HKC v. CTF

FCMC 7001/2013

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES

NUMBER 7001 OF 2013

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J U D G M E N T
(Maintenance pending suit/Interim maintenance)

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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 (MPPO) and interim maintenance for the only child of the family, a little boy who was born in October 2003 and is now approaching 10 years of age, pursuant to s.5 of the same ordinance.

The main issues

2.  In broad terms 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?

Background 

3.  The parties married in March 1992 and separated in June 2013 when the wife left the matrimonial home with the son, in order to live with her sister. The divorce petition was issued on the 21 May 2013.

4.  The wife has been a housewife since marriage, whereas the husband is a Metaphysician. He seemingly has a following of sorts in the States and Taiwan. It seems that he was also employed for a short while as a Business Development Manager of a golf magazine. However for all intents and purposes I am proceeding on the premise that the husband presently only has one source of income and that is from his work as a Metaphysician.

5.  It should be noted that the breakdown of the marriage appears to have been acrimonious with the wife alleging that the husband has been violent towards her.  The husband was bound over for 12 months following an alleged incident in May. The wife moved out of the matrimonial home following that incident. She says that the husband subsequently changed the locks on the matrimonial home making it impossible for her to re enter the property or to pick up personal and other items. She also says that at about the same time the husband cut off her access to joint funds and terminated her credit cards.

6.  The husband for his part accuses the wife of mental instability and says that she invested heavily in the stock market and lost a significant amount of money in the 2008 crash.

7.  The wife denies this and says that all investments were made at the bequest of the husband. She also believes that the husband has formed a relationship with a third party. Whilst admitting to some difficulties in the past the wife also denies the allegations of mental instability made by the husband.      

The law

Maintenance pending suit and interim maintenance

8.  The law is well known and not in dispute. Section 3 Matrimonial Proceedings and Property Ordinance Cap 192 states that the only governing principle is that the court shall make such order as it considers reasonable in all of the circumstances of the case. Consequently applications such as these are approached on a broad-brush basis. A detailed examination of the parties’ means may be examined at a later date at a full ancillary relief hearing if there is no agreement in the meantime, when there is then every opportunity to achieve fairness by means of set off. In other words, if there is any overpayment or underpayment that can normally be rectified at a final ancillary relief hearing. Applications for interim maintenance under section 5 of the same ordinance are approached in exactly the same way. As Rayden points out

…what really matters is the immediate and reasonable requirements of the wife balanced against the ability of the husband to pay for them, assessed using a broad-brush approach. (See paragraph 16.17 of Rayden, 18^th edition).

9.  Reference can also be made to paragraph 3.92 of Jackson’s Matrimonial Finance 9^th edition where it states as follows:

“When a party applies for an order for maintenance pending suit or for periodical payments, it is not a complete answer to the claim for the potential payer to say: ‘I have no income and no assets’. In one case, a husband with a very small income (in three successive years it was £42, £69, £60) who asserted that he was ‘living on borrowed money and starving off a number of creditors while he [was] developing certain properties’, was nevertheless shown to have maintained by means of bank loans a consistent standard of living over a substantial period: the court in effect held that if he could borrow for himself he must likewise borrow for his wife. The principle was that he was able to touch resources from which payments could be made; he had the ability to obtain the necessary money, albeit bank loans, and it was assumed that his ventures were such as not only to justify the loans but also reasonably to contemplate their repayment in due course ….”

10.  With respect, although I was not specifically addressed on this point, it seems to me that this should also be borne in mind in the context of this particular case.  

Each party’s case

The wife

11.  The wife’s case is very simple. She says that she is a housewife and has been throughout the marriage and that as such she is totally reliant on the husband financially. She says that she and the husband operated a joint bank account for household expenses. She says that she was also able to access this account and that in addition he would also give her cash for other daily expenses. She was also a supplementary card holder of an American Express card and a Citibank credit card. She says that as from May 2013, when she moved out of the matrimonial home, the husband stopped transferring money to the joint bank account or giving her cash. He also terminated her credit cards. Although she has some limited funds from the sale of shares that she held in her sole name previously, clearly both she and the son need to be financially supported by the husband going forward. At present the husband is paying interim maintenance pending suit to her in the sum of HK$3,000 per month and interim interim maintenance for the son also in the sum of HK$3,000 per month.

The husband

12.  The husband for his part says there is no money. He claims that the parties have been relying on loans from family and friends for years and that his income is minimal. He claims to be only earning HK$8,000 per month. He says that the only option is to sell the former matrimonial home. This is not accepted by the wife.  

The evidence

13.  The difficulty with the husband’s case is that it did not come up to proof. The husband produced copies of bank statements from the parties’ joint account from June 2010 to date. I do not intend for present purposes to analyse all of these statements – although clearly this will need to be done in due course. However on a broad brush basis if one takes the statements for 2012 one can observe regular deposits into this account and regular payments out. If one leaves to one side for a moment obvious loans and payments in from trading in gold, one can track the other deposits. It seems from this that on average just over HK$50,000 was paid into this account each month (circa HK$627,145 divided by 12 = 52,262). In addition one can identify the payments for the credit cards and in particular – the American Express card and the Citibank card which the wife had access to. From this it can be seen that on average just over HK$17,000 per month was paid on the American Express card and a further sum of approximately HK$4,500 per month on the Citibank card. In addition the husband took out a loan of HK$72,000 in May 2013 – just as the wife left the matrimonial home. He has been repaying that loan at a rate of HK$8,000 per month since. It is also clear from the bank statements that the husband stopped making any significant payments into this account in May 2013 when only HK$2,500 was paid in.

14.  This evidence largely supports the wife’s version of events i.e. that the husband earned between HK$20,000 – HK$60,000 per month as a metaphysician. She says that much of this income was received in cash.  Further it is clear from the credit card statements that the parties enjoyed a reasonably comfortable standard of living commensurate with that of a lower middle classed family in Hong Kong.

How much maintenance should the husband pay to the wife for maintenance pending suit for herself and as interim maintenance for the son?

The wife’s needs

15.  What then would be a reasonable amount for the husband to pay on a broad brush basis? The wife asks for HK$32,000 per month. There was some confusion during the hearing concerning her present living arrangements and the production of receipts for the new flat which seemed to be largely self serving. But for present purposes I will accept that the wife is sharing a flat with her sister and that she is paying HK$6,000 per month as a contribution towards the rent. All of the other general expenses seem reasonable save for the estimate for food of HK$10,000 per month – which seemed very high for one adult and one child. I will allow HK$5,000 per month. Likewise the estimate for household expenses at HK$2,000 per month also seemed a little on the high side – I will allow HK$1,000 per month for those expenses. Thus on a broad brush basis the wife’s general expenses for herself and the son are just over HK$13,000 per month. The wife claims an additional HK$6,350 per month (rounded up) as her own expenses and a further HK$6,390 for the son. It seems to me that both are capable of some reduction - I will allow HK$5,000 per month for each.

The husband’s ability to pay   

16.  I do not accept the husband’s case that he is only earning HK$8,000 per month. Given the analysis of the bank accounts at paragraph 13 above, that seems to me to be extremely unlikely scenario. However even in the event that the husband is relying in part or whole on bank and other loans, then that is something that I can take into account on an interim basis. Certainly the husband was able to procure a loan of HK$72,000 in May, when according to him he was only earning HK$8,000 per month. He is asking the court to believe that he is paying the whole of his income back in a loan repayment of HK$8,000 per month. This simply does not make sense. In terms of the husband’s own outgoings it is interesting to note that he claims to be repaying HK$23,665 per month as mortgage repayments. This appears to be in addition to the monies that are spent from the joint account and goes some way to supporting the notion that his income may be greater than the HK$50,000 per month referred to above.

17.  All in all then I am satisfied that the husband has the financial resources available to him to make these interim payments.

Order

18.  Consequently I shall make an order as follows:

1)   The Respondent shall pay maintenance pending suit to the wife for herself in the sum of HK$11,500 per month and interim maintenance to the Petitioner for the child of the family also in the sum of HK$11,500 per month the first payment to be made on the 1 October 2013 and thereafter to be paid on the 1^st day of each succeeding month until further order.

2)   The Respondent shall pay the Petitioner’s costs on a party and party basis to be taxed if not agreed.

3)   The First Appointment and Children’s Appointment shall be adjourned to the 12 November 2013 at 9:30 am.

4)   Both parties do personally attend that hearing.