W v W

Court:Family Court (Hong Kong)
Judgement Number:FCMC2348/2002
Judgment Date:05 Nov 2003
FCMC002348A/2002 W v. W

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES

SUIT NO. 2348 OF 2002

_________________

BETWEEN

  W Petitioner
  and  
  W Respondent

_________________

Coram : H.H. Judge Bruno Chan in Chambers

Date of Hearing : 18, 23 – 25 September & 6 October 2003

Date of Judgment : 5 November 2003

_________________

J U D G M E N T

_________________

1. This is the Petitioner Wife’s application for ancillary relief against the Respondent Husband upon the dissolution of their lengthly marriage of almost 30 years. For convenience purpose I shall refer to the parties as Husband and Wife in this judgment.

2. The parties were married in 1973 in United Kingdom when the Husband was 23 and the Wife 20. The Husband was then a college student studying for a degree in Textile Marketing sponsored by his employer, whereas the Wife was then a laboratory technician and later a clerical officer and executive officer at the Department of Health and Social Security until 1977 when their first child, J, was born and thereafter the Wife became a full-time housewife and mother. A second child, D was soon to follow in 1979. Both of them are now over 21 and are self-supporting.

3. Following his graduation, the Husband’s career had been successful working for a large retail electronics company in United Kingdom where he rose to the position of managing director in 1990, and in 1991 he assumed the position of marketing vice-president of an associated company based in Belgium for one year before the family was relocated back to United Kingdom where they had a 5 bedroom house in Sutton Coldfield.

4. In 1995 the Husband was head-hunted to Hong Kong to join a large electrical company as a manager at a salary of initially HK$55,000 per month plus expatriate package including accommodation, bonus, company car, medical and leave allowance as well as provident fund. In 1998 he became managing director and in 2001 his salary was increased to HK$110,000 per month. During his employment in Hong Kong the parties enjoyed a well-to-do lifestyle including accommodation in a 3 bedroom apartment in MacDonnell Road, membership at the Aberdeen Boat Club, holidays in Asia and UK, and frequent dinings in restaurants.

5. When the Wife was first relocated to Hong Kong, she initially volunteered to work in a church bookstore but later became a part-time bookstore assistant in October 1996 until April 2000 when she resigned due to health problem and family commitments. At about this time the parties sold their joint property in Sutton Coldfield, and used the proceeds to finance the purchase of a small flat in London in their joint names, and another flat in Huddersfield, also in their joint names, for their son’s use during his tertiary education.

6. In early 2001 the Husband suddenly asked for a separation and admitted that he had formed a relationship with a younger woman. After discussing the matter with the Wife, he agreed to end the affair and the parties spent some time in United Kingdom and later went together on a holiday in Australia in October 2001. However upon their return to Hong Kong, the Husband again asked for a separation and announced that he had resumed his relationship with the said woman.

7. In November 2001 the Wife moved back to United Kingdom and the following arrangements were made between the parties in respect of their properties : -

(a) The Wife’s interest in the 2 properties in London and Huddersfield were transferred to the Husband, with an outstanding mortgage of approximately 47,000 still on the London property;

(b) A property in York was purchased in the sole name of the Wife as her residence while in UK by means of a loan of 160,000 secured on the Husband’s London property.

8. In addition the Husband gave the Wife a sum of 25,000 for the furnishing of the York property with a promise of a further sum of 5,000 to be paid later. He also started paying her a monthly sum of 1,400 for her maintenance in UK.

9. In March 2002 the Wife returned to Hong Kong and met with the Husband when she was told that there was no chance of a reconciliation. When she was unable to gain entry into their former matrimonial home at MacDonnell Road, she decided that the marriage was at an end and therefore instituted these proceedings by issuing a petition for divorce on 8th March 2002 against the Husband based on his behaviour.

10. In April 2002 the Husband increased his interim maintenance for the Wife to 2,200 per month and the parties began a series of settlement negotiation. At very early stage the parties were able to agree that in principle their assets should be distributed equally between them, but there were major disagreements over the time for payment and the Wife’s needs for continuing monthly maintenance as the Husband proposed that the equal division of all the assets should be a clean break between the parties with the Wife’s share of the cash assets be payable over a period of 4 years, whereas the Wife insisted in immediate payment plus substantial monthly maintenance to continue after the divorce until the Husband’s retirement at 65.

11. The decree nisi of divorce was eventually granted without opposition on 18th March 2003 with the question of ancillary relief adjourned for the parties to file their affidavit of means. Unfortunately in April 2003 the Husband was made redundant by his employer and received compensation of about HK$1.2 million including his provident fund and repatriation allowance. He was also paid 6 months of salary up to October 2003 with rental allowance covered up to February 2004. He eventually conceded that there are insufficient assets between the parties to achieve a proper clean break settlement but that in the light of his loss of employment, the Wife should only be entitled to a nominal maintenance, preserving her right to seek substantial maintenance if and when he finds employment or when his financial position improves.

12. The Wife does not dispute the Husband’s unemployment situation, but believes that he should be able to find further employment soon with his substantial earning capacity, and with the available liquid assets at his disposal, he should pay her monthly maintenance up to the year 2015. With neither party willing to compromise on this issue, the matter therefore sent to trial when both of them gave extensive oral evidence, with the Wife having flown in from UK for this purpose.

The law

13. In deciding on the Wife’s claims for ancillary relief, I am required by S. 7 (1) of Matrimonial Proceedings and Property Ordinance 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 the 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.

The Evidence

14. Before considering the evidence of those matters aforesaid, it would be useful to set out in better details the parties’ capital assets from the Schedule of Properties and Assets annexed to the Wife’s submission and their agreed division : -

A. Properties UK£ 
(i) London flat in Husband’s sole
name at £340,000 with house
contents but less outstanding mortgage 195,480.00
(ii) Huddersfield flat in Husband’s
sole name and free of mortgage 55,000.00
(iii) York flat in Wife’s sole
name and free of mortgage 215,000.00
Sub-total : £465,480.00
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B. Other Investments UK£ 
HSBC (553.00)
HSBC Savings 24,060.00
HSBC Combi 167.00
HSBC Combi ($412.00) 256.00
Midland offshore 7,067.00
Northern Rock 60 24,032.00
Friend Provident 9,849.00
Assurance
Equities 1,056.00
Northern Rock 31,330.00
Investment PEPs 30,792.00
Royal & Sun Alliance 67,670.00
Intertan Pension (old) 132,555.00
Towry 24,415.00
Sub-total : £352,696.00
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C. Termination Package HK$
(i) Pro-rata Bonus for 2003 220,000.00
(ii) Provident Fund 807,395.91
(iii) Extra Payment 330,000.00
(iv) Untaken leave 48,540.00
Less : tax provision (113,631.00)
Sub-total HK$1,292,304.91
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Gross Family Assets = £465,480 + £352,696 +HK$1,292,304.91
less Wife’s legal costs = £915,471
50 / 50 division of Net Family Assets = £457,735
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15. It is proposed by the Wife that to achieve a equal division of the above net family assets, the Wife should retain her York property, and that the Husband should transfer to her the following : -

(...

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