HKFC 21
IN THE DISTRICT COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
NUMBER 747 OF 2018
||His Honour Judge I Wong in Chambers (Not open to Public)
|Date of Hearing:
||27 September 2019
|Date of Judgment:
||14 January 2020
(Maintenance Pending Suit)
1. This is an application taken out by the respondent wife/mother for maintenance pending suit (“MPS”) for herself and the two children of the family.
2. In this judgment, I shall refer to the petitioner as “the father”, the respondent as “the mother”, the elder daughter as “H” and the son as “N”.
3. Both the father and the mother are currently 31 years old.
4. The father is a Mainlander and the mother a local Chinese. They met in Toronto in around 2009 when they were pursuing tertiary education there and started cohabitation in the same year.
5. The father is from a well-to-do family. His father (“the grandfather”) apparently runs a successful fur trading business with offices in both the Mainland and Hong Kong. The grandfather and his wife (“the grandmother”) have been given the right of residence in Hong Kong through the government’s investment entrant scheme. The father, however, is not covered by the scheme because at the time of the application he was already over 18 years old and so has no right to reside in Hong Kong.
6. The parties were married in May 2013 in Hong Kong. It is not in dispute that at the time of the marriage the mother did not finish her education yet and she ceased her education upon marriage. According to the mother, she was persuaded by the grandfather, who flew all his way to Toronto to meet her, to give up her education so as to get married with the father and following that, the young couple could assist the grandfather in the family business. The grandfather further promised to provide capital for them to establish their business in Hong Kong. This is the J & K Limited (“J&K Limited”) that was subsequently established in Hong Kong with both the father and the mother as directors and shareholders. The father denied there was such a meeting or for that matter, any such representation or promise had been given by the grandfather. For the purpose of this application, I do not think this discrepancy is relevant to the issues to be determined by this court.
7. Two children were born during the marriage. The elder daughter “H” was born in June 2014, currently 5 ½ years old, and the younger son “N”, born in April 2016, is nearly 4 years old.
8. Sadly, the marriage did not last long and the parties separated in around September 2016.
9. On 18 January 2018, the father petitioned for divorce on the ground of desertion. The ground was subsequently amended to one of “one-year separation with consent”.
10. Decree nisi was granted on 20 November 2018.
11. On 25 January 2019, following a successful CDR hearing, it was agreed that the joint custody of the children be granted to both parties, with care and control to the mother and reasonable access to the father. The parties are yet to file a consent summons seeking a formal court order to that effect. At the same hearing, the father also agreed to pay an interim maintenance for the children in the sum of $15,000 per month.
12. The mother was not satisfied with the interim sum and took out the present MPS application on 4 February 2019. At the direction hearing of 24 April 2019, with the consent of the father, he was ordered to pay an interim MPS in the sum of $20,000 per month for the benefit of the children (ie $10,000 each).
Parties’ Open Offer
The mother’s open offer
13. The mother initially sought a total sum of $75,534 of which $9,384 was for herself and the remainder of $66,150 for the children. She also sought to have the MPS back-dated to 18 January 2018, the date of the father’s petition.
The Father’s open offer
14. Shortly before the substantive hearing, the father increased the sum by $5,000, making a total of $25,000. This additional sum is towards the interim maintenance of the mother. The court therefore made an order on 27 September 2019 that the father do pay a monthly sum of $5,000 as interim maintenance for the mother, the 1st payment to commence on 1 October 2019.
15. The father also agreed to undertake to pay all the future medical and dental expenses of the children upon production of receipts by the mother. I shall hold the father onto this undertaking.
16. As regards the back-dating of the MPS, the father agreed to have it back-dated but only to have it back-dated to the date of the application, ie 29 January 2019.
The Mother’s Case
17. The mother, taking the children with her, has since August 2016 moved to live with her mother in a public housing unit in Chai Wan. The mother has not been working since January 2017 and has been taking care of the children with the assistance of her mother. She said she had been living on her savings and borrowings from her mother but these resources had exhausted.
18. The mother said during the marriage, the family enjoyed a comfortable living standard. The family lived in a 2,200 ft2 house in Palm Springs of Yuen Long (“the former matrimonial home”) which, said the mother, was a marriage gift from the grandfather. There was another matrimonial home in Shenzhen, a 6,000 ft2 house, for the family when they were staying there; again, it was a marriage gift from the grandfather.
19. As referred to above, both the father and the mother were the shareholders and directors of J&K Limited which, according to the mother, was established by the father’s family and was part of the fur trading business. The arrangement at that time was both of them received a monthly salary of $20,000 each and the total of $40,000 was given to the mother. Apart from that, the family’s living expenses, including insurance premiums and car expenses, etc, were paid by J&K Limited and another family company in the name of SI International Group Limited.
20. Due to the breakdown of the relationship, the mother ceased to be the director of J&K Limited at the end of 2016 and from then onwards, she has had no income. At about the same time in January 2017, the father also failed to pay any living expenses to the mother and the children. The next month the father went further to terminate the mother’s supplementary credit card, thus entirely cutting off all financial resources of the mother. This remains to be the situation till 25 January 2019 when, upon the court’s enquiry, the father agreed to pay a sum of $15,000 for the benefit of the children.
21. During the marriage, the family had the use of 2 vehicles including a 7-seater vehicle with a Mainland license and was able to afford medical and dental treatment at a first class private hospital in Hong Kong. The father from time to time gave her pocket money and bought her luxurious items and jewelleries as gifts. There were also money gifts from the father’s parents; from May 2014 to November 2016, a total of $700,000 were given to her.
The Father’s Case
22. The father continues to live in the former matrimonial home when he is in Hong Kong and as before, he continues to work in the family business.
23. The father admitted that as from March 2017 he ceased giving any living expenses to the mother. This was way before he petitioned for divorce in January 2018.
24. The father does not dispute liability. As I see it, there is no dispute that during the marriage the family was financially dependent upon him and his family business. The father accepted that J&K Limited was established with the financial support of his parents. Indeed, he goes so far as to say that this company and virtually all the assets and business interests held under his name are in fact not his belongings but his parents’. Hence, whilst the father asserted that the former matrimonial home and the matrimonial home in Shenzhen referred to in  above are not as large as the mother described, at the same time he said these properties are not their “matrimonial home” as such because they are in fact his parents’ home and his family were merely allowed to stay there rent-free. That said, without the need to condescend to the minuscule for the present purpose, the standard of living as depicted by the mother in the foregoing paragraphs are largely accepted. The father explained that the family was able to afford a high standard of living was because of the financial support of his parents but such support is non-existent now. The grandfather has not been willing to support him since the breakdown of the marriage. What he now has, as far as financial resource is concerned, is a mere monthly salary of $20,000, and it is only with the borrowings from his parents that the most he could afford is $25,000 per month.
The Legal Principles
25. Under section 3 of the Matrimonial Proceedings and Property Ordinance, Cap. 192 (“the MPPO”), the court may order either...