IN THE DISTRICT COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
NUMBER 1559 OF 2014
(Transferred from FCMC 2676/2012
pursuant to an Order dated 30 October 2013))
Coram: Deputy District Judge I. Wong in Chambers (Not Open to Public)
Dates of Hearing: 10 – 11 and 15 April, 1 and 5 August and 20 – 21 November 2014
Dates of Closing Submissions: 8 and 15 December 2014
Date of Handing Down Judgment: 18 February 2015
J U D G M E N T
1. This is a trial on the ancillary relief upon the divorce of the parties.
2. The marriage in issue is a second marriage for both parties but sadly it has to come to an end by way of a divorce. The wife is the petitioner in the present proceedings. Decree nisi was granted on 2 April 2014.
3. The husband, now aged 49, was originally from the Mainland and the wife, 46 years old, is a local Chinese.
4. The husband is an engineer by profession and the wife also worked as an assistant purchasing officer in the construction field. At all the material times, the parties were in gainful employment. It was only in June 2011 that the wife resigned from her job and has since become jobless.
5. The parties met each other in 1995 while working in the same company and soon developed a relationship. At that time, both were already married to someone else.
6. The husband divorced his former wife in about 1998 or 1999 in the Mainland. He has a son from the former marriage. He was born in April 1994, now aged 20, and is a 3rd year medical student in Hong Kong (“the son”).
7. As regards the wife, she divorced her former husband in 2000. There was no child from this marriage.
8. In about 2000, the parties started cohabitation at the wife’s home in Hong Kong. At about the same time in May 2000, the parties purchased a property in Shenzhen (“the Shenzhen Property”) in their joint names for about RMB 400,000. The wife’s version is that she contributed $100,000 to the purchase. The husband’s version is that he paid the down payment from the proceeds of sale of another property in the Mainland, which was owned by him and his former wife. The remaining sum of RMB 320,000 was paid by way of a mortgage; and all the mortgage payments were made by him. Be that as it may, these differences are not material as far as the issues in dispute in the present proceedings are concerned.
9. Since the husband worked in Shenzhen, the Shenzhen Property was used as his residence. The wife stayed with the husband there every weekend.
10. On 12 March 2001, the parties were married in Hong Kong.
11. In about November 2002, the husband migrated to New Zealand. During this period the wife delivered necessities to the husband, and visited him there. The wife also assisted the husband in dealing with the rental matters of the Shenzhen Property and took care of the son.
12. Sometime later, the son also joined the husband in New Zealand.
13. On 8 March 2004 the parties registered their marriage again in New Zealand.
14. In May 2005 the husband purchased a property in Full Art Garden of Yuen Long (“the FA Property”) for $880,000, which was used as the wife’s residence. The husband’s version is that the FA Property was purchased entirely with his own monies.
15. Then in 2006, upon being granted residency in Hong Kong by virtue of his connection with the wife, the husband joined the wife and made the FA Property their matrimonial home. The husband also found a job in Hong Kong.
16. At about the same time in July 2006, the Shenzhen Property was sold for RMB 669,000. It is not in dispute that the husband kept all the proceeds of sale. The husband made use of the proceeds of sale to purchase a property at Sun Yuen Long Centre for $1,480,000 (“the SYLC Property”). This property was originally rented out for incomes but it has become the home for the husband and the son upon their moving out of the FA Property.
17. In August 2008, the son left New Zealand and joined the family in Hong Kong.
18. In 2009, the husband moved to another job which required him to work in the Mainland. As from early 2010, he was required to station in Chongqing and only returned to Hong Kong for 3 days every month.
19. Then sometime in June 2011, the wife resigned from her job and visited the husband in Chongqing. It would appear that it was after her return to Hong Kong that the parties’ relationship started to deteriorate; and eventually this led to the wife’s issuance of a divorce petition on 1 March 2012 on the grounds of 2 years separation since 2002. This is the case FCMC 2676/2012 (“the 1st divorce petition”). Subsequently by a consent order dated 30 October 2013, leave was given for the wife to commence another petition for divorce on the ground that the parties had separated since June 2011. This has become the present proceeding.
20. Despite the fact that in both of her petitions the wife pleaded that there were no children of the family, it is clearly not truthful even on the basis of the wife’s own evidence. I have no doubt that the son was a child of the family for the purpose of the present proceedings.
21. It is common ground that the husband and the son moved out from the matrimonial home to live at the SYLC Property on 30 April 2012. Sometime later in September 2012, the son was admitted to a medical school. As of now, the husband and the son are living in the SYLC Property whilst the wife is living alone at the FA Property. The 2 properties are registered in the sole name of the husband.
22. Since May 2013, the husband has been assigned to station in Guizhou of the Mainland; and as for wife, she has been out of work since June 2011.
23. The husband has been paying maintenance pending suit $12,000 per month since 1 October 2012 pursuant to an order dated 7 September 2012.
Parties’ Late Applications
24. On the 1st day of trial on 10 April 2014, the wife sought leave to adduce the expert evidence of a psychiatrist pursuant to Order 38, rule 36 of RHC. Her application was dismissed. Since I have already set out my reasons in my Ruling dated 10 April 2014, I would not repeat the same here.
25. Then on the 2nd day, ie 11 April 2014 the husband filed his Form A seeking the return from the wife a few items of wedding gifts.
26. Ms Cheng, for the wife, raised the objection that it was a late application. I allowed the application for the reason that the husband’s demand for the return of these items had always been a live issue. The wife was fully aware that these items, being wedding gifts from one of his close relatives, were regarded by the husband of high sentimental values. I took the view that no prejudice would be caused to her.
The Legal Principles
27. The jurisdiction of the court in granting financial relief for a party is governed by section 4 of the Matrimonial Proceedings and Property Ordinance, Cap 192 (“MPPO”) which provides:-
“4. Financial provision for party to a marriage in cases of divorce, etc.
(1) On granting a decree of divorce, a decree of nullity of marriage or a decree of judicial separation or at any time thereafter (whether, in the case of a decree of divorce or of nullity of marriage, before or after the decree is made absolute), the court may, subject to the provisions of section 25(1), make any one or more of the following orders, that is to say-
(a) an order that either party to the marriage shall make to the other such periodical payments and for such term as may be specified in the order;
(b) an order that either party to the marriage shall secure to the other to the satisfaction of the court, such periodical payments and for such term as may be so specified;
(c) an order that either party to the marriage shall pay to the other such lump sum or sums as may be so specified.
(2) Without prejudice to the generality of subsection (1)(c), an order under this section that a party to a marriage shall pay a lump sum to the other party-
(a) may be made for the purpose of enabling that other party to meet any liabilities or expenses reasonably incurred by him or her in maintaining himself or herself or any child of the family before making an application for an order under this section;
(b) may provide for the payment of that sum by instalments of such amount as may be specified in the order and may require the payment of the instalments to be secured to the satisfaction of the court.”
28. In deciding on how to exercise its power in this regard for a party to the marriage, the court is bound to consider section 7 (1) of MPPO which provides:-
(a) the income, earning capacity, property and other financial resources which each of the parties to the marriage has or is likely to have in the foreseeable future;
(b) the financial needs, obligations and responsibilities which each of the parties to the marriage has or is likely to have in the foreseeable future;
(c) the standard of living enjoyed by the family before the breakdown of the marriage;
(d) the age of each party to the marriage and the duration of the marriage;
(e) any physical or mental disability of either of the parties to the marriage;
(f) the contributions made by each of the parties to the welfare of...