Tmla v Whw

CourtFamily Court (Hong Kong)
Judgment Date24 Feb 2016
Judgement NumberFCMC1096/2014
SubjectMatrimonial Causes
FCMC1096/2014 TMLA v. WHW

FCMC 1096 / 2014

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES NO. 1096 OF 2014

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BETWEEN

TMLA Petitioner

and

WHW Respondent

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Coram: Deputy District Judge G. Own in Chambers (Not Open to Public)
Dates of Hearing: 16 and 17 September 2015
Date of Written Closing Submission: 30 September 2015
Date of Judgment: 24 February 2016

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

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Introduction

1. The Petitioner is the Wife (“Wife”) and the Respondent is the Husband (“Husband”).

2. On the first day of trial, parties through their respective lawyers were able to compromise on the child’s monthly maintenance. The Husband agreed to pay to the Wife periodical payments for the child of the family, a girl presently aged 7, at the rate of HK$13,000 a month on or before 3 October 2015 and thereafter on or before the 3rd day of each and every succeeding month until maximum term or further order.

3. The Minute of Consent Order was signed on the second day of trial which superseded and discharged the interim maintenance order dated 8 October 2012 made under the previous divorce proceedings of FCMC No.10298 of 2012. The Minute of Consent Order was approved by the Court and the Consent Order was granted accordingly.

4. Thus, the remaining issue to be tried is the parties’ respective ancillary reliefs against each other.

Background

5. The parties were married in October 2004 in Hong Kong. There is one child born out of the marriage, a girl, who is at the age of 7 at the commencement of this trial. Divorce proceedings were first commenced by the Wife relying upon ‘Unreasonable Behaviour” under FCMC No.10298 of 2012.

6. On 16 August 2013, the learned Deputy Judge KK Pang, after a 4-day trial in FCMC No.10298 of 2012, granted a joint custody order of the daughter with care and control to the Petitioner and defined access to the Respondent.

7. On 27 January 2014 these proceedings were commenced relying on the fact of “Consent One Year” in substitution for the earlier proceedings under FCMC No.10298 of 2012.

8. Decree Nisi was granted on 30 October 2014 in these proceedings whereupon the Petition under FCMC No.10298 of 2012 was dismissed save and except the said custody and access order dated 16 August 2013 stands.

9. The Husband was aged 46. He works as Business Coordination Manager with a leading bank in Hong Kong. The Wife was aged 42. She works as a Legal & Compliance Manageress in the private sector.

The Agreed Facts

10. There is only one property in question, namely, the matrimonial home (“MH”) situated at Tseung Kwan O, New Territories, Hong Kong of which the parties accepted the valuation by the single joint expert CS Surveyors Limited to be 7 million. This MH is a 2-bedroom unit purchased in November 2004 under the sole name of the Husband at 2.66 million and mortgaged to DBS Bank (Hong Kong) Limited. In December 2007, the Husband redeemed the mortgage and the Charge was discharged on 14 December 2007. As Assignment was then executed by the Husband and the Wife on 19 December 2007 (that is, 5 days after the Discharge) as Joint Tenants at a consideration of 3.6 million holding the MH. The Husband has in law and by conduct assigned and transferred half of his interests in the MH to the Wife. A Notice of Severance dated 26 March 2013 was registered with the Land Registry against the MH by virtue of which the joint ownership was severed to a co-ownership as tenants in common in equal shares.

11. The Husband paid for the purchase and subsequent redemption of the MH. The Wife agreed that about 74% of the moneys for the purchase and redemption of the MH came from the Husband’s pre-marital assets.

12. In July 2012, the Wife left the MH bringing along with her the daughter and since then lived with her maiden family in a property in Wanchai, Hong Kong (“Wanchai Property”). The MH was then occupied by the Husband alone until now.

The Issues Involved

13. There is not much dispute between the parties over the Summaries of Assets and Liabilities at Part 2 of their respective latest Form Es, Wife’s at A:151 and Husband’s at A:172 save and exceptthe issues set forth below and some updating as to figures.

14. The issues are summarised as follows :-

(a) Whether the Wife was in possession of 300 Taiwanese commemorative 100 dollar bank notes (value agreed by the parties at HK$154,800) which should be accounted for by the Wife ?

(b) Parties’ increased monthly contributions made to their respective parents after their separation in July 2012;

(c) The Wife’s alleged indebtedness to her mother at HK$200,750 and to her brother at HK$200,000;

(d) The Wife’s alleged indebtedness to her mother of HK$14,360 being money contributed to a holiday trip of herself and the daughter which remain outstanding and unpaid;

(e) The Wife’s alleged reasons for the diminution in value of her valuable items from HK$150,000 in her 1st Form E (A:23) down to HK$50,000 in the 3rd Form E (A:147).

(f) Whether the Husband’s withdrawals of GBP 5,000 and USD 5,000 be ‘added back’ as part of his assets ? and

(g) Parties’ respective MPFs/ORSOs.

15. During the Husband’s evidence in chief on the 2nd day of trial, he agreed to ‘add back’ a total sum of HK$400,000 (being HK$100,000, HK$100,000, HK$100,000, HK$50,000 and HK$50,000) which he transferred out between July and September 2012 from his HSBC bank account to his parents as gifts (A:200) into the pool of family assets.

The Husband’s Open Proposals

16. The Husband made it open that he wished to continue staying in the MH and would like to purchase the Wife’s share in the MH. Given the undisputed fact that around 74% of the moneys for purchase of the MH came from his pre-marital assets, he proposed a 5% departure from equal sharing to his favour in respect of his interests in the MH that is to say, he has 55% share and the Wife gets the remainder of 45% share.

17. As to the other undisputed assets of the parties, and also those ‘add back’ sought by him against the Wife under the issues to be resolved, the Husband’s stance was that they should also be shared by the same ratio of 55% to him and 45% to the Wife.

The Wife’s Open Proposals

18. The Wife in her Affidavit dated 4 June 2015 (A:192 - 201) at paragraph 20 (a) proposed the MH be sold at market price within 3 months from the date of the court order and net proceeds thereof be equally shared between the parties. All the other assets of the parties also be shared equally. That is, adopting an overall 50:50 equal sharing ratio.

The Law on Ancillary Relief

19. 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.“

20. The governing principles in relation to the distribution of the family assets in dissolution of marriage are set out in section 7 of the Matrimonial Proceedings and Property Ordinance, Cap. 192, (“section 7 factors”) which states as follows:

(1) It shall be the duty of the court in deciding whether to exercise its powers under section 4, 6 or 6A in relation to a party to the marriage and, if so, in what manner, to have regard to the conduct of the parties and all the circumstances of the case including the following matters, that is to say-

(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...

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