Sslt v Smfc

FCMC 11056 / 2017

[2019] HKFC 250

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES

NUMBER 11056 OF 2017

________________________

________________________

________________________

J U D G M E N T
(Ancillary Relief)

________________________

1. This is a trial on ancillary relief upon the divorce of the parties.

The Divorce Petition

2. The parties were married in April 2010. They have 2 children. The elder one is a daughter whom I refer to in this judgment as “D”. She was born in February 2011 and is now 8 years old. The younger one is a son “G”, born in September 2014, and is nearly 5 years old.

3. Sadly, the parties’ relationship lasted for 6 years only; they separated in the end of July 2016. Subsequently, the wife petitioned for divorce on 25 August 2017 on the ground of one-year’s separation with the consent of the husband.

4. In due course, the decree nisi was granted on 10 January 2018.

5. On 26 February 2018, by consent, the joint custody and joint care and control of the two children of the family was granted to the parties. The current arrangements are that the children reside with their mother with generous access, including overnight access of up to 2 to 3 nights during the week on an ad hoc basis, to the father. On the top of that, the children stay with each parent on alternate weekends and the summer and school holidays are shared equally between the parties.

Parties’ Background

6. The wife is of Chinese descent and a British citizen by birth. Although she was born in London, her family has roots in Hong Kong. Her parents brought her back to Hong Kong at the age of 2 or 3 years old and she spent her childhood years and attended an international school here. When she was about 12 years old her parents brought her and her siblings back to UK for good. In 2009 her parents relocated back to Hong Kong and are now currently living here. The wife continued to live in UK until December 2010 when she and the husband decided to try their fortune in Hong Kong.

7. The wife is currently 43 years old and is highly educated. She was educated in UK and graduated in 1996 with a bachelor’s degree in pharmacy. She then worked as a locum pharmacist in some community pharmacies until 1999 when she returned to full-time study and was awarded a PhD degree in Pharmacognosy in May 2003. Since then the wife worked as a locum pharmacist at various hospitals and pharmacies. In August 2009 she secured a position as a Senior Pharmacist (Clinical Governance Pharmacist) at a National Health Service (NHS) hospital. It was a full-time permanent job with attractive / comprehensive benefits including professional training and pensions. However, for the reason that she had to return to Hong Kong, she just stayed in this position for a short period of time.

8. The husband is from an American Chinese family. He is also 43 years old. He was born in Seattle and educated in an Ivy League university with a Bachelor of Science degree in Engineering. Since then he has been working in the finance and IT industries. His first job was in New York. He worked there from 1997 to 1999. In July 1999 he went to work in London and subsequently acquired his British citizenship. (Sentence Redacted) He has also become a Hong Kong permanent resident.

9. The parties met in London in April 2009 when both were 33 years old. Their relationship quickly developed into an intimate one. Just in a year’s time, on (redacted) April 2010, the husband proposed to the wife and soon thereafter on (redacted) April 2010, they got married in Seattle. It is common ground that the promptness of their action was due to the fact that at that time the husband’s mother was terminally ill. It was the mother’s dying wish to see his son get married. They were able to get married just a few days before the mother’s demise.

10. Shortly after the marriage the wife found herself pregnant with D. This was a planned pregnancy. Meanwhile, the husband was able to secure a job in Hong Kong. The parties therefore decided to come to Hong Kong, which they did in December 2010. Initially, the new family stayed with the wife’s parents rent-free at their mansion house on the Peak. The house has a separate wing, comprising its own separate entrance, living room, dining room, kitchen, 2 bedrooms and 2 bathrooms, for the parties.

11. In July 2012 the parties left the mansion house and moved into a 792 ft² large, 3-bedroom leased apartment at the Florient Rise of Kowloon. The husband said he insisted to move out because he was unhappy for not being able to live as a nuclear family. Meanwhile, G was born in September 2014. Sadly, the Florient Rise was their last home. On 1 July 2016, the husband moved to another leased apartment at the Harbour Green on his own, signifying the breakdown of the marriage. Shortly afterwards, the wife and the 2 children also moved to another leased apartment at Grand Austin. Upon the expiry of the lease, the wife and the 2 children moved to another leased apartment at Island Harbourview in July 2018 at a rental of $34,000 per month and has since been living there. She is taking care of the children for the greater part of their time with the assistance of a domestic helper.

12. The husband is living in an apartment at the Harbour Green, also rented. He has been making a voluntary maintenance contribution of $40,000 per month to the wife.

13. At the middle of the trial, the husband was dismissed by his employer by reason of redundancy, effective on 30 November 2018. He is now working for a bank on a 6-month contract.

14. The children are spending their time with their parents according to the consent order of 26 February 2018.

Parties’ Open Proposals

The Wife’s Open Proposal

15. The wife seeks the following:

1. Equal division of the parties’ assets, including the full value of their pre-marital and post-separation assets.

2. Maintenance of $22,000 for each child payable by the husband.

3. The husband should continue to pay for the children’s school fees and provide for their health care insurance.

4. Spousal maintenance of $32,500 per month for a period of 7 years, or a capitalized lump sum of $2,730,000 ($32,500 X 84 months) to facilitate a clean break.

The Husband’s Open Proposal

16. The husband has revised his proposal on 19 December 2018 after he was made redundant in November 2018. His current proposal is:

1. The parties’ respective pre-marital assets should be ring-fenced and retained solely by each party.

2. The husband’s bonus that was accrued post-separation should also be excluded from division for being non-matrimonial.

3. After the assets in (1) and (2) have been excluded, the matrimonial assets are to be divided equally.

4. With regards to the children, he proposes that, for the duration that his severance payment is intended to cover (ie until May 2019) he agrees to pay:

(a) $3,710 per month to each child for their general expenses;

(b) $7,500 per month per child as contribution towards their rent until they no longer reside with the wife, or the wife no longer pays rent, or until further order.

5. If the husband successfully secures employment with compensation commensurate to what he previously received, he would continue to pay the maintenance as para 4(a) and (b) on the same terms. He would also include the children on any insurance he may receive through his future employment.

6. The husband also agrees to pay the agreed costs, after reasonable notice and the provision of documentary evidence, of the children’s schooling expenses, and the agreed costs of extra-curricular activities until July 2021.

7. As from 1 August 2021, regardless of whether the wife has secured part-time or full-time work, the wife should contribute 30% of the agreed costs of the children’s schooling expenses and agreed costs of the children’s extra-curricular activities.

8. If the husband is unable to secure employment with compensation commensurate to what he previously received, from 1 July 2019 he would cease paying any maintenance for the children. He also proposes that in such a scenario, the parties should share the agreed costs of the children’s schooling expenses and extra-curricular activities equally.

9. In any event, each party is to bear their respective holiday expenses when travelling with the children.

10. Finally, there is no spousal maintenance payable by the husband.

17. It is not necessary for me to go into the parties’ open proposal in any detail. The only observation I have is that the husband’s proposal is seemingly unattractive in that it is unnecessarily complicated and lacks certainty. It is uncertain as it depends on a number of contingencies; as such, it is a good recipe for continued litigation.

Issues in Dispute

18. As in any ancillary relief proceedings where division of assets is involved, the most problematic part is always on whether there are any factors that warrant a departure from equal division. The following issues have been strenuously contested:

1. Whether the parties’ non-matrimonial assets should be included in the pot for division?

2. Whether the wife should be given ‘compensation for relationship-generated disadvantage’?

3. Whether the wife’s family as a financial resource should be taken into account and if the answer is in the positive, what is the weight to be given to this factor?

4. Whether the wife would receive any inheritance from her parents in the future?

19....