wife, she asks for a sale of the former matrimonial home with the proceeds of sale to be divided up between the parties. It seems that she no longer insists on a periodic payment order and in its stead asks for a clean break order. Furthermore, as a matter of principle, she has no objection for the former matrimonial home to be shared equally between the parties, ie each to get 50% and in monetary term, $8,470,000 ($16,940,000 x ½ = $8,470,000). However, it is her case that the husband has to repay the following sums to her, namely:

(1) $2,000,000, being half share of the $4,000,000 that she has paid for the son’s education in the US;

(2) $1,700,000, being the moneys that she has lent to the husband during marriage;

(3) $1,000,000 being the husband’s share of the various mortgage repayments and interests; and

(4) $255,000 being a judgment debt owed by the husband in DCCJ No.1669 of 2014.

All these sums added up to $4,955,000 (“the repayment sum”), which should be deducted from the husband’s half share of the former matrimonial home. By this calculation, the actual amount that the husband should get is $3,515,000 ($8,470,000 - $4,955,000 = $3,515,000), which is roughly about 20% of the net value of the former matrimonial home.

4. On the other hand, the husband recognises that the wife might have made more financial contribution during the marriage and therefore, he agrees that a slightly bigger share of the former matrimonial home should be given to her. However, he does not agree that the departure from equal sharing should be as big as 80/20. He is of the view that a reasonable division should be 55% (in monetary term $9,317,000) to the wife and 45% ($7,623,000) to him.

Brief History

5. The wife was born in 1953 and she is now 62 years of age.

6. The husband was born in 1948 and he is now 67 years of age.

7. The parties were married in 1985.

8. In 1986, a son, M was born who is now aged 28. M is currently working but is still living with both parties at the former matrimonial home.

9. There is no dispute that the parties formally separated in about 2002 but they continued to live in the former matrimonial home together with M, albeit in separate households.

10. In 2014, the wife issued a petition for divorce based on 2-year separation with no opposition from the husband. Decree nisi was granted on 11 September 2014, which was later made absolute on 8 January 2015.

11. As for ancillary relief, the parties went through a FDR hearing which was not successful. The case was therefore adjourned for trial which eventually came to my court for a final hearing.

Issues

12. I understand that the parties had agreed on a list of issues for determination through their lawyers at the Pre-trial Review (before the PTR Judge). But after hearing the parties’ evidence and bearing the parties’ latest positions in mind, I am minded to simplify and re-formulate the issues as follows:

(1) Whether the wife is entitled to the repayment sum (ie $4,955,000) from the husband? and

(2) What ancillary relief orders should be made under the circumstances of this case?

The Repayment Sum

13. It is the wife’s case that she is entitled to the repayment sum from the husband, which sum is made up of the following figures:

(1) $2,000,000, being half share of the $4,000,000 that she has paid for the son’s education in the US;

(2) $1,700,000, being the moneys that she has lent to the husband during marriage;

(3) $1,000,000 being the husband’s share of the various mortgage repayments and interests; and

(4) $255,000 being a judgment debt owed by the husband in DCCJ No.1669 of 2014.

14. In considering the repayment sum, I have to remind myself that the burden is on the wife to prove firstly, that there were indeed such sums being paid by her, and secondly, that she is entitled to be repaid those sums of money from the husband.

15. The general position of the husband is that he does not dispute that the wife might have made more financial contributions than him during marriage, but he does not agree to the figures as quoted in the repayment sum.

The Costs of the Son’s Education in US: HK$4,000,000

16. It is the wife’s case that she had paid all the son’s educational and living expenses in the US from 2005 to 2011. She said she had used the pension received in 2002 in the sum of USD 393,062.41 (equivalent to about HK$3,065,000 at the exchange rate of USD1: HK$7.8) together with her own savings to defray those expenses of the son (paragraph 44 at p.42 of Bundle A1). She also produced exhibit MMWD-22 which were letters from her former employer and bank statements, cheques and cheque studs of various dates showing those payments.

17. In order to verify her claim, I have looked at Exhibit MMWD-22 (pages 123-186 of Bundle B1). Page 123 was a letter from her former employer saying that the wife was paid a sum of USD 393,062.41 in December 2012 as her pension, which date must be wrong because the wife actually retired in 2002, not 2012. I accept this must be a typing error made by the former employer. But leaving this typo aside, this letter can only prove that the wife has received the sum of USD 393,062.41, but not as proof of her actual expenditures on M’s education in the US.

18. The other documents in exhibit MMWD-22 consist of the wife’s bank statements, cheque studs and cheque copies. My first observation on the cheque studs and cheque copies is that while the vast majority of them were drawn in the name of the son, some of them were actually drawn in the name of the husband. I understand that the wife’s case is that some of the payments were actually made through the husband.

19. For the bank statements, I note that from 2005 to 2011, there were various withdrawals from the wife’s account with the word “Mxxxxx” hand written next to those items. I have tried to add up those bank withdrawals, together with the cheque stud records (pages 124-173, Bundle B1), the total amount that I got was HK$2,021,000. In addition, there were also some bank remittance records (pages 174-180, Bundle B1) amounting to USD 187,306 (equivalent to about HK$1,460,986). Finally, there were some cheque copies (pages 181-186, Bundle B1) which amount to HK$317,000. All these sums added up to HK$3,798,986.

20. Although the sum of $3,798,986 might not be very far from the $4,000,000 claimed by the wife, this calculation exercise shows the difficult task of the wife in proving that she has spent the actual amount of $4,000,000 on the son, not to mention that there lacks a direct evidential link between the figures quoted and the son’s education. That is exactly why the Hong Kong Court of Final Appeal did not find favour in conducting this sort of minute retrospective investigation on a failed marriage. In the landmark case of LKW v DD[1], Ribeiro PJ said at paras 62-63:

“62. The fourth principle is that the court should not countenance any attempt to engage in costly and often futile retrospective investigations of the failed marriage which tend to deplete the parties’ (and the courts’) resources and to increase antagonism and discourage settlement.

63. Such attempts have been encountered in various contexts, including disputes over the extent of a party’s assets; over the contribution made to the welfare of the family; over the parties’ conduct; over claims to be compensated for having suffered some disadvantage, and so forth.”

21. Furthermore, even if the wife can really prove that she has spent the $4,000,000 on the son, she is also faced with the difficult task of convincing this court that she is entitled to be repaid half of that sum from the husband’s share of the family assets. We all know that parties may contribute to the marriage in different ways. A party may contribute more in financial terms but that does not mean that at the end of the marriage, the other party has to repay him or her half of those payments. Of course, one party may claim he or she has made a special contribution to the family which might justify a departure from equal division of the family assets, but the approach of asking for the repayment of half of whatever one might have paid during the...

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