Ww v Lln Formerly Known As Lsm

CourtFamily Court (Hong Kong)
Judgment Date23 Jul 2019
Neutral Citation[2019] HKFC 188
Judgement NumberFCMC4996/2018
SubjectMatrimonial Causes
FCMC4996/2018 WW v. LLN formerly known as LSM

FCMC 4996/2018

[2019] HKFC 188

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES NO. 4996 OF 2018

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BETWEEN
WW Petitioner
and
LLN Respondent
formerly known as
LSM

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Coram: HH Judge C.K. Chan in Chambers
Mode of Hearing: By way of written submissions
Date of Respondent’s Written Submissions: 13 June 2019
Date of Petitioner’s Written Submissions: 4 July 2019
Date of Handing Down Judgment: 23 July 2019

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

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1. This is a hearing of the respondent wife (“the wife”)’s application for maintenance pending suit (“MPS”) against the petitioner husband (“the husband”).

Parties’ Respective Position

2. In her summons dated 30 January 2019, the wife asked for the following payments from the husband:

(1) MPS for herself in the sum of $120,000 per month commencing from 1 March 2019 until further order of the court;

(2) Litigation funding in the sum of $50,000 per month commencing from 1 March 2019 until further order of the court;

(3) MPS in the lump sum of $1,536,000 being backdated payment for the period from January 2018 to February 2019; and

(4) Costs.

3. The husband’s stance is that he has been paying, and he will continue to pay:

(1) The younger son’s tuition fees and also his pocket money;

(2) The salary of the domestic helper; and

(3) The recurring expenses of the former matrimonial home (which is currently occupied by the wife and the younger son) such as management fee, rates and government rent.

However, he is of the view that there is no ground in awarding MPS to the wife herself and therefore, her application for MPS should be dismissed with costs. In other words, the husband has made no offer for any direct payment to the wife as MPS.

Background

4. The parties were married in 1993. The divorce petition was taken out by the husband in 2018 and therefore, this is a long marriage of about 25 years.

5. Within wedlock, 2 children were born:

(1) The elder son is now aged 25, who is self-supporting and living apart; and

(2) The younger son is now aged 23, who has already completed his first university degree and is now residing with the wife at the former matrimonial home.

According to the wife, the younger son is now enrolled in a part-time Master program in Biology with the University of Hong Kong.

6. The husband issued a petition for divorce on 27 April 2018 based on behaviours, which was disputed by the wife. The parties have now come to an agreement that the divorce petition would be proceeded with on the fact of separation.

7. On 30 January 2019, the wife issued her summons for MPS which was disputed by the husband. At the call-over hearing on 13 March 2019, I gave directions for the MPS application to be dealt with on papers. I now proceed with the adjudication on the wife’s MPS applications after receipt of their documents and written submissions.

Preliminary Points

8. Solicitors for the husband raised 2 preliminary points which I think can be conveniently dealt with first.

9. By reading Ms Yue (counsel for the wife before her Notice to Act in Person being filed on 3 July 2019)’s submissions, she referred to the wife’s applications for MPS under section 3 of the Matrimonial Proceedings and Property Ordinance, Cap. 192 (“MPPO”) and for interim maintenance for the younger son under section 5 of the same Ordinance.

10. It has been rightly pointed out that the wife has only made an application for her own MPS in the summons, but not for interim maintenance for the younger son. Therefore, leaving aside the issue on whether the husband still has a duty to maintain the younger son in view of his age and the fact that he has already completed full time education, the interim maintenance of the younger son is a non-issue, as far as this application is concerned.

11. Moreover, there can be no doubt that the court only has jurisdiction to make a MPS Order beginning not earlier than the date of the presentation of the petition for divorce (which was 27 April 2018 in this case). Therefore, the wife’s application for MPS to be backdated to January 2018 is totally misconceived. I agree that the husband’s argument in this regard must be right.

The Law on MPS

12. The Court’s power to grant a MPS order in favour of a spouse is governed by s.3 of MPPO:

“3. Maintenance pending suit in case of divorce, etc.

…..

the court may order either party to the marriage to make to the other such periodical payments for his or her maintenance and for such term, being a term beginning not earlier than the date of the presentation of the petition or making of the application and ending on the date of the determination of the suit, as the court may think reasonable.”

13. In HJFG v KCY[1], Hartmann JA, at paragraphs 37 and 38 of the judgment, gave a succinct summary of the law in this area by referring to the judgment of Mostyn QC, sitting then as a Deputy Judge of the High Court in England, in TL v ML [2006] 1 FLR 1263, 1289:

“37. The principles that have been emerged over time to guide judges in matters of interim maintenance have been fashioned in the main to ensure fairness. This is well illustrated in the judgment of Nicholas Mostyn QC, sitting then as a Deputy Judge, in TL v ML [2006] 1 FLR 1263, 1289, in which, having looked at earlier authorities, he derived the following principles that speak specifically to fairness or are based on the need to ensure it. For present purposes, it is sufficient to cite the relevant principles without citing the Judge’s reference to the source of those principles:

(a) The sole criterion to be applied in determining the application is “reasonableness”, which is synonymous with “fairness”.

(b) A very important factor in determining fairness is the marital standard of living. This is not to say that the exercise is merely to replicate that standard.

(c) In every maintenance pending suit application there should be a specific maintenance pending suit budget which excludes capital or long-term expenditure, more aptly to be considered on a final hearing. That budget should be examined critically in every case to exclude forensic exaggeration.

(d) Where the affidavit or Form E disclosure by the payer is obviously deficient, the court should not hesitate to make robust assumption about his ability to pay. The court is not confined to the mere say-so of the payer as to the extent of his income or resources. In such a situation, the court should err in favour of the payee.

38. Finally, it is to be noted that in application for interim maintenance, when the amount to be paid is for a limited period only and not all the evidence is necessarily before the court, it is not appropriate, nor indeed in most cases possible, for the court to conduct a detailed investigation into the finances of the parties. While, in order to determine what is or is not reasonable, some analysis is always required, that analysis can be conducted on a “broad-brush” basis.”

14. Therefore, the overriding considerations for such applications are reasonableness and fairness. In order to achieve these objectives, the Court has to balance the reasonable needs of the applicant and the ability to pay of the respondent on an interim basis: LJ v LWHH [2003] 3 HKC 455 at 461D.

15. In undertaking this balancing exercise...

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