FCMC 6900 of 2002
IN THE DISTRICT COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
NUMBER 6900 OF 2002
Coram : Her Honour Judge Chu in Chambers
Date of Hearing : 1, 2, 3 June 2004 & 1, 2 November 2004
Date of Respondent's Written Closing Submission :19 November 2004
Date of Petitioner's Written Closing Submission : 3 December 2004
Date of Handing Down of Judgment : 7 January 2005
J U D G M E N T
1. This is an application for ancillary relief.
2. The parties were married on 19th January 1968. There are three children of the family namely, a son born on 21st November 1968, now 34 (“the elder son”), a daughter born on 6th February 1975, now 29 and a son born on 11th July 1977, now 27 (“the younger son”). All three children are self supporting. The elder two children are married and live separately from the Respondent (“W”). W presently resides in the former matrimonial home with the younger son.
3. The Petitioner (“H”) claimed that on about 9th October 2000 when he returned from Mainland China, he was not allowed by W to enter the former matrimonial home and since then the parties have been living separate and apart.
4. Subsequently on 24th June 2002, H issued a divorce petition based on W’s unreasonable behaviour. The petition was received by W on 27th June 2002. In the petition, H claimed for a transfer of property order in respect of the former matrimonial home, maintenance pending suit, periodical payments and lump sum payment.
5. Although W entered an acknowledgement of service indicating she intended to defend the suit, subsequently, no answer was filed and the divorce proceeded on an undefended basis.
6. A decree nisi was granted to H based on W’s unreasonable behaviour on 24th February 2003.
7. The question of ancillary relief was first heard on 1st, 2nd & 3rd June 2004 and as there was not sufficient time, it was adjourned part heard to 1st and 2nd November. During the first part of the hearing, as it transpired that W might have transferred various funds to the younger son from 28th June 2002 to 27th January 2003, H issued a notice of application on 2nd September 2004 to set aside the dispositions by W.
8. H was a seaman from 8th September 1964 until he retired in October 1998. Due to the nature of his occupation, the parties spent more time apart than together during the marriage. H was already a seaman at the time of the parties’ marriage and therefore W had full knowledge of H’s job nature.
9. After H’s retirement in October 1998, he resided with W and the younger son in the former matrimonial home. But the relationship between the parties was poor and eventually led to H not being allowed entry to the former matrimonial home on about 9th October 2000.
Acquisition of the matrimonial home
10. The former matrimonial home at ------------- (“the Property”) is registered in the sole name of W. H alleged this was due to practical reason as he was frequently absent from Hong Kong and therefore matters relating to the Property would be more conveniently dealt with by W. H claimed that it was a common intention between the parties that although the Property was registered under the sole name of W he has beneficial interest in it as the purchase price was solely paid by him.
11. W claimed that she purchased the Property on 24th November 1977 for a sum of $73,800 and the downpayment in the sum of $17,164 was paid by two instalments and for each instalment she said she borrowed money from her good friend. She said she later repaid the money to her friend from her own savings. The balance of the purchase price of $56,636 was obtained by way of a mortgage from Hung Kai Finance Co Ltd and the monthly mortgage instalment payment was about HK$848 each. W claimed in her affirmation of means of 11th April 2003 that she paid “each and every single instalment until the said mortgage was discharged and fully repaid in about 1986”.
12. W denied that there was any common intention between H and her that he would have any interest in the Property. She claimed that H had not contributed any sums in the purchase money of the Property and that the mortgage loan was paid off by her from her savings. She said her income, from about 1977, was about $1,200 per month and it gradually increased to about $1,500 per month in 1986. She claimed that in about 1987 after she had paid off the mortgage loan H requested her to transfer half of her interest in the Property to him so that he could sell it and use the money to go back to live in China for good. She said she rejected this request.
Work History of W
13. W claimed that after she married H she found out that he was heavily in debt in the sum of about HK$10,000 which was a lot of money at the time. She then looked for jobs and eventually found one when she was about four months pregnant with her first child. She worked as a packaging worker and earned about $300 per month. After giving birth to the elder son she worked for a textile factory for several months and earned about $1,000 per month. She was then hospitalised due to lung problems. She claimed she did not stop working except for the periods for giving birth to her children until about end of 2000 when she retired and ceased working totally. Before she retired at about end of 2000 she said she was earning $2,000 per month.
14. H admitted that at the time of marriage he did have some debts to pay but they were debts incurred for payment of his father's medical and funeral expenses. He said the sums were in fact borrowed by his mother and as the son, he naturally shouldered the responsibility of repayment and such repayment was from his own savings and not from W’s earnings.
15. H denied that W was working throughout the years of the marriage. He claimed that before the marriage W worked in a textile factory but because of lung disease she stopped work shortly shortly after marriage. After giving birth to the elder son, her health condition deteriorated and at one point she was hospitalised for about six months due to tuberculosis. Thereafter she would work part time at home. H said she only started to work for a laundry after the parties’ daughter attended secondary school and her salary should be no more than $1,000 per month. The elder son had attended Court to give evidence and according to him, W started to work in the laundry in 1996, when the younger son finished secondary school. He said she earned about $1,000 per month. The elder son’s evidence tends to support what H had said I also take into account that W had to look after the children almost single handedly and therefore she could not have worked full time when the children were young.
Work History of H
16. H said he was the main breadwinner of the family and he made arrangements for his employer to pay almost the whole of his monthly salary to W when H was at sea.
17. H produced a copy of his seaman’s Discharge Book issued on 2nd November 1965 which contained a record of his employment history from 8th September 1964 until 27th October 1998 when he retired (“WKT–11”). H extracted the dates of his employment at sea and produced a schedule (“WKT–12”) in his 2nd Affirmation of Means.
18. From the Schedule and the Disclose Book, soon after marriage, namely 13th May 1968 until his retirement in October 1998, H was employed approximately 280 months and 15 days out of a total of about 30 1/2 years (about 366 months), not taking into account what H had said that there was one voyage lasting about 12 months missing from the discharge book. This means H was working at least 70% of the time during the marriage until October 1998. His salary started with HK$800 in 1968 and ended with HK$16,250 before his retirement. H said he was also able to make small sums on the ship when at sea which he would keep and use for his own spending.
Monetary Contributions by H
19. H said that throughout the marriage he had contributed about 90% or more of his income which was paid direct to W to maintain the family until about 1995 when he said that W had pocketed money which was meant for his mother. H produced “Allotment Notes” as proof that the majority of this salary was paid direct to W by his employees.
20. Before 1989, H was asking W to pay $200 odd per month to his mother. In about 1989, H said he had asked W to effect auto payment of about $1,000 per month to his mother who was living separately from the parties. After H’s mother died, H returned to Hong Kong and only then he discovered that W had in about 1995 terminated the said auto payment without his knowledge. He was disappointed at what W did and accused her of having pocketed the money which she should use to maintain his mother. W denied this and said she paid H’s mother $217 each month initially by autopay into the latter’s account and later by depositing until about 1994 when W was told H’s mother’s account was closed.
21. Anyway, after H’s mother death in about 1996, H said although H continued to ask his employer to pay 90% of his monthly salary of $16,250 per month into W’s account, he said he told W to keep only HK$3,250 per month and to deposit the balance of the sum of $13,000 into his own account. He told her that if the monthly amount of $3,250 was not sufficient for the household maintenance, she could then use the parties’ savings.
22. In June 1997 H said his then salary was $16,250 per month. H said that W told him that the younger son was going to apply for admission to university and she needed money to finance the education. H said he arranged for his employer to pay to W three months’ salary. Subsequently he found out that the younger son’s...