YJ v. QJ

FCMC 16060 / 2009

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES

NUMBER 16060 OF 2009

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JUDGMENT
(Maintenance Pending Suit)

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Introduction

1.  This is an application by a petitioner wife for maintenance pending suit for herself pursuant to s.3 Matrimonial Proceedings and Property Ordinance Cap. 192 and interim maintenance for the child of the family, a little girl now aged 2 ½ years.  The application for the child is made pursuant to s.5 Matrimonial Proceedings and Property Ordinance Cap. 192.

Background

2.  The parties married in November 2007.  The wife is 31 years of age and she is presently a full time housewife and mother. 

3.  The husband is 47 years of age and he is an Assistant Professor at a university in Hong Kong. He currently earns in the region of HK$93,700 per month, inclusive of a housing allowance. The wife also maintains that he is in receipt of a rental income and other benefits. 

4.  The divorce petition, based on the husband’s unreasonable behaviour, was originally defended.  Thankfully that aspect of the case has at least been compromised. The petition was amended on the 2 July 2010 and is now proceeding on the basis of one year separation with consent. The agreed date of separation is November 2008. The divorce petition was originally filed on the 23 December 2009.

Issues

5.  There is only one issue to be determined namely how much maintenance should the husband pay to the wife for herself and the child of the family on an interim basis?

The law

6.  Applications of this nature are governed by s.3 and 5 Matrimonial Proceedings and Property Ordinance, Cap. 192, which state that the only governing principle is that the court will make such order, as it considers reasonable. Consequently maintenance pending suit applications are approached on a broad-brush basis. A detailed examination of the parties’ means will be examined at a later date at a full ancillary relief hearing if agreement cannot be reached in the meantime.

The parties proposals

7.  The wife contends that she needs approximately HK$39,200 per month for her own expenses and those of the child, plus payment of the rent and other property related expenses, the child’s kindergarten fees and the child’s school bus fees. All in all, the solicitor for the husband says that this amounts to over HK$52,000 per month.

8.  The husband says that he cannot afford to pay this amount.   He is willing to pay something similar to the interim interim amounts of HK$5,600 per month for the wife and HK$2,460 per month for the child ordered to be paid as from the 1 September 2010, plus undertakings in relation to rent, utilities and the child’s educational and other related expenses. The husband breaks this down as follows:

For Mother

Rent: $6,000/month (including management fees, rates and government rent), 2 bedroom apartment in a private building complex such as K Villas in XX district (including YY)

Water, Electricity, Gas bills: $800

Cable TV and Internet: $200

I am paying the above right now, as she has occupied my apartment.

Transportation: $640

Minibus from the apartment complex to downtown: $2-$3 one way.

Sub-total: $180 (3 x 2 times x 30 days)

MTR from XX to downtown Kowloon or Hong Kong: $15-20 one way.

Sub-total: $380 (20 x 16 times [twice return trips per week, just for pleasure, not for commuting])

Occasional TAXI in XX, average $20 per trip

Subtotal: $80 (20 x 4 [once a week])

Food (for both mother and child): $1806

Home cooking, grocery shopping at XX Street Market or ParkNShop.

Subtotal: $2100 ($70 per day x 30)

Eating out: $480 ($80 x 6 times [1 to 2 times per week])

Household Miscellaneous (toilet paper, toothpaste, etc.): $200

Clothing: $1,000

Cosmetics and Lady’s grooming: $800

Travel and Miscellaneous Entertainment: $800

Total: $5,246

For Child:

Food + Child Nutritious Food: $1174

Toys: $200

Clothing: $1000

Total: $2,374

9.  In addition he is willing to undertake to continue to pay for the child’s school fee (HK$3,551 per month), the school bus fee (HK$645 per month) and for her books and stationary expenses (HK$685 per month). He argues that in total this equates to at least c HK$21,000 per month.

Discussion

10.  I must now turn to consider the issues, the law and the parties’ evidence as set out in their affirmations and their Form E’s.

How much can the husband afford to pay?

11.  As I have said the husband is earning in the region of HK$93,700 per month, He may also be in receipt of a rental income from a property on the Mainland.  His own general and personal outgoings, as listed in his Form E, amount to approximately HK$79,800 per month. Thus on the face of it he has a surplus of at least approximately HK$14,000 per month. The outgoings include the mortgage instalment on the matrimonial home, but not the other expenses for the wife and child, although I am not clear as to whether the figure of HK$3,000 per month includes utility expenses for both properties. I have also noted that the husband has chosen to rent a unit for himself at HK$16,000 per month, whereas initially he said that the rental value of the matrimonial home stood at only HK$6,000 per month. This seems inequitable and I am sure that he could have rented a property for himself only at a much lower figure.  (Latterly he has increased that rental estimate for the matrimonial home to HK$12,000 – HK$15,000 per month). On the face of it some of the husband’s other expenses are also capable of reduction, e.g. HK$7,000 per month for food and HK$3,500 per month as a contribution towards his parents seems a little on the high side. In general I accept that some economies can and will need to be made if he is to provide appropriately for the wife and child.

Reasonable needs of the wife and child  

General expenses

12.  The husband is presently paying the mortgage on the property in Hong Kong, plus the utility expenses (water, electricity and gas) and the fees for the cable TV and internet charges. In addition he is paying for the child’s kindergarten costs and other related expenses as set out in para 9   above. He is willing to continue to do so.  I will hold him to his undertaking in this respect.

In addition how much maintenance should the husband pay to the wife for herself and the child?

General expenses     

13.  In general I found some of the wife’s estimated expenses to be very high. In particular under personal expenses I found the estimate for food at HK$14,000 per month for one adult and a young child to be excessive. In contrast the husband’s estimate of HK$2,100 for food seemed to be a little on the low side. I will allow HK$3,000 for food. I accept the other estimates given by the wife i.e. HK$400 for the telephone and HK$500 for household expenses. Thus in total I will allow HK$3,900 under this head. 

Personal expenses  

14.  The wife’s personal expenses are also rather high – in particular HK$6,500 per month for personal grooming and HK$3,000 per month for clothes seem excessive. Generally I found the husband’s estimates to be more believable, which I have either accepted or rounded up as follows:

I will also allow HK$500 for medical and dental. Thus in total I will allow HK$4,700 under this head.

The Child’s expenses

15.  The husband is bearing most of the child’s direct expenses as set out above. In addition the wife seeks a number of other costs including HK$3,000 per month as a child minding fee. In reality this is to cover the cost of her mother coming to Hong Kong to assist her with child care. Given that the child is now at Kindergarten and the wife is not working, it seems to me that this is not an expense that the husband should be expected to meet. I will allow an additional HK$2,000 to cover the child’s other expenses on a broad brush basis.

Thus in total I accept that the wife reasonably requires approximately HK$10,600 per month in addition to the other expenses covered by the husband directly.   

The wife’s earning capacity

16.  I accept that the wife cannot work in Hong Kong at the present time. 

The wife’s loans

17.  The wife maintains that she borrowed funds in order to cover her living costs following the separation. The husband disputes this. I do not intend to delve into this matter any further at this juncture. If necessary this is something that will need to be investigated further at a later date.

How much maintenance should the husband pay?

18.  It seems to me that the husband should pay maintenance pending suit and interim maintenance as set out above, rounded down to HK$10,500 per month.  This shall be broken down as to HK$6,000 per month for the wife and HK$4,500 per month for the child. In addition I will hold the husband to his other undertakings i.e. to pay for the mortgage, utility expenses (water, electricity and gas), the cable TV and internet charges, together with the child’s educational costs (kindergarten fees, school bus and stationary costs.

19.  In so far as costs are concerned, notwithstanding the fact that this order is closer to the husband’s proposals than the wife’s, given the fact that neither party has totally won nor totally lost I will make an order nisi, to be made absolute in 14 days, that there be no order as to costs.

20.  Consequently having read the parties respective Form E’s and the other affirmations filed

AND UPON the Respondent undertaking to continue to pay for the mortgage on the SV flat, the wife’s water, electricity and gas bills for the SV flat, her cable TV and internet expenses and the child of the families Kindergarten fees, school bus fees and book and stationary expenses I will make an order in the following terms:

1) The Respondent do pay the Petitioner maintenance pending suit for herself in the sum of HK$6,000 per month, and interim maintenance for the child of the family in the sum of HK$4,500 per month first payments to be made on the 1^st February 2011 and thereafter on the first day of each succeeding month until further order.

2) There shall be an order nisi that there be no order as to costs.  The order nisi to be made absolute in 14 days time.