KJA v. KYSH formerly known as YSH

FCMC 4456 / 2013

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES

NUMBER 4456 OF 2013

----------------------------

------------------------------------------------

J U D G M E N T
(Maintenance Pending Suit)

------------------------------------------------ 

Introduction

1. This is an application by a Petitioner husband for maintenance pending suit pursuant to s 3 Matrimonial Proceedings and Property Ordinance Cap 192.

The main issues

2. The main issue to be determined is how much the wife should pay to the husband as maintenance, pending final resolution of this matter. The wife has offered to pay HK$10,000 per month whereas the husband seeks HK$33,000 per month for three months such sum to be reduced to HK$25,000 per month thereafter with effect from the 1 March 2015.

Background 

3. This case began as a defended suit. I handed down my judgment in that respect on the 21 August 2014 when I said as follows:  

3. The parties married in March 2003 when the husband was nearly 60 and the wife 37 years of age. This was the husband’s fourth marriage, whereas the wife had not been married before. By all accounts the marriage has been a very troubled one with the husband originally issuing proceedings for divorce on the basis of the wife’s unreasonable behaviour in 2011. The parties subsequently reconciled and the original divorce petition was withdrawn. The wife undertook at that time to pay the husband HK$10,000 per month for his financial support and she also entered into a non molestation undertaking. Unfortunately however the parties’ reconciliation was short lived and on the 20 March 2013 the husband filed a second petition again based on the wife’s unreasonable behaviour. The wife filed an Answer on the 6 May 2013. She did not cross petition. The husband filed his Reply on the 21 May 2013.

4. It is accepted that the wife, who is of Chinese descent, has been the major bread winner throughout the marriage. She works full time in the financial field whereas the husband, who is American, is a retired musician and academic.

5. It should also be noted that the husband has some very significant health issues and that he is presently in remission from stage IV cancer of the oesophagus. 

4. Sadly, since that judgment was handed down, the husband’s health condition has deteriorated significantly and he is presently undergoing treatment on an intermittent but ongoing basis in Taiwan. The wife for her part says that she has recently been diagnosed with a mental health condition – namely a bipolar disorder. Further information in that respect will no doubt be provided in due course.

5. It should also be noted that I found in favour of the husband in respect of the suit and   I granted him a decree nisi of divorce based on the wife’s unreasonable behaviour.  I added that:

22. … It seems to me that this marriage has broken down irretrievably and that the husband cannot be reasonably expected to live with the wife especially given his ongoing health issues.

In addition I ordered that the wife do pay the husband’s costs of the trial on a party and party basis.

6. It should be noted that although the wife failed to make payment of the agreed maintenance pending suit at one stage, any arrears have since been paid up to date and the wife is currently continuing to make payments as ordered – albeit according to the husband the payments are sometimes made late. An order for interim maintenance pending suit in the sum of HK$10,000 per month was made on the 14 October 2014 pending this hearing in order to avoid any misunderstandings in this respect.

The law

Maintenance pending suit

7. The law is well known and not in dispute. Section 3 Matrimonial Proceedings and Property Ordinance Cap192 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. Generally the court is concerned with establishing the standard of living of the parties and the ability of the paying part to meet the payments to be made. In so far as it is possible the court will also endeavour to try to look to the reality of the situation and will try not to simply accept the bare assertions made by one or other of the parties.

How much maintenance should the wife pay to the husband as maintenance pending suit for himself?

8. In essence the husband’s case is that the wife should pay him HK$33,000 per month dropping to HK$25,000 per month because he needs the additional funds to pay for his cancer treatment and other costs associated with it.

9. The wife argues in turn that she should not be expected to contribute towards the costly treatment of the husband’s cancer treatment given that it was his decision to obtain treatment in Taiwan and not in Hong Kong – where it would arguably have been cheaper and more cost effective. She also maintains that the husband’s daughter by a previous marriage, E, had agreed to pay for that treatment. With respect this line of argument is somewhat distasteful. Although it is true that it was the husband’s choice to obtain treatment in Taiwan and his daughter has infact provided for much of the cost, this should not obviate the wife from any responsibility in this regard – especially on an interim basis where the court is charged with looking at issues relating to maintenance on a broad brush basis. Given that it cannot be disputed that the husband is presently undergoing further treatment in Taiwan for his cancer, it seems to me that in such circumstances the wife should be obliged to contribute towards the costs of that treatment.

10. In addition the wife argues that the husband is a gambler and that he frequently goes to Macau – even when undergoing the treatment. She says that she should not be obliged to contribute towards any losses made by the husband in this respect. The husband for his part does not deny that he goes to Macau and that he occasionally gambles. He does however dispute the level of losses alleged by the wife. In particular he says that this is practically his only form of entertainment and that most of the time he breaks even.  

11. The husband’s expenses are set out in his latest Form E dated the 26 September 2014 as follows:

General Items
Mortgage instalments	Paid by R
Utilities Other utilities (Now TV, broadband, telephone) Management fees	Paid by R 784 Paid by R
Food	1,500
Household expenses	300
Car expenses	2,500
Insurance premia	Paid by R
Domestic helper	0
Long distance calls	100
Sub total	5,184
Personal Items
Meals out of home	4,500
Transport	100
Clothing/shoes	400
Personal grooming	400
Holidays/entertainment	4,000
Trips to cancer centre in Taiwan	7,000
Medical/dental/nourishment	10,000
Others: mobile phone	400
Sub total	26,800
Total expenses	31,984

12. With respect these expenses seem quite reasonable in the circumstances. I accept that the husband will at this stage be ill advised to change his treatment plan and that it will be necessary for him to continue to make regular trips to Taiwan for treatment. In such circumstances I also accept that it is reasonable for him to make some form of interim payment to the hospital. He proposes paying HK$10,000 per month. Ultimately payment may need to come from his share of the assets. I note his intention to also repay E in due course. It seems to me that it would be wholly appropriate for him to do so. The counsel for the wife challenged the evidence produced by the husband in relation to the cost of his treatment in Taiwan. This may need to be looked at in more detail at a final ancillary relief hearing, if agreement is not reached in the meantime. However as things stand, it is clear that the husband is receiving treatment, that the wife has not contributed very much towards his medical expenses to date and that these costs will be continuing. In such circumstances to allow for a minimal payment of HK$10,000 per month as suggested by the husband seems sensible. I also accept his estimate of HK$7,000 per month to cover the cost associated with the trips to and from Taiwan.

13. However some adjustment can be made to some of the other expenses – such as the car expenses – which I will reduce to HK$1,500 per month, meals out of the home, which I will reduce to HK$3,500 per month and holidays/entertainment, which will be reduced to HK$2,000 per month. The latter reduction is in part a recognition of the wife’s concerns with respect to the husband’s alleged gambling habit.

14. Thus a more reasonable level of expenditure would be as follows: 

General Items
Mortgage instalments	Paid by R
Utilities Other utilities (Now TV, broadband, telephone) Management fees	Paid by R 784  Paid by R
Food	1,500
Household expenses	300
Car expenses	1,500
Insurance premia	Paid by R
Domestic helper	0
Long distance calls	100
Sub total	4,184
Personal Items
Meals out of home	3,500
Transport	100
Clothing/shoes	400
Personal grooming	400
Holidays/entertainment	2,000
Trips to cancer centre in Taiwan	7,000
Medical/dental/nourishment	10,000
Others: mobile phone	400
Sub total	23,800
Total expenses	27,984

15. This figure represents on a broad brush basis what seems to me to be more reasonable level of expenditure for the husband. I will round this up to HK$28,000 per month. 

What income does the husband presently have apart from the maintenance from the wife?

16. It was accepted by the counsel for the wife that the husband does not have any real earning capacity at present. He is a 71 year old man with stage IV cancer. In such circumstances it is unrealistic to expect him to be able to earn anything very much at present. In any event it is also accepted that the wife has been the major wage earner throughout the marriage. The husband’s only income is some social security benefits received from the US Government and an Old Age Allowance received from the HK Government. These add up to approximately HK$7,300 per month. Thus the husband “needs” the balance of approximately HK$20,700 per month or say HK$21,000 per month (rounded up).  

Can the wife afford to pay this sum?

17. It is not disputed that the wife currently earns just under HK$90,000 per month. What is in dispute is the current level of the wife’s monthly expenditure, including the repayment of recently acquired loans. The wife’s updated expenses are set out in her affidavit dated the 11 November 2014 as follows:

4.1  General

Item	Amount
Rent (incl Government Rates)	$0.00
Mortgage instalments	$6,180.00
Utilities (electricity, gas, rates, telephone & water)	$2,685.00
Management fees & Government Rates	$700.00
Food	$6,000.00
Household expenses	$2,500.00
Car expenses (car parking space rental)	$500.00
Insurance premia	$119.00
Domestic helper(s)	$2,500.00
Others (specify):	$0.00
Attach a copy of the latest rental receipt.	HK$21,184.00

4.2  Personal

Item	Amount
Meals out of home	$3,750.00
Transport	$3,900.00
Clothing/shoes	$2,000.00
Personal grooming (including haircut and cosmetics)	$2,500.00
Entertainment/presents	$2,000.00
Holiday (average per year)	$4,000.00
Medical/dental (average per year)	$7,000.00
Tax	$11,000.00
Insurance premia	$16,795.00
Interim maintenance	$10,000.00
Contribution to parents	$3,000.00
Mobile phone	$132.00
Others (specify): charity	$100.00
	HK$66,177.00

Total monthly expenses for children
Total monthly expenses (4.1 + 4.2 + 4.3)	HK$87,361.00

18. In addition she says that she has a number of loans that she is required to repay on a monthly basis. Thus she says that she currently runs into deficit each month as follows:

Description	Amount (HK$)	Amount (HK$)
Income (average)		$89,243
Less:
Monthly expenses	$87,361
Repayments of the 4 loan	$34,545.53
Monthly reserves for Legal Expenses	$20,000	$141,906.53
		($52,663.53)

19. With respect although most of the General Expenses seem reasonable, especially those that the husband also benefits from (i.e. the mortgage instalments, utilities, management fees and Government rates, food and household expenses), other personal expenses should be capable of some reduction. In particular the wife should be able to reduce the amount of money that she spends on meals out of the home, clothing shoes, personal grooming, entertainment and holidays. Although the wife says that she will need to pay more money for herself on medical issues, no evidence has been produced in that respect. Further any contribution made towards the wife’s parents should not take precedence over her obligations towards her husband. Likewise the payment for insurance premia seems to be very much on the high side.   

20. I also have some concerns with respect to the wife’s alleged loans and the reasons for them. But in any event the fact that the wife has the ability to raise loans at this point in time should also mean that if necessary she can draw on such loans in order in part to make proper interim financial provision for the husband. See for example 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 ….”

I agree with this approach.

21. All in all I am satisfied that the wife does have the means to pay the husband HK$21,000 per month and that in part this should come from a reduction in some of her own expenditure. This order will also be made on the premise that the wife shall continue to pay for the other household items as set out in her list of General Expenses as set out in paragraph 17 – 4.1 above.  

Costs

22. Given that the husband has been more successful than not, that he had had no option but to make this application and the fact that the husband is legally aided I shall also order that the wife pay the husband’s costs of this application on a party and party basis to be taxed if not agreed, the husband’s own costs to be taxed in accordance with Legal Aid Regulations.

23. I was addressed at the end of the hearing on the future conduct of this case. I am concerned that it should proceed to FDR as quickly as possible. There is a potential preliminary issue point – that could delay the matter quite significantly if pursued. I will expect to be addressed on this at the next First Appointment hearing.

Order

24. Thus I will make an order as follows:

Upon it being directed that the wife do continue to pay for those items set out in paragraph 17 – 4.1 above namely the General expenses

IT IS ORDERED THAT

1) Paragraph 2 of the order dated the 14 October 2014 shall be varied to the effect that the Respondent do pay maintenance pending suit to the Petitioner for himself in the sum of HK$21,000 per month, the first payment to be made on the 1 January 2015 and thereafter to be paid on the 1st day of each succeeding month until further order.

2) The Respondent do pay the Petitioner’s costs on a party and party basis to be taxed if not agreed. The Petitioner’s own costs to be taxed in accordance with Legal Aid Regulations.

3) There shall be a further First Appointment hearing on the 26 January 2015 at 10 am.

4) Both parties do personally attend that hearing.