FCMC 15156 of 2002
IN THE DISTRICT COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
NUMBER 15156 OF 2002
Coram : Her Honour Judge Chu in Chambers
Date of Hearing : 16, 17 & 30 June 2005
Supplemental Submissions for the Petitioner : 6 July 2005
Closing Submissions for the Respondent : 15 July 2005
Date of Handing Down of Judgment : 16 August 2005
J U D G M E N T
1. This is an application by the Respondent (“W”) for ancillary relief against the Petitioner (“H”) for herself and the two children of the family.
2. W has changed her position on several occasions, both before and at the beginning of the trial. On the last day of the trial, and in the Closing Submissions of W’s counsel, Ms Lai, the last proposals of W are now as follows : -
(a) the matrimonial home (“matrimonial home”) be transferred to her subject to present encumbrances.
(b) a sum of $10,000 per month as maintenance for herself.
(c) a sum of $10,000 per month as maintenance for the elder son.
(d) a sum of $5,000 per month for the maintenance of the younger son.
(e) H shall retain the commuted part of his retirement pension for himself.
3. The orders sought by H are as follows : -
(a) The matrimonial home be sold and that the net sale proceeds be divided as to 60% for H and 40% for W.
(b) H will pay $10,000 per month for the maintenance of the two children until they complete full time education.
(c) H is to retain the commuted part of his pension for himself.
4. The parties were married on 7th December 1984 and on about 1st June 2000, the parties’ marital relationship broke down, and they started to lead separate lives and they have been living in separate households, although they have continued to remain under the same roof in the matrimonial home, which they bought in joint names in 1996 (“Matrimonial Home”).
5. In 2002, H issued a divorce petition (FCMC 6000 of 2002) against W based on the parties’ separation since 1st June 2000. W filed an Answer, denying the separation and defending the divorce. Subsequently, on 18th December 2002, H obtained leave to withdraw his petition, and to issue a fresh petition, which was then issued under the present proceedings on 30th December 2002. The fresh petition was again based on the fact that the parties had separated since about 1st June 2000, but this time W did not defend the petition.
6. The parties have two sons, the elder son being born on 21st June 1985, now aged 20 (“elder son”), and the younger son being born on 23rd March 1990, now aged 15 (“younger son”).
7. The elder son has been attending University in Australia since end of 2003, and the younger son is attending secondary school in Hong Kong.
8. The two sons have very much taken the side of their mother, in that there is little communication between them and their father. The younger son will continue to live with W, once the parties start occupying separate accommodation, and when the elder son returns during holidays, he will be staying with his mother and younger brother.
9. A Decree Nisi of divorce was granted to H based on his petition on 27th August 2003. On the same day, custody of the two sons was granted to W with reasonable access to H.
10. On 15th October 2004, there was an interim maintenance order made by which H has to pay interim maintenance of $10,000 per month for the two sons commencing from 1st November 2004 until further order.
11. The matters I will need to consider are set out in s. 7 of the Matrimonial Proceedings and Property Ordinance (“MPPO”) which are 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 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 parties to the welfare of the family, including any contribution made by looking after the home or caring for the family;
(g) in the case of proceedings for divorce or nullity of marriage, the value to either of the parties to the marriage of any benefit (for example, a pension) which, by reason of the dissolution or annulment of the marriage, that party will lose the chance of acquiring.
(2) Without prejudice to subsection (3), it shall be the duty of the court in deciding whether to exercise its powers under section 5, 6 and 6A in relation to a child of the family and, if so, in what manner, to have regard to the circumstances of the case including the following matters, that is to say –
(a) the financial needs of the child;
(b) the income, earning capacity (if any), property and other financial resources of the child;
(c) any physical or mental disability of the child;
(d) the standard of living enjoyed by the family before the breakdown of the marriage;
(e) the manner in which he was being and in which the parties to the marriage expected him to be educated;
and so to exercise those powers as to place the child, so far as it is practicable and, having regard to the considerations mentioned in relation to the parties to the marriage in paragraphs (a) and (b) of subsection (1), just to do so, in the financial position in which the child would have been if the marriage had not broken down and each of those parties had properly discharged his or her financial obligations and responsibilities towards him”.
12. I now turn to consider the s. 7 matters.
13. For the avoidance of doubt, in so far as the matters set out in this judgment differ from the evidence of H or W, this is because I have preferred the evidence of the other party because I consider that the documents produced confirmed my finding of fact and further I have been able to observe the demeanour of the parties.
Duration of the marriage and age of the parties
14. The parties were married on 7th December 1984 and they separated on 1st June 2000. Thus, their marital relationship was about 15 1/2 years. H is now 49 and W is now 43.
The Conduct of the parties
15. W alleges the breakdown of the marriage was directly caused by H’s affairs with other women. W’s counsel, Ms Lai, submits that W had devoted all her youth and the past 16 years on the family and children, that she may not be able to start everything all over again with her age and, by reason of her family and the children, she might already have irretrievably lost her chance in her career pursuit. In W’s oral evidence, she said she discovered that H had an affair in 2001. This was after their separation date. She has also said, under cross examination, that in 1997 they were already starting to have problems in their marriage. However, in the previous proceedings, W filed an Answer on 30th July 2002, denying the marriage had broken down. The alleged adultery was not proved against H, and the Decree Nisi was based on the parties’ separation. Notwithstanding what W says, this is clearly not a case where there has been any “obvious and gross” marital conduct on the part of either party. (see Rayden 17th Edition, paragraph 21.61)
Income / earning capacity which H has or is likely to have in the foreseeable future
16. H is a civil servant currently earning a basic salary of HK$53,765 per month. He receives a housing allowance under the Home Financing Scheme $20,940 per month and other allowances of about $1,500 per month. His present total monthly income is about HK$76,205 per month, but when his housing allowance ceases his income will be reduced to about HK$55,265 per month.
17. H’s prescribed normal retirement age is 55 and therefore he will be retiring on 30th November 2010, in about 5 years time. According to a letter dated 26th May 2005 from the Treasury, assuming H would continue his service at his present rank and that he would commute 50% of his pension benefits into a pension gratuity, the pension payable to him will be, calculated at the present price level would be : -
(i) commuted pension gratuity $3,346,000.
(ii) reduced (50%) pension of $239,000 per annum.
18. H joined the government in 1975 and by the time he retires in November 2010, he will have worked for the government for approximately 35 years.
19. H’s housing allowance under the Home Finance Scheme will cease on 30th September 2005 or earlier upon the matrimonial home being sold. Thereafter, he will not be entitled to claim any housing allowance.
Financial needs, obligations and responsibilities which H has or is likely to have in the foreseeable future
20. H says that in the event that the Matrimonial Home is sold or transferred to W, he will no longer be entitled to apply for any benefits under the Home Financing Scheme nor can he apply for government quarters. He will have to rent a privately owned flat to reside in. He says that a small flat of 450 sq ft to 500 sq ft in Happy Valley will cost HK$8,000 to HK$10,000 per month, including management fees. At the moment, H has to pay a total of about HK$32,903 per month towards his mortgage and...