N v N

Judgment Date05 February 1997
Judgement NumberFCMC424/1994
Subject MatterMatrimonial Causes
CourtFamily Court (Hong Kong)
FCMC000424/1994 N v. N




SUIT NO. 424 OF 1994



  N Petitioner
  N Respondent


Coram : His Honour Judge de SOUZA in Chambers

Date of Handing Down Judgment : 5 February 1997





1. By two applications in these ancillary proceedings, the petitioner wife seeks orders for financial provisions for herself and the sole child of the family, a daughter aged nearly 7 whose custody by consent vests in herself, and for avoidance of property dispositions. As for maintenance and ancillary relief, it is now clear that she is seeking periodic payments totalling $7,260 which she says would be realistically required to meet their genuine and modest needs as particularised in her latest affirmation and a capital sum for herself in the sum of at least $800,000 viz., a third of the respondent’s capital worth conservatively assessed at $2.5m. She proposes to leave the question of apportionment of maintenance to the good sense of the court.

2. For convenience and easy reference, page references, where appearing, relate to the notes of proceedings and the petitioner’s bundles of documents, of which there are three. There is also a correspondence bundle but little, if any use, has been made of it during the lengthy hearing. Thus, by way of illustration, B 1 – 3, B 2 – 33, B 3 – 333 and NP – 8 respectively refer to page 3 of bundle 1, page 33 of bundle 2, page 333 of bundle 3 and page 8 in the notes of proceedings.

The petitioner’s case

3. It is wife’s firm conviction that her husband is worth considerably more than is portrayed particularly in light of the evidence disclosed since the commencement of the hearing in the shape of documentary evidence revealing that well over $0.5m could be traced to him in 1991. This, as the wife is at pains to point out, is in addition to the sum of $1,845,000 which the husband had admittedly received from his father by way of assistance for the discharge of huge debts that allegedly arose following the failure of his business and the $900,000, the alleged one-third share of the realised worth of the 2 properties, the subject of the section 17 application to which I shall shortly refer.

4. In advancing her claim for capital provision, the wife fully accepts the shortness of the marriage and the even shorter cohabitation of just under 6 years but, however, contends that her contribution to the family’s welfare as homemaker, wife and mother warrants adequate recognition and a fair share of the family assets, albeit that she had in no way contributed financially to the acquisition of any of the 4 properties situated at Wing Shing House.

The Section 17 application

5. As regards this application (which was hotly contested as was her claim for lump sum provision), the wife’s case is simple enough.

6. The more than coincidental timing of the husband’s transfer of his share in the 2 properties “back” to his parents in February 1994, the month following the presentation of the petition for divorce, viewed from the circumstances and the history of the case, and as a matter of fact, is consistent only with an intention on his part to frustrate any attempt by her to secure a fair distribution of the family assets.

7. In addition, the timing of the transactions, triggering as it does the statutory presumption, greatly assists her submission that these assignments could only have been effected with the nefarious motive and intention of cutting her off financially. In sum, this traditional Chiu Chow family has closed rank against her with his parents coming to his aid. In the process, both the respondent and his father, it is submitted, have adduced untruthful evidence.

8. In developing her case, it is contended that the disposition of the said 2 properties, unless set aside, will inevitably have the consequence of defeating her claim for ancillary relief and that the respondent must have intended such a result.

9. From the circumstances attending upon her departure from the former matrimonial home and since which must have made it abundantly clear to the respondent that the marriage was at an end and by dint of the evidence of the attempted service of the divorce papers in January 1994, the wife argues that when the transfers were made in February, they could only have been made in the knowledge that the prospect of divorce was not only real but imminent. Put simply, the husband was consolidating his position for battle.

The husband’s case

10. The husband has sought to explain the circumstances surrounding the acquisition of all 4 properties, his limited role and participation therein, in essence as bare trustee for his aged parents, his lack of contribution of any kind towards their purchase and upkeep, and the reason for the subsequent assignments. The evidence shows that he was paid effectively approximately a one-third share of the market value of the 2 properties, the subject of the section 17 application, which came to $900,000 but in the event, that sum has been returned to his father.

11. He disputes the existence of any concerted plan to deny the wife of her rightful share of the family assets of which there is none to speak of, he having no capital of any nature. Rather, on account of his failed business and the ensuing crippling debts which remain to be fully discharged and his limited salary, maintenance in excess of $2,500 pm currently falls within his capital to satisfy.

12. Those then are very briefly the areas of controversy falling to be resolved.

The law

13. In any application for financial provisions the court is enjoined to balance the reasonable needs and just requirements of an applicant spouse against the other party’s ability to meet them : B v. B [1989] 1 FLR 119, Delaney v. Delaney [1990] 2 FLR 457 CA. In other words, the proper approach is to look at need within the context of s. 7 (1) of the Matrimonial Proceedings and Property Ordinance, Cap. 192 in terms of what is reasonably required. The matters that I must have cognizance of under s. 7 (1) encompass such considerations as conduct, income, earning capacity, property and resources, needs and obligations, the standard of living enjoyed by the parties prior to the breakdown of the marriage, their ages, the duration of the marriage, the contributions of each spouse to the welfare of the family and prospective loss, if any, consequent upon divorce.

14. As regards the claim brought for and on behalf of the child of the family, I have to pay heed to such matters as her needs, income and resources, if any, the standard of living enjoyed by the family prior to the breakdown of the marriage and the manner in which she was being and in which her parents expect her to be educated.

15. There is a further consideration in as much as the powers of the court is to be exercised so as to place the daughter so far as is practicable in light of the matters set out in paragraphs (a) and (b) of subsection (1), just to do, in the financial position in which she would have been if the marriage continued and her parents fulfilled their financial responsibilities towards her.

16. Each party has the bounden duty to make full and frank disclosure of his or her financial position so as to make it possible for the court to achieve substantial justice between them in the balancing exercise. Any departure from the requisite standard can and normally should be visited by the court drawing adverse inferences against the defaulter on matters the subject of the shortcomings insofar as such inferences can properly be drawn : J v. J [1955] P. 215. Such breach may also attract an order for costs against the offending party : P v. P [1994] 1 FCR 293.

17. With these matters in mind, I turn then to examine the wealth of evidence.

The evidence

The purchase and disposal of the 4 properties

18. All 4 properties are situated at Sheung Wan, Hong Kong. They are flats 6A, 6B, 4C and 8B. The last 2 properties are the subject of the wife’s setting aside application.

19. Flat 6A was bought by the respondent and his parents as tenants in common on 31st August 1990 for $795,000. It was sold on 23rd September 1993. The land search is at B1 – 225. It is as well to bear in mind that the wife left the former matrimonial home with the daughter never to return on 2nd August 1993.

20. The petitioner admits that she did not participate in the purchase and “only knew they (the family) had such a plan” (paranthesis mine) : NP – 25. She was not involved not because the husband did not have a real interest in it. Rather it was, according to her, on account of her “very inferior” status as his wife : NP – 26.

21. It is wholly accepted that she has made no financial contribution to the purchase or maintenance of any of these properties. As is clear, she disputes that his involvement had been limited to facilitating finance only. The purchase money for Flat 6A had emanated from the father who for reasons to be set out did possess the necessary means to do so. The elder Mr. N’s evidence was to the effect that he would deposit money into the son’s bank account so as to enable him to meet the mortgage repayments.

22. The husband’s and his father’s evidence, both oral and affidavit, was to the effect that he had not contributed financially to its purchase or to the servicing of the mortgage. The legal charge to Chiyu Bank dated 31st August 1993 was to secure general banking facilities. The amount of the charge is unspecified on the search record.

23. At the time when the 1st of the 4 properties was acquired, i.e., Flat 6B, the husband and his parents had received advice from a Mr. Ho, the then bank manager of Chiyu Bank that it was...

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