W v C

CourtFamily Court (Hong Kong)
Judgment Date11 Aug 2014
Judgement NumberFCMC2201/2014
SubjectMatrimonial Causes
FCMC2201/2014 W v. C

FCMC 2201 / 2014

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES

NUMBER 2201 OF 2014

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BETWEEN

W Petitioner

and

C Respondent

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Coram: Deputy District Judge PANG in Chambers (Not Open to Public)

Date of Hearing : 25 July 2014

Date of Judgment : 11 August 2014

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

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The wife’s application

1. This is hearing of the petitioner wife (hereinafter called “W”)’s summons dated 8 May 2014 for maintenance pending suit (hereinafter called “MPS”) in the sum of HKD46,000 per month from date of the petition and for provision of legal costs in the sum of HKD35,000 per month until the hearing of the Financial Dispute Resolution (hereinafter called “FDR”) or further order. During today’s hearing, W reduced the amount she asked for her monthly maintenance from HKD46,000 to HKD38,600 per month. The respondent husband (hereinafter called “H”) has been paying the sum of $10,000 per month pursuant to an Order dated 12 May 2014, pending the outcome of this application. His open offer is that he is prepared to pay W the sum of HKD12,000 per month as MPS. He considered that W’s application for legal costs provision should be refused since she has failed to bring herself within the test laid down by the English Court of Appeal decision in Currey v Currey [2007] 1 FLR 946.

Background

2. H (now aged 67) and W (now aged 61) were married in 1971. There are 6 children out of this marriage (5 daughters and 1 son) who are all adults and self-supporting.

3. The parties started a goldsmith business in 1970s.

4. W became a full-time housewife after the birth of Helen, the 2nd daughter, in about 1976.

5. It is undisputed that H set up another family with a Madam Szeto in about early 1980s and has 4 children born to this extra-marital relationship. H said this was an open relationship of which W was aware from as early as 1983. W contends she did not know about H’s second family until shortly after the parties immigrated to Vancouver.

6. The parties together with the 6 children immigrated to Vancouver in about 1989. H returned to Hong Kong to carry on the goldsmith business shortly afterwards whilst W and the children stayed in Vancouver.

7. H would visit the family in Vancouver during holidays. H said the parties have been living in separate household since early 1990s as and when H returned to Hong Kong while W led a separate life in Vancouver. He further said there was a mutual understanding between the parties that their marital relationship was over but they would remain friendly for the sake of the children, which is disputed by W whose case is that there was no separation until shortly before she filed the petition for divorce.

8. After a few years, one after the other, Flora, the eldest daughter, and Ah Lung, the eldest son, returned from Vancouver to join H’s goldsmith business in Hong Kong.

9. H’s business has flourished and he has made a big success of his investments in landed properties in Hong Kong. W estimates that as of now, he has assets either under his name or other nominees up to at least HKD100 million.

10. W petitioned for divorce in February 2014 initially on the basis of unreasonable behaviour, which was subsequently amended to one year separation with consent.

Legal Principles

11. W’s application is governed by section 3 of the Matrimonial Proceedings and Property Ordinance (Cap. 192) (the “MPPO”).

12. The court has a wide discretion in the matter, subject to the result being reasonable. In TL v ML & Ors (Ancillary Relief: Claim Against Assets of Extended Family) [2006] 1 FLR 1263, Deputy High Court Judge Mostyn QC (as he then was) stated, at 1289:-

“The sole criterion to be applied in determining the application is ‘reasonableness’ (s 22 of the Matrimonial Causes Act 1973), which, to my mind, is synonymous with ‘fairness’.”

13. The court will consider all factors that may influence the outcome of the application so as to make such order as it regards reasonable in all circumstances of the case. In C v F [2006] HKFLR 41, HHJ Bruno Chan stated at paragraph [45]:-

Although the sole statutory guideline in considering maintenance pending suit is that the award shall be ‘reasonable’, the court will nevertheless bear in mind all the factors drawn to its attention relating to the marriage and the parties to it and perhaps the two most outstanding matters in every case, as in this one, are the standard of living of the parties, and the ability of the husband to pay.”

Discussion

W’s Reasonable Needs - W’s General Expenses

14. Both parties agree that W has lived a frugal lifestyle and her standard of living is not high despite H being a successful businessman.

15. About W’s resources, she has cash of about HKD30,000 and CAD11,500 in her bank accounts maintained in Hong Kong and Canada respectively.

16. She has two properties under her name, i.e.:-

(i) her residence in Vancouver (hereinafter called “7788 Ash Street”), valued at around HKD3.5 million; and

(ii) a flat in Hong Kong (hereinafter called “9/F Wyler Garden”) which is subject to a mortgage and has a net equity of around HKD2.55 million.

17. W said she owed Flora and Ah Lung, who have helped her with the down payment of 9/F Wyler Garden and have been making contributions to her living expenses and legal costs, loans up to over HKD 2 million.

18. According to her Form E, W needs HKD7,300 per month to keep 7788 Ash Street where she and her three unmarried daughters, namely, Helen, Nancy, the 3rd daughter, and Shirley, the youngest daughter, live in Vancouver. The said expenses of HKD7,300 per month include:-

(a) property tax in the sum of CAD127.06;

(b) management fees in the sum of CAD207.99;

(c) home insurance in the sum of CAD28.00;

(d) home security system fees in the sum of CAD22.40;

(e) utilities in the sum of CAD350.00;

(f) car license fee and insurance in the sum of CAD112.67;

(g) car repairs and fuel in the sum of CAD185.

Total = CAD1,033.12 X 7 ≒ HKD7,231.84

19. H’s position is that as W is residing there with 3 self-supporting daughters, the expenses which is attributable to W should be HKD7,231.84 ÷ 4 ≒ HKD1,800.

20. In my view, W as the registered owner is personally liable to pay the property tax and management fee of the home property. Being the owner and beneficiary, she is also liable to the payment of the home insurance and security system. I consider that W’s expenses on the above items (a), (b) (c) and (d) are necessary and reasonable. For utilities such as electricity, town gas, water, etc. I accept that the adult daughters should chip in for the expenses. In view that W now spends 9 months in Hong Kong, I deduct CAD300 from the said expenses of CAD350. It is curious that car expenses are included here. No explanation has been given as to why this is so. There is no evidence whether W drives in Vancouver. In these circumstances I regard the car expenses should be excluded. Thus, I allow CAD1,033.12 – (300 + 112.67 + 185) = 435.45 x 7.16 ≒ HKD3,100.

21. 9/F Wyler Garden was bought in July 2008 and is let out for rental income in the sum of HKD8,800 per month to cover the mortgage repayment and other expenses totally about HKD7,400 per month.

22. W now spends around 9 months in a year in Hong Kong. When she is in Hong Kong, she lives alone in a small flat (hereinafter called “8H Grand Waterfront”) purchased by Nancy, Janis, the 4th daughter, and Shirley. W said she pays the mortgage repayment, management fees and Government rent of the said flat in the sum of HKD6,431, HKD1,110 and HKD90.75 respectively, totally in the sum of HKD7,631.75 per month for her use of the said flat.

23. This is a property owned by W’s three daughters. It is noted W has failed to adduce any documentary...

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