FCMC 3255 / 2018
2019 HKFC 42
IN THE DISTRICT COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
NUMBER 3255 OF 2018
||His Honour Judge I Wong in Chambers (Not open to Public)
|Date of Hearing:
||24 January 2019
|Date of Judgment:
||22 February 2019
(Maintenance Pending Suit)
1. This is an application taken out by the petitioner/wife on 21 June 2018 for interim maintenance for her and the child of the family.
2. The parties were married in November 2013; hence this is a short marriage. This fact, however, is not relevant for the purpose of the present application.
3. There is one child of the family, a daughter, born in October 2016. She is now slightly over 2 years old.
4. Since marriage the parties, and later on with their daughter after she was born, had lived in an apartment in Tai Kok Tsui (“the former matrimonial home”) that was purchased in the sole name of the respondent. This was the situation till January 2018 when the petitioner, taking the daughter with her, moved out of the former matrimonial home and returned to her maiden home.
5. On 22 March 2018 the petitioner commenced divorce proceedings on the ground of the respondent’s unreasonable behaviour.
6. On 11 June 2018 I gave an order that the respondent shall pay the petitioner a monthly sum of $2,250 as the child’s interim maintenance. Subsequently, I increased the monthly sum to $4,000, commencing from 1 September 2018 by way of an order on 28 August 2018.
7. I was told by Mr Lau who appeared for the petitioner that the respondent has been in compliance with the interim orders.
8. The petition for divorce is being contested by the respondent. As of now, the decree nisi has not been granted.
Present Situation of the Parties
9. The petitioner, aged 33, was a housewife during the marriage. Before then, she was a clerk in building management business.
10. Since moving out of the former matrimonial home, the petitioner and the daughter have been living in her maiden home. This is a public housing unit currently accommodating 5 persons, namely, the petitioner, the daughter, the petitioner’s mother and her younger sister and brother. The petitioner and the daughter are not approved occupiers of the unit.
11. The petitioner continues to take care of the daughter on a full-time basis and so she does not have any income of her own. She is effectively having the care and control of the daughter. By an order of 7 January 2019, the respondent has been given interim defined access to the daughter pending the submission of a Social Investigation Report by the Director of Social Welfare on the issues of custody and access.
12. As for the respondent, he is living alone in the former matrimonial home which is subject to a mortgage for which the respondent has always been responsible. He is 46 years old, a system analyst by profession, and is earning $26,700 per month.
Parties’ Open Offer
13. There is no doubt that during the marriage the respondent was the sole breadwinner of the family. It is also not in dispute that since the petitioner’s moving out in January 2018, the respondent did not pay any living expenses for the petitioner and the daughter. It was not until the order of 11 June 2018 that he started to make some contribution towards the maintenance of the daughter.
14. The petitioner said she had virtually defrayed all her savings in supporting herself and the daughter. Initially, she sought, in her open offer, a total sum of $13,462.71. At the substantive hearing, Mr Lau, on her behalf, rounded the figure down to $13,400, with $6,000 for herself and the remainder $7,400 for the daughter.
15. As for the respondent, before the hearing he maintained that he could only afford $4,500. During the hearing, Ms Cheng, who appeared for the respondent, conceded that the respondent can afford $5,800.
16. Under section 3 of the Matrimonial Proceedings and Property Ordinance, Cap. 192 (“the MPPO”), 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 presentation of the petition or the making of the application and ending on the date of the determination of the suit, as the court thinks reasonable.
17. The Court of Appeal in HJFG v. KCY  1 HKLRD 95 summarised the established principles,
“33. Jurisdiction to award maintenance pending suit to a spouse is statutory, being governed by the provisions of s.3 of the Matrimonial Proceedings and Property Ordinance, Cap. 192. By that section the court is given a discretion to make an order requiring either party to the marriage to make to the other such periodical payments for his or her ‘maintenance’ as the court thinks ‘reasonable’, subject to the condition that the duration of any such order is limited to the period of what may broadly be called the divorce litigation.
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 re-balancing. In the present case, the judge recognised the long-established approach of looking to the “immediate and reasonable needs” of the wife and son.
35. As to the amount of maintenance pending suit that may be paid, the Ordinance provides only that it must be ‘reasonable’, that is, having regard to the circumstances of the case, that it must be fair.
36. An important factor in determining fairness is a consideration of the marital standard of living. In th`is regard, each case must be considered according to its own circumstances. It is not simply to be assumed that great wealth equates to great extravagance. Some married couples who enjoy great wealth spend with comparative modesty and with a discipline born of discretion, others enjoy consumption on a grand scale.
37. The principles that have 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 High Court judge, in TL v ML and Others (Ancillary Relief: Claim against...