Y v. Y

1997, No.DJ2

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H E A D N O T E

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Matrimonial Law - wife seeking funds from husband to finance her on-going legal costs in a divorce action against him.

Whether the High Court has inherent jurisdiction to make an interim award of capital to one spouse to meet such costs.

Applicability in English Common law of Roman-Dutch principle of contribution towards costs.

Whether a spouse may apply under Section 6 of the Married Persons Status Ordinance for a declaration of beneficial interest in a matrimonial asset in order to obtain release of funds to meet on-going legal costs.

1997, No.D.J.2

IN THE HIGH COURT OF HONG KONG

COURT OF FIRST INSTANCE

DIVORCE JURISDICTION

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J U D G M E N T

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1. On 2nd May of this year, the matter having been transferred from the family jurisdiction of the District Court, two applications were filed by the Petitioner whom, for convenience, I shall call the wife. Both were opposed by the Respondent, her husband.

2. The one application invoked the inherent jurisdiction of this Court in seeking an order that a capital sum be released to the wife from the known

family assets even though at this time the respective financial and property interests of the wife and her husband remain unresolved. The additional or alternative application was made in terms of Section 6 of the Married Persons Status Ordinance, Cap 182, seeking a declaration that the wife has a beneficial interest in an apartment that used to be the matrimonial home thereby also giving to her a means of raising a capital sum.

3. For the sake of completeness, I should add that late in the day, indeed between hearing dates, the wife filed a third application, this time to vary an existing interim maintenance order by again seeking a capital sum to be released from the known family assets. The late filing of this application was opposed by the husband. For reasons to which I shall refer later in this judgment, I ordered that it be adjourned to a date to be fixed.

The purpose of the applications

4. Although the two applications which were argued before me were fundamentally different in nature, they had the same clear and stated purpose. That purpose was to obtain for the wife a capital sum of $100,000 to enable her to finance her continued litigation against the husband.

5. It has been argued on behalf of the wife that the conduct of complex litigation in Hong Kong is a notoriously expensive enterprise. In the break-up of this marriage, it is a fact that the overwhelming majority of the disputed assets are in the name of the husband and, even though he may presently be experiencing a liquidity problem in his personal finances, he has available to him sources of income (loans from family and friends, potential tax refunds and the like) to finance his litigation which are not available to her. As for Legal Aid, although there has been no oral evidence or detail provided by way of affirmation, I have been advised by her counsel that she has seemingly made inquires with that organization and been told that her present assets do not entitle her to assistance.

6. It is not disputed that the wife is presently employed as a senior secretary earning a minimum of $15,000 per month. She lives alone in rent-free accommodation provided by the husband and receives $5,000 per month as interim maintenance from him. The husband presently has custody of the child of the marriage and meets the child's reasonable needs. Nor is it disputed that the wife has savings of approximately $160,000. This sum, however, she has stated, is in the main set aside to provide for her aging parents in case of illness or death. It is argued on her behalf that in any event she should not be expected to exhaust her financial resources before being able to approach the Court to request release of funds to finance her litigation. In this regard, an extract from paragraph 11 of the wife's affirmation of 3rd February 1997 sets out her position:

" I verily believe that it is both unfair and impracticable for me to litigate on credit. My solicitor has told me that counsel or even leading counsel should be briefed for advice on the further conduct of my case because the Respondent [the husband] has painted a complex picture of his financial affairs and has not produced the very basic and essential documentation to support his affirmations of means ..."

7. Although this matter, which is interlocutory in nature, has not required me to investigate the husband's financial affairs in any depth, I do accept that, at first sight at least, they appear to be of complexity. The husband at one time was a director in a successful business which was sold to a public listed company, that sale being subject to a number of guarantees and conditions. With the very substantial proceeds of sale, the husband purchased properties and embarked, so he says, on a disastrous foray into the stock market. However, after sale, the business did not fare well; indeed it has now been liquidated. As a result, the husband has had to forfeit a material portion of the moneys he received in selling it and has found himself without an income. He has now started a new business as a minority shareholder which, on the available papers, appears still to be attempting to break even though the husband insists it has potential. As a result, according to the husband, although some time ago he was able to sell one residential property, he is now making do by receiving loans from his family and close business friends.

8. At this juncture, I should say that it was argued on behalf of the wife that the husband, despite filing several affirmations of means, has not yet made full and frank disclosure and that I should, on the face of the papers alone, make the necessary adverse inference against him. Without hearing full evidence, however, and nothing like full evidence on the matter has been led in this hearing, I am not in a position to make any such inference. Pleadings are on-going and, in passing, I note that the Family Court judge previously appraised of this matter, at about the time he transferred jurisdiction, declined to make an order for discovery requested by the wife.

9. What, however, is evident from the face of the papers is that, since the wife filed her petition for divorce in September 1996, despite a good deal of legal activity, the matter has not proceeded too far. All matters remain disputed; the divorce itself, custody of the child and, of course, ancillary relief. It is therefore uncertain even when a decree nisi will be issued let alone when the ultimate hearing of financial matters will take place.

10. Regarding such financial matters, it is pertinent to note that the wife's originating divorce petition included a claim for various forms of ancillary relief such as lump sum payments and orders for transfer of property. At the same time as the petition was filed and served, there was filed and served too a notice in terms of Rule 73(1) of the Matrimonial Causes Rules, Cap 179, advising the husband that she intended to proceed with her claims in that regard. Such a notice is required when the court is to be asked to determine matters of ancillary relief under sections 4,5 and 6 of the Matrimonial Proceedings and Property Ordinance, Cap 192. Indeed, the wife did proceed to claim for herself interim maintenance in terms of section 3 of that Ordinance. That claim was settled between the parties, the terms of their agreement being made an order of court on 14th November 1996. Inter alia, the agreed terms included an undertaking by the husband to pay $75,000 to the wife to enable her to settle into her new apartment, monthly maintenance in favour of the wife and an order that each party would, in respect of the matter, pay their own costs.

Statutory power to grant an interim lump sum payment

11. It has been accepted by both counsel that there is not in our matrimonial law any direct statutory provision entitling either party on an interlocutory basis to seek release of capital sums from disputed family assets in order to finance litigation against the other party in respect of those same assets.

12. Section 3 of the Matrimonial Proceedings and Property Ordinance, Cap 192, which relates to the provision of maintenance pending suit, refers only to "periodical payments" for the maintenance of a spouse while section 4, which allows for the making of lump sum orders, provides that they may only be made "on granting a decree of divorce, a decree of nullity of marriage or a decree of judicial separation or at any time thereafter".

13. Counsel are further agreed that nor does there appear to be any clear body of case law which implies an entitlement to either spouse to receive a capital sum drawn from disputed assets to finance legal costs. As counsel for the husband has argued, if there were any such entitlement, it would be equivalent to making an order for costs in favour of one party before the dispute itself had been ruled upon and that, in blunt jurisprudential terms, would be putting the cart before the horse.

14. Counsel for the wife, however, has indicated that the seeking of a contribution towards costs in matrimonial matters is not unknown in common law, indeed it has long been an accepted, non-statutory principle of Roman-Dutch law as practised in Southern Africa, a common law jurisdiction. As such, it is one of his arguments that the Basic Law allows this Court to adopt such a principle.

A consideration of Roman-Dutch principles and their applicability

15. As was said in the South African authority of Van Rippen v. Van Rippen 1949 (4) SA 634 :

" The claim for a contribution towards costs in a matrimonial suit is sui generis. It has its origin in the Roman-Dutch procedure, and has been sanctioned through many decades in our practice ... it is the making available of funds to the applicant [the wife] for the purpose of enabling her adequately to place her case before the court."

16. The claim, as I understand it, arises out of the fundamental principle that in all marriages solemnized under Roman-Dutch law, the matrimonial assets are held in joint community. The husband, however, acts as guardian of the communal property and represents the wife in respect of such property. As guardian of the communal assets, the husband owes a duty of support to his wife and one of the incidents of such support is the provision of financial assistance to the wife to meet the costs of any legal action reasonably brought or defended by her, whether between the wife and a third party or between the spouses themselves.

17. It should be noted, however, that once the wife has forfeited her right to support from the husband, for example, by deserting the husband, she is no longer able to claim a contribution towards costs from him. I have cited this to illustrate the degree to which the claim by a wife for a contribution towards costs has been a product not of universal common law principles but rather of Roman-Dutch principles flowing from the rights and obligations between spouses in marriages governed by community of property.

18. It is true, of course, that, within Roman-Dutch law, the principle has been extended to marriages solemnized out of community of property where each spouse (invariably by means of ante nuptial contract) is entitled to hold property in their own name and deal in such property without the leave of the other. But, as was stated in Barass v. Barass, 1979 (1) SA 245 (citing Hahlo: The South African Law of Husband and Wife), the rule enabling a wife to claim a contribution towards costs from her husband remained based on the old principle expounded by Roman-Dutch jurists of the husband's duty of support.

19. Patently, therefore, in my judgment, the rule enabling a wife to claim a contribution towards costs from her spouse in matrimonial proceedings has always been peculiarly a principle of Roman-Dutch law. I am not aware of any equivalent in the English Common Law. For this Court to purport to adopt the rule would therefore mean "importing" it into our law not merely gaining guidance from it.

20. It has been argued that Article 8 of the Basic Law, which holds that the laws previously in force in Hong Kong shall be maintained (including the Common Law) allows this Court to make such an importation. With respect to the novelty of the argument, I believe it to be misconceived. Article 8 states that the laws previously in force in Hong Kong shall be maintained. In so far as it relates to the Common Law, that must be the Common Law of England, that being the law in force prior to the change in sovereignty. The Article cannot be read to mean that the rules of all common law jurisdictions shall have application in Hong Kong.

21. In the circumstances, I do not believe that the wife is able to obtain any assistance in her present applications from the Roman-Dutch rule permitting a female spouse to seek a contribution towards her legal costs.

This Court's inherent jurisdiction

22. However, as I understand the argument of the wife's counsel, even if I am not disposed to import into Hong Kong law the rule that a wife is entitled in matrimonial proceedings to seek a contribution towards her costs from her spouse, nevertheless, in suitable circumstances, the High Court does have inherent jurisdiction to make orders to the same effect.

23. Counsel has based his argument essentially on two English authorities. The first of these is Barry v. Barry [1992] 2 FLR (FD) 233, the ratio of Waite J. being found in a passage commencing at 236H :

"... it does appear to me to be generally desirable that, during the pendency of a final hearing in financial proceedings, the court should enjoy an administrative power to approve in suitable cases acts equivalent to the process described in the language of equity as appropriation, that is to say the allocation of a particular asset to satisfy the contingent claim of a party, notwithstanding that such claim is still unadjudicated, subject to any undertakings or conditions that might be necessary to enable the court at the ultimate hearing to make suitable adjustments to that position before it becomes final. I am therefore satisfied that the wife's application is of a kind that the courts not only have jurisdiction to entertain, but should in suitable cases encourage."

24. The second authority is F v. F [1995] 2FLR (FD) 45 where Thorpe J., in citing with approval Barry v. Barry, commented that:

" In these circumstances what is needed is a judicial discretion to ensure fair play pending the final hearing. I share the view of Waite J that such a jurisdiction exists. Not having his knowledge of equity I would not presume to call it appropriation but I am clear that the court has always exercised an inherent jurisdiction in this area, albeit sparingly and where particular circumstances require it.

Mr. Blair says such a jurisdiction cannot be linked to any specific statutory power. That may be. But there are many instances in which the court exercises its inherent jurisdiction to regulate the lives or affairs of parties to proceedings for dissolution before or after decree absolute, perhaps in relation to ancillary proceedings and particularly if there are minor children of the family affected."

25. The wife's counsel has argued that, if this Court enjoys an administrative power in suitable cases to order the allocation of assets to one of the parties out of disputed assets prior to the ultimate hearing, that must encompass the power to enable the wife to adequately bring her case before the court by awarding to her sufficient capital sums to finance her litigation. Such funds, he says, are ascertainable and may be factored into the final equation when the Court decides best how to determine financial issues. It is the further thrust of his argument that, in family matters when finances are in dispute, the Court invariably takes into account, in assessing its final awards, the legal costs expended by the parties and the extent to which they have affected the assets finally available for distribution. Where therefore lies the harm in making an interlocutory award to one or both of the spouses to meet such costs not at the conclusion of proceedings but as and when they arise? The wife's counsel accepts that, in logic, in protracted proceedings, it may be necessary for the parties to apply for several such interlocutory awards.

26. In reply, counsel for the husband argues that the Court has no jurisdiction to make an interlocutory award of a capital sum which will be extinguished in the meeting of costs. However, should I find that such a jurisdiction does exist, the present case is not one in which I should exercise that jurisdiction.

27. In the absence of statutory power, does this Court therefore possess inherent jurisdiction to make an interlocutory award of the kind sought by the wife, that is, as a contribution towards her on-going legal costs? While there may occasionally be cases in which the fairness of such a power would seem to be obvious, in my judgment it does not.

28. What must be remembered in respect of both authorities cited to me is that the requests for interim capital payments were not made so that such sums could be dissipated at the discretion of the applicant but rather so that, in the interests of the wife and children of the family, a portion of the liquid assets under dispute could be converted into suitable accommodation for them. While the assets were therefore converted into bricks and mortar, they were still retained as assets and they remained always subject to the full play of the Court's discretion when making its final awards.

29. In Barry v. Barry, the wife expressed her application in the form of a summons for an immediate order that a proportion of the net proceeds of a recent sale of the former matrimonial home held in trust be paid out to her for the purchase of a new home for herself and the children of the family, such purchase to be made at an advantageous time. The Court noted that at first blush the application appeared to ask the Court to exceed its jurisdiction in regard to the disposal of capital as the relevant statutes did not include any power to order interim capital payments between spouses inter vivos, the dispositive power to order a lump sum of capital to be raised and paid by one spouse to the other being exerciseable once only and not piecemeal, first on an interim and then upon a final basis. But, as Waite J. (at 236A) described the true nature of the application before him :

" The wife submits, however, that when her application is examined for its full terms and effect, the relief for which she is asking is not properly to be regarded as an immediate application of capital for her absolute and exclusive enjoyment. She asks for nothing at this stage to be paid over to her absolutely or unconditionally. When the new home has been bought and occupied, she submits to treat it as still being subject to the full play of the court's discretion under s25 of the 1973 Act, accepting that its value will have to be taken into account in the final allocation of assets between the parties at the main hearing ...

When her application is qualified in that way, so the wife submits, the relief she claims is not to be seen as an order for interim lump sum payment, but rather as a purely administrative direction approving what amounts in reality to no more than a change of investment for an asset which, despite its transformation from cash to reality, will still remain subject ... to the dispositive powers of the court under the 1973 Act."

Later in the judgment, at 242C, he continued:

" I have already given my reasons for holding that, once the matrimonial assets have become frozen by one means or the other, there is an administrative power in the court to approve a switching of assets from cash to property or vice versa, even against the opposition of one of the parties, provided that the relevant asset remains suitably protected and preserved as an asset with which the court will have to deal at the ultimate hearing of the financial proceedings." (my italics)

30. Similarly, in F v. F, a case in which the parties were fortunate enough to have huge wealth, the wife sought an appropriation order by interlocutory summons to enable her to purchase a home for herself and the children in advance of the final hearing. It had always been contemplated that the wife and children would be housed; indeed the husband's solicitors had already offered to advance a sum for the purchase of a dwelling. In making an interim appropriation order, Thorpe J, as I have quoted supra, cited with approval the dicta of Waite J in Barry v. Barry.

31. In summary, I am satisfied on an analysis of the authorities placed before me that neither Court purported to exercise a general discretion to order interim capital payments between spouses inter vivos. Rather, both courts exercised no more than a restrictive administrative power to approve simply a change in the nature of certain assets which did not extinguish their value. An interim award of capital to one of the parties to enable that party to pay legal costs would, of course, be for the specific purpose of enabling that party to use up, that is, extinguish those funds, not preserve them in another form.

32. As I understand it, counsel for the wife has submitted that moneys spent on costs should not be regarded as being extinguished as they can properly be "added back" into the assets of each party when the court makes its final awards.

33. It is, of course, trite in matters of ancillary relief that when, before the final hearing, both parties have paid substantial sums on account of costs, the court may have to take such costs into account. If so, one of the accounting methods by which that may be done is by notionally adding back into the assets of each party what has already reasonably been paid by that party towards costs. That, however, is a notional exercise, no more, to ensure at the end of the day that costs do not materially undermine any financial award for the welfare and support of the parties. It is, in my judgment, greatly different from an actual award of capital for costs made before the final hearing.

The application made in terms of the Married Persons Status Ordinance

34. This brings me to the additional and/or alternative application by the wife; that is, the application brought in terms of section 6 of the Married Persons Status Ordinance, Cap 182. Section 6, which is the equivalent of section 17 of the English Married Women's Property Act of 1882, reads as follows -

"(1) In any question between husband and wife as to the title to or possession of property the husband or the wife may apply by summons or otherwise in a summary way to a judge to determine the question.

(2) On any such application the judge may make such order with respect to the property in dispute and as to the costs of and consequent on the application as he thinks fit, or may direct such application to stand over and any inquiry touching the matters in question to be made in such manner as he thinks fit."

35. Section 7(7) of the Ordinance declares that the powers conferred on the judge by section 6 includes the power to order sale of the property.

36. It is the wife's case that the question between herself and the husband in this application concerns the title to an apartment known as Flat D, 3rd Floor, Albany Court, 51 Bisney Road, the husband being the single registered owner.

37. It seems that the Albany Court property was purchased in 1994 when the parties were still living together as man and wife. According to a recent valuation, it is today worth some $13,500,000. There is, however, a mortgage on the property in respect of which the husband pays some $50,000 per month. When unhappy differences brought about the separation of the husband and the wife, the wife moved out of the Albany Court property and took up residence in another apartment owned by the husband. She still resides in that apartment. The husband has remained in the Albany Court property with his mother and the child of the marriage, a daughter aged eleven.

38. The wife has stated on affirmation that she has made a material contribution in money and money's worth to the improvement of the Albany Court property and, in terms of section 9 of the Ordinance, has thereby acquired a beneficial interest in that property. It is her case that some two years before the purchase, the husband gave to her as a gift a sum of $200,000 which she then placed into a bank account. When, however, the property was purchased, he prevailed upon her to contribute $100,000 of that sum to meet decoration expenses which had run up to a figure of $700,000. This she did. It is also her case that, as a working secretary, for a period of several years she used some $5,000 of her monthly salary to pay for extra tuition for the child of the marriage thus freeing the husband of that obligation and freeing him to use such spare funds to meet the mortgage liability and from time to time to pay the utility bills. In addition, of course, as a wife (without the help of an amah for much of the time) she attended to the necessary housekeeping chores to maintain the property in good order.

39. The value and nature of the wife's contributions have been disputed by the husband. There is, therefore, argues counsel for the wife, a question as to the title of the property entitling her, in terms of section 6 of the Ordinance, to apply by way of summons to this Court to determine the question.

40. In light of the fact that she has already instituted proceedings for ancillary relief in terms of the Matrimonial Proceedings and Property Ordinance and the Albany Court apartment will be perhaps the most valuable family asset in which she will claim a share in terms of those proceedings, why does the wife bring this essentially procedural application asking the Court to decide whether she has title in the property and, if so, the extent of that title? The wife's stated purpose, as I have indicated, is to use her beneficial interest in the property to raise a capital sum to meet her on-going costs. But how does she intend to do this? The obvious way is to request the court to order a sale of the property in terms of section 7(7) so that she can receive the necessary cash funds from that sale. But the wife only seeks a sale as an option of last resort. She accepts that the Court has a discretion to prevent one of the parties enforcing a right to sell if the result would, in the particular circumstances, be unjust to the other party and at this time, of course, the husband resides in the property (which has been the matrimonial home since late 1994) with the child of the marriage and his own mother.

41. What the wife seeks instead of a sale is an order that the husband do pay her out for so much of her share as will enable her to meet her on-going legal costs. In this instance, for simplicity, the wife has given an undertaking through counsel that she will seek only $100,000 and will not return before the finalisation of proceedings to seek any further "draw down" on her stated beneficial interest in the property. The property, of course, will have to remain as a family asset until the final award by the Court in terms of the Matrimonial Proceedings and Property Ordinance; in short, a defining of title will not enable the parties at this time to realise their interests in full.

42. If I understand counsel correctly, he states a principle that in matrimonial proceedings, in circumstances that the court deems fitting and where legal costs are liable to be high, either party may at an interlocutory stage apply to the court to settle a dispute as to title of property held in the name of one party only (be that real estate or other property) so that, upon beneficial interests being defined, the parties may realise from such interests the necessary funds to litigate, such realisation, of course, being subject to those undertakings that the court deems proper. Put even more succinctly, if the court defines beneficial interests in terms of a section 6 application, there is nothing in principle to prevent those defined interests being used as a wellspring from which either party may draw funds to meet on-going costs. This is a case, argues counsel for the wife, in which the ultimate ancillary relief hearing is likely to be many months away, where the wife has limited funds, and where accordingly this Court should and must determine the wife's application in terms of section 6.

43. In opposition, counsel for the husband has argued that the application is entirely inappropriate, amounting to an abuse of process; that the legislation was enacted to define rights irrespective of whether a marriage had broken down or not and not to decide on an interim basis to whom the value of the property shall pass during the course of matrimonial proceedings.

The appropriateness of a Section 6 application

44. Lord Morris, in Pettitt v. Pettitt [1969] 2 All ER 385, in considering the nature of a section 17 application under the Married Women's Property Act, that section being equivalent to our section 6, said as follows (at 392H):

" In my view, all the indications are that s17 (following on s.9 of the Act of 1870) was purely a procedural section. It gave facility for obtaining speedy decision. It related to 'any question between husband and wife as to the title to or possession of property'. In regard to a question as to the title to property the language suggests a situation where an assertion of title by either husband or wife has been met by a denial or by counter-assertion on the part of the other. The language is inapt if there was any thought of taking title away from the party who had it. The procedure was devised as a means of resolving a dispute or a question as to title rather than a means of giving some title not previously existing. One of the main purposes of the Act of 1882 was to make it fully possible for the property rights of the parties to a marriage to be kept entirely separate. There was no suggestion that the status of marriage was to result in any common ownership or co-ownership of property. All this, in my view, negatives any idea that s17 was designed for the purpose of enabling the court to pass property rights from one spouse to another. In a question as to the title to property the question for the court was -'whose is this' and not -'to whom shall this be given.' "

Lord Morris continued at 393H :

" If matrimonial troubles bring the spouses to the courts there are various statutory powers relating to property which can be exercised. But if in a 'question' between a husband and a wife as to the title to property recourse is had to the special procedure made possible by s17, decision must be reached by applying settled law as to the facts as they may be established."

45. The scope of a section 6 application in our law is therefore limited. It is a procedural section under which parties can apply to the Court for a declaration as to what are their legal and equitable interests in a property without any opportunity for adjustment by the court. Where, of course, there are no divorce proceedings, disputes about property will have to be resolved under section 6 of the Ordinance. However, where divorce proceedings have been instituted and one party has elected to secure property and financial benefits in terms of the Matrimonial Proceedings and Property Ordinance, all issues are invariably today dealt with in terms of that statute.

46. In Fielding v. Fielding [1978] 1 All ER 267, a case where the courts below had concentrated on a section 17 claim, it was said:

" It seems a great pity that all the complications of trying to ascertain the parties' property rights should have been undertaken and pursued when the [Matrimonial Causes Act 1973] provides an elastic method of deciding what is a fair order in all the circumstances, adjusting property rights if need be, under the wide powers of the court. It is nearly always a purely theoretical exercise to try to determine the strict property rights of each spouse."

47. As was stated by one of the other judges of appeal:

" There are obviously certain cases, relatively unusual, in which the strict property rights of the spouses are material and fall to be determined under the Married Women's Property Act 1882; but such cases are indeed unusual and the present case is emphatically not one of them."

48. Counsel for the wife has submitted that this is one of those unusual cases that falls outside of the general scope. Unusual it certainly is. But what is the wife in this instance really seeking? Is it a declaration of her beneficial interest in the property to protect her interest against third parties or perhaps because she believes there are pressing reason to sell the property now. No, any declaration of beneficial interest is simply en route to what she requires; namely, an interim payment of a capital sum from the husband to meet legal costs. She does not - and for very cogent reasons - wish to abide by any declaration of her beneficial interest that this Court might make. If she were to do so by abandoning her existing claim under the Matrimonial Proceedings and Property Ordinance it would in probability be to her grave long term disadvantage. The wife seeks no more than a temporary declaration for the purpose of forcing the husband to pay to her an interim capital sum which is not provided for either in the existing legislation or, in my judgment, embodied in the inherent jurisdiction of the court. There is not therefore, in my judgment, "a question between husband and wife as to the title to" property to be determined.

49. However, even if I am wrong in this and the application is properly placed before this court for determination, I am not satisfied on the evidence that the wife has factually been able to show that by reason of her contributions there has existed a constructive trust in her favour entitling her to title in the Albany Court apartment.

A consideration of the evidence itself

50. As already indicated, it is the wife's case that she contributed a sum of $100,000 in a direct payment towards the purchase and/or improvement of the Albany Court apartment; this, together with certain other contributions to which I shall refer shortly, being her contribution. The $100,000, she said, came from a gift of double that amount given to her two years earlier by the husband.

51. While the husband accepts that he had given the wife $200,000, he has denied that it was given as a gift. It is his case that, as he was travelling a good deal at the time into the mainland and elsewhere, he believed it prudent to leave a cash sum readily available in case anything should happen to him. That sum would be used essentially to cover his daughter's future educational needs but would be used by his wife and his mother too if necessary. It was his evidence that he originally gave a cheque for $200,000 to his wife in the daughter's name but the wife convinced him that there would be difficulties with the bank and he agreed that it should be held by his wife. There was therefore no gift; the funds were simply being held by the wife in trust for the family in the event of any ill befalling the husband. It was the thrust of the husband's case that, when Albany Court was purchased and he needed funds for the decoration expenses, he simply asked his wife to pay back half of that sum and she paid that amount over because she well knew that it was family money and not hers alone. That was why, argued the husband's counsel, she made payment without making any demands or setting any conditions; for example, requesting that she be registered as a joint owner or that he repay the money to her within a specified time.

52. In the absence of evidence to the contrary, of course, where a husband has made over a sum to his wife which is thereafter held in her name it is presumed that he has made a gift to her. It is upon this presumption of advancement that the wife founds her claim. How then did she come to acquire the money as a gift? As she expressed it in her affirmation of February 1997:

" I remember sometime in 1992, during a chit-chat with the Respondent, I expressed to him that I was 36 years old at that time and had been married for some 9 years; apart from my family, I had nothing comparing with some of my schoolmates. The Respondent knew that I had no savings of my own at all and he then promised to give me some money as his recognition of my contribution to the family. The Respondent then gave me $200,000 as he had promised."

53. A study of the wife's voluminous divorce petition shows that, according to her, she was never consulted by the husband when it came to buying matrimonial homes; she had no say in where they should live nor was she given any say concerning the decoration of these new homes. She was excluded from such matters. More than that, it was one of the allegations in the petition that the husband, by words and by conduct, made it clear that she was only entitled to stay in the matrimonial home so long as she remained married to him.

54. On this basis, I am satisfied that the probabilities indicate that, from a stance of such uncertainty, the wife would at least have made an inquiry as to how the giving over of her money would be of some benefit to her. For example, would she now have some say in the decoration of Albany Court? After all, $100,000 of her money was going into the cost. Would her money at least be refunded to her? Better still, to preserve her long term rights, especially as she had no other savings and no other recognition of her contribution towards the family, would the husband consider registering the home in their joint names? The wife, however, makes no suggestion in her written or oral evidence that she made any approach of this kind. In her affirmation of January 1997, the wife said simply:

"7. When the Respondent purchased the former matrimonial home from the developers, he told me the new property needed interior decoration to suit his tastes. As usual, he did not inform me of his plan for decoration but I had no objections to it either... At the beginning of December 1994, the Respondent asked me if I had any savings to pay for the decoration works. The Respondent further told me that the money spent on decoration would certainly increase the value of the property. I believed what the Respondent said and on 6th December, 1994, drew $100,000 ... "

55. In the circumstances, having heard both parties give evidence, I am satisfied that the presumption of advancement has been rebutted by the husband and that the probabilities indicate that the $200,000 held by the wife was a family asset intended as a continuing provision for all the family members.

56. As to the wife's contributions in kind, on her own affirmations I am satisfied that these were made not with a beneficial interest in Albany Court only but were made with a view towards the general family good and towards the preservation and enhancement of all family assets. In this regard, in her affirmation of January 1997, the wife said:

" In view of my efforts and contributions as hereinbefore mentioned under paragraphs 4, 5, 6 and 7, I honestly and genuinely believe that I have a vested interest in the former matrimonial home as well as in other properties and assets under the name of the respondent and his company; namely, Kunama Ltd. which he holds 99% of its shares."

57. Paragraph 4 avers that, when the parties were living together, the wife "sometimes" paid the utility accounts. Paragraph 5 avers that, when the daughter reached primary school, the wife engaged a tutor for the child and a piano teacher and thereby spent approximately $5,000 per month. This was done, she said, in the belief that it would "ease the financial burden of the Respondent" who had to find money to pay for the mortgages of the former matrimonial home and the parties' properties at Heng Fa Chuen and Happy Valley.

58. Paragraph 6 avers that during the marriage, the wife not only worked as a secretary but also looked after the matrimonial home, her daughter and, when necessary, the husband's mother.

59. In my judgment, these are all matters which will stand the wife well in her claims for ancillary relief but such contributions to the general family welfare are not of assistance to her in her section 6 application.

The application to vary interim maintenance

60. As mentioned at the beginning of this judgment, between hearing dates, the wife filed an application by way of summons to vary the existing order for interim maintenance to seek a capital sum to be applied towards legal costs; essentially a third limb to her request for an interim capital sum. The application was opposed and I ordered that the matter be adjourned to a date to be fixed. I did so for two reasons which I told counsel I would give in this judgment.

61. First, on the face of it, the Matrimonial Proceedings and Property Ordinance makes provision only for periodical payments for interim maintenance. There would, therefore, be the question of jurisdiction to be canvassed as well as the extent to which the word "maintenance" may incorporate assistance with on-going legal fees, matters which counsel for the husband had simply had no time to research.

62. Second, any claim for variation of maintenance would have to show a material change in circumstances and there were no affirmations in support (or in opposition) concerning this central matter.

Costs

63. I come finally to the question of costs. In my provisional view, having heard no argument, as the wife has failed in all her applications, costs must follow the event and be given to the husband.

Orders

64. My orders are as follows:

1. That Petitioner's summons claiming a declaration of beneficial interest in terms of section 6 of the Married Persons Status Ordinance, Cap 182, and further claiming that Respondent do release a portion of the assets presently held by him to the Petitioner as and for her legal costs be dismissed.

2. That there shall be an order for costs in favour of Respondent, such order to be an order nisi in the first instance with liberty to apply within fourteen days.