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Yky v Wsm

Judgment Cited authorities 7 Cited in Precedent Map Related
Vincent
Judgment Date07 December 2018
Neutral Citation[2018] HKFC 224
Year2018
Judgement NumberFCMC9167/2017
Subject MatterMatrimonial Causes
CourtFamily Court (Hong Kong)
FCMC9167/2017 YKY v. WSM

FCMC 9167/2017

[2018] HKFC 224

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 9167 OF 2017

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BETWEEN
YKY Petitioner
and
WSM Respondent

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Before : Deputy District Judge Doris To in Chambers
Date of Hearing : 8 November 2018
Date of Decision : 7 December 2018

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Decision
(Decree Absolute)

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1. This is the hearing of the Respondent/Husband (“H”)’s application by Summons dated 21 March 2018 pursuant to section 17(2)(a) of the Matrimonial Causes Ordinance (Cap. 179) (“MCO”)for leave to have the decree nisi granted in favour of the Petitioner/Wife (“W”) on 8 November 2017 be made absolute.

Core Issue & Relevant Law

2. As a starting point, H emphasized that unless with good reasons, the decree should be made absolute within a reasonable time without delay. He referred to the public policy consideration for exercising the judicial discretion to grant a divorce, discussed by Viscount Simon LC in Blunt v Blunt [1943] AC 517 at 525:-

“…the interest of the community at large, to be judged by maintaining a true balance between respect for the binding sanctity of marriage and the social considerations which make it contrary to public policy to insist on the maintenance of a union which has utterly broken down.”

3. The said public policy consideration is considered in Manchanda v Manchanda [1995] 2 FLR 590 where Thorpe LJ observed that “the public policy of ensuring a marriage that has been irretrievably broken down be put to an end without further ado must be subject to an equally important public policy of ensuring the spouse who opposes the making of a nisi absolute, must not be prejudiced in terms of financial provisions by way of ancillary relief.”

4. In light of the above policy consideration and the instructive authority of JAH v VH (Decree Absolute) [2013] HKFLR 664, parties have agreed that for the purpose of this hearing, the core issue is whether W can establish real financial prejudice in that there will be a real risk that she will be deprived of her financial entitlement if the decree absolute is granted. In other words, to resist H’s application, W is not required to establish special or exceptional circumstances.

5. By Wickler v Wickler [1998] 2 FLR 326, I shall consider the following questions in exercising my discretion: -

(1) is there a risk real of prejudice to W if the decree nisi is made absolute?

(2) what is the prejudice done to H if the decree is not made absolute? and

(3) whether the prejudice to W, if any, outweighs the prejudice to H.

Relevant Factual Background

6. H (currently 79 years old) and W (currently 81 years old) married in Hong Kong in May 1967. This is indisputably a very long marriage of around 50 years.

7. There were 3 daughters born in the wedlock. They are now respectively aged 50, 44 and 41; all are married and independent.

8. In about 1978, H started the business of manufacturing electric fans (“the Business”).The Business thrived and substantial wealth was accumulated therefrom.

9. In 1984, the entire family emigrated to Canada. The parties acquired a large number of properties in Canada using the substantial profits generated from the Business. W stayed in Canada to raise the daughters and to take care of the properties in Canada; H travelled to and from Hong Kong to look after the Business.

10. In about 1994, H started an extra-marital affair with a Thai female who gave birth to a son for H in August 2001(“the Mistress”).

11. In 1996, H purchased a property in Hong Kong which is currently held in the sole name of the Mistress (“Property 1”). H also purchased 7 other Hong Kong properties respectively in 2007, 2010 and 2014 (“Properties 2-7”) which were held by H and the Mistress as joint tenants until they become tenants in common in equal shares pursuant to the Notices of Severance executed on 5 June 2015.

12. On 30 June 2015 (shortly after execution of the said Notices of Severance), H petitioned for divorce under FCMC 8306/2015 based on two-year separation since June 2004 (subsequently amended to December 1993). The Petition was dismissed after trial by HH Judge C.K. Chan on 10 July 2017.

13. On 17 July 2017, W filed a divorce petition based on two-year separation since July 2015. The Petition was undefended. On 8 November 2017, a decree nisi was pronounced in W’s favour.

14. According to W’s Form E filed on 22 September 2017, she had assets of net value of no less than HK$43 million; H had assets of net value of no less than HK$565 million as disclosed in his Form E filed on 4 January 2018.

15. W’s claim for ancillary relief is on-going (“the AR proceedings”). The ownership of Property 1 and Properties 2-7 is currently the subject matter of a preliminary issue trial fixed to be heard in July 2019 (“the TL v ML proceedings”).

W’s Objections

16. W asserted that if decree absolute is granted before the conclusion of AR proceedings, she would suffer the following financial prejudice:-

(a) her right to apply for maintenance pending suit (“MPS”) would be deprived;

(b) her claim for ancillary relief including the right to continue the TL v ML proceedings would be stifled; and

(c) H will delay and/or lose the incentive to proceed expeditiously the matrimonial proceedings once the decree is made absolute, hence putting W at real risk that H would die before the conclusion of the AR proceedings.

Discussion & Analysis

Deprivation of W’sright to apply for MPS

17. It is not in dispute that W will be disentitled from applying for MPS under section 3 of the Matrimonial Proceedings and Property Ordinance (Cap. 192) once the decree absolute is granted. However, H argued that in light of the level of W’s liquid assets (over HK$14 million is in the form of cash deposited in banks), there is no question of any immediate needs for recurring costs of living on the part of W. Hence it is unlikely W would be able to establish any entitlement for MPS. H relied on the following authorities.

18. In HJFG v. KCY [2012] 1 HKLRD 95, Hartmann JA stated: -

“34. By definition, therefore, maintenance pending suit is restricted to payments which constitute “maintenance”, which are reasonable in the circumstances and which will endure for no longer than it takes to determine the divorce litigation. “Maintenance” is a broad concept. I do not seek to define its exact meaning but it seems to me that it must be restricted to those payments necessary to meet the recurring costs of living at whatever standard of living is appropriate. That being the case, no matter how great the wealth of the parties and how unevenly distributed that wealth may be at the time an application for interim maintenance is made, the court has no jurisdiction to make orders which for all practical purposes result in a form of pre-trial capital rebalancing. In the present case, the Judge recognised the long-established approach of looking to the “immediate and reasonable needs” of the wife and son.”

19. Further, as opined by Mr Justice Coleridge in Moore v. Moore [2010] 1 FLR 1413 at §22 :-

“...An order for maintenance pending suit is, as Bodey J observed, “a creature different in form and substance from substantive orders made upon the making of decree nisi”. It is designed to deal with short-term cash flow problems, which arise during divorce proceedings. Its calculation is sometimes somewhat rough and ready, as financial information is frequently in short supply at the early stage of the proceedings. It is nonetheless valid until discharged.”

20. W relied on CWK v YCHS & Anor FCMC 6082/2014 (unrep) (10 December 2015). In that case, the petitioner wife who applied for MPS had a total capital sum of around HK$14 million. When the same aforesaid argument of H was raised by the 1st respondent husband, it was rejected by the Court.

21. In that case, DDJ G Own (as he then was) observed at §39 that since there was no urgent and immediate need of cash for the wife nor was there any shortage of cash for the husband, the focus would fall upon whether it is “reasonable” for granting MPS, rather than the wife’s immediate needs for it or the husband’s ability to pay for it.

22. After considering the fact that there was a long established pattern of payment to the wife by the husband, which ceased in the month following his departure from the wife and the wife’s commencement of the divorce proceedings, the Court stated at §48:-

“In my view, unless there is cogent evidence showing a material change of financial circumstances to the extent affecting the Husband’s ability to continue with what he had so far been paying to the Wife for years, there is no room for the Husband to cease an established pattern of payment simply because a divorce suit was filed against him. Had this been allowed, it is tantamount to set up some form of financial threat or duress to deter a spouse from taking court proceedings. Put it the other way, it is akin to ‘penalise’ the Wife for filing the divorce.”

23. The Court therefore awarded the wife MPS. It was held that in all fairness, which is the guiding principle on MPS applications, the wife should be entitled to the same ‘established pattern of payment’.

24. In the present case, there is also an established pattern of payment by H for W’s maintenance. Although the ruling in the CWK case may give W the legal basis to pursue an application for MPS, the issue in the present context is not on merits of an intended application; it’s about deprivation of the right to do so.

25. The fact before me is that W ever since the petition(s) has not made any application for MPS, not even after H unilaterally and...

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