P, Jm v I, Ky

CourtFamily Court (Hong Kong)
Judgment Date28 May 2018
Neutral Citation[2018] HKFC 81
Judgement NumberFCMC179/2018
SubjectMatrimonial Causes
FCMC179/2018 P, JM v. I, KY

FCMC 179 / 2018

[2018] HKFC 81

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES

NUMBER 179 OF 2018

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BETWEEN
P, JM Petitioner
and
I, KY Respondent

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Coram: Her Honour Judge Sharon D. Melloy in Chambers (Not open to public)
Date of Hearing: 29 March 2018
Date of Judgment: 28 May 2018

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J U D G M E N T
(Maintenance Pending Suit/Interim Maintenance)

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Introduction

1. This is an application by a Respondent wife for maintenance pending suit pursuant to section 3 of the Matrimonial Proceedings and Property Ordinance Cap 192 (MPPO) and for interim maintenance for the only child of the family, a baby boy E, who was born on the XX September 2016, and is now 20 months old, under section 5 of the same ordinance.

The main issues

2. The only issue to be determined at this stage is how much should the husband pay to the wife for her interim provision and that of E? The husband offered, at the hearing, to undertake to pay for a number of the wife’s expenses and those of E directly. He also made other proposals with respect to a number of the remaining expenses.

3. In summary the husband offered HK$56,103 per month (inclusive of undertakings) plus a small lump sum of HK$23,000 per month in total for both the wife and E. The wife for her part, originally sought HK$95,905 per month i.e. HK$58,437 per month for herself and HK$37,468 per month for E. She also asks that this amount be backdated to January 2018, which is when she issued her application. It is of note that in the wife’s original Form E, dated the 27 February 2018 (i.e. after the date of her application) that she said that her total expenses for both herself and E amounted to HK$43,480 per month. This did not include rent. However, many of the other expenses should not have changed. For the avoidance of doubt her Form E states as follows:

Part 4 Current Monthly Expenses

4.1 General

Item Amount
Rent HK$ 0.00
Mortgage instalments HK$ 0.00
Utilities (electricity, gas, rates, telephone & water) HK$ 3,000.00
Management fees HK$ 0.00
Food HK$ 5,000.00
Household expenses HK$ 3,000.00
Car expenses HK$ 0.00
Insurance premia HK$ 0.00
Domestic helper(s) HK$ 0.00
Other (specify) HK$ 0.00
Total monthly household expenses HK$ 11,000.00

4.2 Personal

Item Amount
Meals out of home HK$ 7,000.00
Transport HK$ 3,000.00
Clothing / Shoes HK$ 2,000.00
Personal grooming (including haircut and cosmetics) HK$ 4,800.00
Entertainment / presents HK$ 500.00
Holiday HK$ 2,000.00
Medical / Dental HK$ 500.00
Tax HK$ 0.00
Insurance premia HK$ 350.00
Interim maintenance (including rent, utilities and maintenance for the child and the Respondent) HK$ 0.00
Contribution to parents HK$ 4,000.00
Dependent family members HK$ 0.00
Other (specify) HK$ 0.00
Total monthly personal expenses HK$ 24,150.00

4.3 Children

Item Amount
School fees HK$ 0.00
Extra tuition fees HK$ 0.00
School books and stationery HK$ 0.00
Transport to school (including school bus) HK$ 0.00
Medical / Dental HK$ 1,770.00
Extra Curricular Activities HK$ 500.00
Entertainment / presents HK$ 1,000.00
Holiday HK$ 1,000.00
Clothing / Shoes HK$ 1,500.00
Insurance premia HK$ 0.00
Lunches and pocket money HK$ 0.00
Other Transport HK$ 2,560.00
Child-minding fees HK$ 0.00
Uniform HK$ 0.00
Other (specify) HK$ 0.00
Total monthly expenses for children
HK$ 8,330.00
Total monthly Expenses (4.1+4.2+4.3) HK$ 43,480.00

In her affirmation dated the 24 January 2018 however she said that she needed HK$95,905 per month broken down as follows:

39. Monthly Expenses

1. E $19,798
2. T $40,767
3. Accommodation for E and T $29,900
4. Domestic Helper $5,440
Total: $95,905

Unfortunately, the breakdown of expenses did not follow the Form E format and therefore it was a little difficult to follow. It is of note however that the estimate for accommodation was based on a rental of HK$26,000 per month.

The wife’s summons

4. In the wife’s summons dated the 25 January 2018 she further sets out her claim as follows:

2. The Petitioner do pay the Respondent interim maintenance pending suit a total sum of HK$95,905 per month being as to HK$58,437 for the Respondent and as to HK$37,468 for E payable in advance on the 4th day of each and every calendar month commencing from 4th February 2018 until further Order;

3. The Petitioner do reimburse and pay the Respondent HK$95,905 being interim maintenance for the Respondent and E for the month of January 2018;

Background

5. The parties married on the XX July 2016 having cohabited from early 2013 and they separated on the 25 December 2017, when the wife moved out of the matrimonial home with E. This was then a relationship of approximately 5 years and a marriage of just under 18 months. The husband filed a divorce petition on the 4 January 2018, shortly after the wife moved out, based on mild unreasonable behaviour particulars. Notwithstanding that the petition was originally defended. On the 29 March 2018, at this MPS/interim maintenance hearing, the parties sensibly agreed that the particulars should be amended to a milder form, the intention being that the divorce itself should proceed on an undefended basis. I would strongly suggest that the parties ensure that this is done before they return to court on the 25 July 2018. As I have said the parties have one child E who is now 20 months old and a Children’s Dispute Resolution hearing is scheduled for the 17 August 2018. There have been some initial difficulties over access, but that now appears to have settled down and the husband is currently seeing E on a regular basis.

6. The Petitioner husband is a 39 year old banker and the wife is presently a 32 year old full time housewife. She previously worked in sales, but she gave up work prior to conceiving E. E was born on the XX September 2016.

The law

Maintenance pending suit

7. 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.

8. Counsel for the husband has also referred me 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.

9. 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 E?

10. In essence the wife’s case is that the husband should pay what she now 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 has paid her nothing since she moved out of the matrimonial home and that she has survived to date by relying on her savings. Her family have also assisted her and initially she moved in with her mother, who...

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