WPP v. CYK

FCMC 8240/2015

[2021] HKFC 252

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES

NUMBER 8240 OF 2015

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JUDGMENT

(Ancillary Relief )

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1.  This is an application made by the Respondent Husband (“H”) for ancillary relief against the Petitioner Wife (“W”).

Brief background of the case

2.  Parties met each other in 1990 and started courtship in about 1992.  H was working as a travel agent at the time whereas W was a student.  The parties married on 13 June 1997 and there are no children of the family. In 1998, the parties purchased a unit as joint tenant under the Home Ownership Scheme which is the former matrimonial home (“the former matrimonial home”).  The parties separated in March 2007.  By virtue of the Order made before HHJ I Wong dated 3 March 2021[1], the 4 limited companies under W’s name are post-separation non-matrimonial assets. The former matrimonial home is therefore the only family assets.

3.  By virtue of the valuation report prepared by Midland Surveyors who was appointed by the parties as Single Joint Expert, the former matrimonial home as at 1 November 2021 on the basis of sale with the benefit of immediate vacant possession in Open Market and free from all legal encumbrances disregarding all its unauthorized structures, if any, is in the order of HK$9,100,000 but sale in HOS Secondary Market is HK$6,400,000.

Legal Principles Applicable to Ancillary Relief claims

4.  There is no dispute that in deciding on ancillary relief claims between the parties to the marriage, the court is required by section 7(1) of Matrimonial Proceedings and Property Ordinance, Cap 192 (MPPO) to have regard to the conduct and all the circumstances of the case including the following matters:

(a)  the income, earning capacity, property and other financial resources which each of the parties has or is likely to have in the foreseeable future;

(b)  the financial needs, obligations and responsibilities which each of the parties to the marriage has or is likely to have in the foreseeable future;

(c)  the standard of living enjoyed by the family before the breakdown of the marriage;

(d)  the age of each party to the marriage and the duration of the marriage;

(e)  any physical or mental disability of either of the parties to the marriage;

(f)  the contributions made by each of the parties to the welfare of the family, including any contribution made by looking after the home or caring for the family;

(g)  in the case of proceedings for divorce or nullity of marriage, the value to either of the parties to the marriage of any benefits (for example, a pension) which, by reason of the dissolution or annulment of the marriage, that party will lose the chance of acquiring.

5.  In the case of LKW v DD [2010] 13 HKCFAR 537, the Court of Final Appeal has provided 4 guiding principles: -

(a)  The objective of section 7 exercise is to arrive at a distribution of assets which is fair between the parties.

(b)  The concept of fairness requires the refutation of any gender or role discrimination.

(c)  In order to eliminate insidious discrimination and promote fairness, judges should check their tentative views of distribution against a “yardstick of equal division” which should be departed from only for good, articulated reasons.

(d)  The court should not countenance any attempt to engage in costly and often futile retrospective investigations of the failed marriage which tend to deplete the parties’ (and the courts’) resources and to increase antagonism and discourage settlement.

6.  The Court of Final Appeal has laid down 5 steps in determining ancillary relief applications: -

(a)  identification of the assets and to ascertain the financial resources of each of the parties calculated as at the date of the hearing;

(b)  assessment of the parties’ financial needs;

(c)  if surplus assets would remain after the parties’ needs have been catered for, the next step in the exercise should generally be for the court to apply the sharing principle to the parties’ total assets, leaving the “needs” question previously considered to be dealt with under that principle;

(d)  considering whether there are good reasons to depart from equal division; and

(e)  when deciding the outcome, the court is not bound to depart from equality in the division of the parties’ assets even if one or more of the factors considered are engaged on the facts. The weight to be given to such considerations is a matter of discretion for the court.

7.  In relation to matrimonial home, Ribeiro PJ said,

“98. It should be noted that these refinements are not generally applicable to the matrimonial home and other assets which have been intended for and devoted to family use. Lord Nicholls pointed this out in Miller/McFarlane as follows:

“The parties’ matrimonial home, even if this was brought into the marriage at the outset by one of the parties, usually has a central place in any marriage. So it should normally be treated as matrimonial property for this purpose. ... in principle the entitlement of each party to a share of the matrimonial property is the same however long or short the marriage may have been.”

Baroness Hale agreed, describing the matrimonial home as a prime example of a capital family asset.”

Parties’ respective Open Proposals

8.  H asked for the former matrimonial home be sold within 3 months from the date of the Decree Absolute at a price either to be agreed between the parties or in accordance with the valuation report and the net proceeds of sale i.e. after deduction of the mortgage redemption money and all costs and expenses incidental to be shared equally between the parties.

9.  It is obvious that H seeks to reply on the principle laid down in LKW v DD.

10.  W on the other hand proposes that she shall pay HK$800,000 to H within 30 days from the date of the Decree Absolute and subject to the approval of the Housing Authority, H shall transfer all his interest and title in the former matrimonial home to W at nil consideration.

11.  W relies on a Minute of Agreed Order (“Draft Minute”) which was filed together with W’s Petition on 30 June 2015.  It was however never made as an Order of the Court.

12.  In the Draft Minute, it stated,

“在答辯人向呈請人及法院承諾，在最終離婚判令頒布之後的六個月內，有關呈請人與答辯人以聯權共有之物業即香港新界西貢將軍澳唐明街15號唐明苑X座X樓X室(Flat X on Xth Floor of Block X, Tong Ming Court, 15 Tong Ming Street, Tseung Kwan O, Sai Kung, New Territories, Hong Kong)（“該物業”）在得到房屋委員會或房屋協會的同意下（如有的話），答辯人須將該物業的所有權益及業權以無代價的情況下轉至呈請人名下，而答辯人須簽署所有有關該轉讓的文件包括轉讓契，而呈請人須負責在簽署本「在同意下作出的命令的記錄」後的所有有關該物業的所有按揭供款及轉讓的釐印費、開支及其他相關費用；

呈請人及答辯人雙方同意法庭頒出以下命令︰

1.   婚姻予以解除；

2.   在最終離婚判令頒佈之後的六個月內，有關呈請人與答辯人以聯權共有之物業即香港新界西貢將軍澳唐明街15號唐明苑Ｘ座Ｘ樓Ｘ室 (Flat Ｘ on Ｘ Floor of Block Ｘ, Tong Ming Court, 15 Tong Ming Street, Tseung Kwan O, Sai Kung, New Territories, Hong Kong)（“該物業”）在得到房屋委員會或房屋協會的同意下（如有的話），答辯人須將該物業的所有權益及業權以無代價的情況下轉至呈請人名下，而答辯人須簽署所有有關該轉讓的文件包括轉讓契，而呈請人須負責在簽署本「在同意下作出的命令的記錄」後的所有有關該物業的所有按揭供款及轉讓的釐印費、開支及其他相關費用；

3.   答辯人支付每年一元之象徵式贍養費予呈請人，直至在雙方在生之時，或直至呈請人再婚之日為止，以較短者為準。第一期款項將於最終離婚令頒佈日繳付；及

4.   法庭不就訟費頒布任何命令。”

13.  In the Opening Submission, Mr Tam representing W said,

“W seeks the Court to approve and order in terms of a set of Minute of Agreed Order signed between the parties dated 30 June 2015, which the parties agreed H shall transfer all his shares and interest…..whereas H now wishes to renege the Minute and invite the Court to apply 50/50 division of the Matrimonial Home.”

14.  W’s case is that H has surrendered all his interests in the former matrimonial home and by virtue of the Draft Minute, she should be entitled to the whole interest thereof.

15.  H on the other hand said that when he signed the Draft Minute, he was in a hurry and did not know what he was signing and he further denied that he had abandoned his interest in the former matrimonial home.

16.  Ms Lam representing H said in her Opening Submission;

“19. Before Chinese Lunar New Year in 2015, W passed some documents to H’s parents who brought them to Shenzhen for H to sign. H was told to sign the documents as they involved the divorce proceedings. H was never told that the documents where to part with his interest and share in the Former Matrimonial Home. H did not seek legal advice before he signed the documents from W through his parents as he thought the documents involved only the divorce proceedings. H was never explained by W or her solicitors (actually he did not meet them) the content, nature and legal effect of the documents he was asked to sign.”

17.  Ms Lam helpfully summarised the law in her Opening Submission.  She said that the Draft Minute is an agreement between spouses detailing the disposition of properties in the event of marital breakdown.  This type of agreement is commonly known as pre-nuptial or post-nuptial agreement.

18.  The leading authority is Radmacher v Granatino [2011] AC 534.

19.  In Hong Kong, in the case of SPH v SA [2014] 3 HKLRD 497, the Court of Final Appeal cited the following paragraphs with approval;

31. In Radmacher v Granatino …..The UK Supreme Court decided that, although it was the court and not any prior agreement between the parties which would determine the appropriate ancillary relief when a marriage came to an end, the rule that agreements providing for the future separation of the parties to a marriage were contrary to public policy was obsolete and no longer applied; the court should give weight to an agreement, made between a couple prior to and in contemplation of their marriage, as to the manner in which their financial affairs should be regulated in the event of their separation in circumstances where it was fair to do so; in appropriate circumstances, the court could hold the parties to the agreement even when the result would be different from that which the court would otherwise have ordered; on an application for ancillary relief the court should apply the same principles when considering ante-nuptial agreements as it applied to post-nuptial agreements.

33. In particular, an agreement would carry full weight only if each party had entered into it of his or her own free will, without undue influence or pressure, having all the information material to his or her decision to enter into the agreement and intending that it should be effective to govern the financial consequences of the marriage coming to an end; and the court should give effect to an agreement which was freely entered into by each party with a full appreciation of its implications unless in the circumstances prevailing it would not be fair to hold the parties to the agreement. Enforcement of the agreement could be rendered unfair by the occurrence of contingencies unforeseen at the time of the agreement or where, in the circumstances prevailing at the time of separation, one partner would be left in a predicament of real need while the other enjoyed a sufficiency.

34. The particular matters which were stressed by the Supreme Court were these.  The court when considering the grant of ancillary relief was not obliged to give effect to nuptial agreements—whether they were ante-nuptial or post-nuptial. The parties could not, by agreement, oust the jurisdiction of the court.  The court must, however, give appropriate weight to such an agreement.  But it was the court, and not any prior agreement between the parties, that would determine the appropriate ancillary relief when a marriage came to an end, for that principle was embodied in the legislation.”

Issue

20.  Have the tests which were laid down in the common law been satisfied so that this Court should give full weight to the Draft Minute?

21.  If not, how should the shares of the former matrimonial home be split between the parties?

Circumstances leading to H’s signing of the Draft Minute

W’s version, H’s reply and my view

22.  W said that because of H’s gambling habit, she had lent to H two separate sums of money in the amount of HK$80,000 and HK$150,000 respectively in April and December 1996 so that he could repay his debts. Furthermore, H also told W that he had cash flow problems and therefore he could not repay the mortgage and other expenses. W’s father therefore lent H two equal sums of HK$100,000 in August and December 1999. W further alleged that she had repaid some of the debts to other people on H’s behalf and as all the loan amounts carried interest and H failed to repay either the principal or interest, H therefore owed W, W’s Father and others as follows[2]:-

H向W借款記錄(“The Table”)

	日期	借款金額	利息	利息計算	借款資料
1	1996/4/1-2017/12/1	$80,000.00	8.00%	$138,667.00	H向W借款
2	1996/12/4-2017/12/4	$150.000.00	8.00%	$252,000.00	H向W借款
3	2006/5/2-2017/12/2	$40,000.00	8.00%	$37,067.00	代H向Jenny還款
4	2011/3/2-2017/12/2	$140,000.00	8.00%	$75,600.00	W代H付MNXXXX私家車賠償（私家車為H名下於唐明宛XXXX訂契）
5	2012/1/6-2017/12/6	$15,000.00	8.00%	$7,100.00	W代H向Angle Chan 還酒店欠款
6	2011/10/10-2017/12/10	$30,000.00	8.00%	$14,800.00	代H向王X還款
7	1999/8/17 -2017/12/7	$100,000.00	每月$1,500	$402,000.00	代H向W’s Father還款
8	1999/12/17	/	/	($5,000.00)	H付W’s Father利息
9	2000/6/17	/	/	($5,000.00)	H付W’s Father利息
10	2001/3/17	/	/	($3,000.00)	H付W’s Father利息
11	1999/12/11-2017/12/11	$100,000.00	每月$1,500	$396,000.00	代H向W’s Father還款
12	2006/6/11	/	/	($3,000.00)	H付W’s Father利息
欠款		$655,000.00		$1,307,234.00
H共欠W本金及利息		$1,962,234.00
1	2012/6/14	$20,000.00	/	/	代H向W’s Father還款
2	2013/2/10	$30,000.00	/	/	代H向W’s Father還款
3	2013/6/11	$30,000.00	/	/	代H向W’s Father還款
4	2014/6/3	$30,000.00	/	/	代H向W’s Father還款
5	2014/10/16	$100,000.00	/	/	代H向W’s Father還款
6	2015/2/18	$100,000.00	/	/	代H向W’s Father還款
7	2017/8/14	$100,000.00	/	/	代H向W’s Father還款

23.  H on the other hand only admitted that W had given him the sum of HK$150,000 but denied that he had ever borrowed the sum of HK$80,000.  He further denied that any of the loans carried interests.

24.  In his 2^nd Affirmation filed on 21 October 2021, H said that as W was only a student when they met each other.  On almost all occasions, it was him who brought money to go to Macau for entertainment[3];

“4.…由於工作關係經常來往港澳之間，幾乎每週一次進出澳門。期間，呈請人也有和本人一起去澳門遊玩拍拖，賭博娛樂。由於本人有收入，而且作為男朋友，每次都是本人帶本金去賭博娛樂，輸錢都是本人支出；如果嬴錢，本人都會把現金交由呈請人保管，作為我們將來結婚之用，呈請人亦表示支持本人為彼此將來著想的計劃。1996年，有次是本人和朋友前往澳門輸錢回來，本人向呈請人提出取出儲蓄款項還債。呈請人當時很生氣，說那是我們兩個人的錢，不同意取出儲蓄款項還債，並要求本人寫下借款條、保證書才能出錢。雖然這些錢根本就是本人的錢，只是當時由呈請人保管，但為了償還欠債，本人只能無奈接受呈請人提出的要求。她當時要求本人一個定期到期12月6日要先拿出來給她，所以才寫下這個借條。”

25.  For my part, H’s version is more credible.  W produced a document which is purportedly the loan agreement signed by H on 4 December 1996 setting out (i) the loan amount of HK$150,000; (ii) the repayment method, namely HK$50,000 was to be repaid on 6 December 1996 and the remaining sums were to be repaid by equal monthly instalment of HK$10,000 starting from December 1996.  There was another document which was labelled as a Declaration made by H also dated 4 December 1996 stating that H would never be engaged in any gambling activities again. The two documents made no mentioning of any interest.

26.  In any event, when W was cross-examined as to the issue, she admitted;

“問：呢啲利息佢同意？佢應承咗妳？

答：冇講過。

問：冇講過。即係妳自己...

答：除咗我阿爸...

問：妳自己加上去啫。

答：除咗我阿爸嗰個借錢。

問：嗱，我先講妳嗰兩個先。

答：係。

問：佢冇應承過嘅，你哋亦都從來冇講過嘅，係咪呀？

答：冇。[4]”

27.  As to why her loan to H carried interest, W said in her oral testimony;

“答：其實我當時借錢畀佢，係一齊--大家一齊生活嘅，咁佢有嘅時候應該係還畀我。咁但係而家佢又走咗去喇，跟住而家就要我分半層樓畀佢，咁即係話佢當時借我嘅錢係咪應該還番畀我？計番利息畀我？即係如果佢要咁樣做嘅話，我就需要咁樣做法先，保障我自己。[5]”

28.  I do not accept W’s loan to H in the sum of HK$150,000 carried interest.

29.  As to the loan of HK$80,000, H denied that he had ever borrowed that. 

30.  In Court, when W was cross-examined on that, she said;

“問: 我哋見到有個支出80,000鈫，係咪[6]？

答：係。

問：咁我哋亦都見到嗰度有個註項，係寫住T-I-M-E-D-E-P，係一個定期存款嚟㗎喎，即係呢筆數其實真實嘅情況就係80,000鈫轉咗入去妳自己喺銀行開設嘅定期存款80,000鈫喎，同唔同意呀？

答：係攞出嚟喎。

問：係呀，喺呢個戶口攞出嚟而擺落去一個定期存款吖嘛，所以銀行咪有個記賬叫“time deposit”囉。

答：係呀，我有80,000鈫嘛，因為。

問：係，不過呢80,000交就並唔係妳所講話借畀答辯人嘅，只不過係將呢筆款由呢一個戶口轉咗去做一個定期存款，而個定期存款亦都係妳閣下嘅，同唔同意呀？

答：同意。

問：所以妳根本係冇借過呢個80,000鈫畀答辯人嘅，同唔同意？

答：唔同意。

問：妳冇其他證據證明妳有畀過80,000鈫畀答辯人㗎喇，當時，係咪？

答：冇。[7]”

31.  As the burden of proof is on W who has failed to produce any evidence to support her case, I do not accept this loan of HK$80,000.

32.  As to the two loans borrowed from W’s father, although H admitted the same, he strongly denied that there was ever mentioned that those loans carried interest.

33.  In Court, when W was cross-examined by Ms Lam, she admitted that the two loan agreements with the wordings interests were not there when H signed them.  She said;

“問：喺呢份文件上面，左邊斜體字嗰啲字，係事後有人加上去嘅，就並不是當時答辯人借條上面嗰啲字嚟嘅，同唔同意呀？

答：同意。

問：吓？

答：同意。

問：同意。

答：呢個係我阿嫲寫上去嘅利息，佢收到錢嘅時候，我阿嫲啲字嚟嘅。

問：妳阿嫲啲字嚟嘅？

答：係。[8]”

34.  Although W when she gave her oral testimony said that 屋企人借錢冇寫(interest) 係正常, I do not believe her evidence.  If this is the case, why was there ‘black and white loan agreements’ in the first place.  It is also my view that for close relatives, HK$1,500 per month for the principal loan amount of HK$100,000 is on very high side.

35.  From the table above[9], the two sums of HK$100,000 borrowed from W’s father carried interests in the sums of HK$402,000 and HK$396,000 respectively.  As W admitted in her oral testimony that the loans were borrowed mainly for mortgage repayments of the former matrimonial home, it is my view that the alleged interest rate plus the mortgage loan interest would have made the monthly interest rate very high indeed.  I do not accept that the two loans from W’s father carried any interests.

36.  As to the other loans, I do not find them of any relevance to the present dispute.  However, I would just briefly cover them for the sake of completeness.

37.  As to the repayment of loan in the sum of HK$40,000 to Jenny under Item 3 of the Table, H’s case is that he had already paid W cash in the sum of HK$50,000 on 11 April 2006[10] whereas W denied and she queried why H did not pay to Jenny direct in that case.

38.  As to the repayment of the hire purchase of the vehicle under Item 4 of the Table, it is H’s case that it was purchased for the parties to use during the marriage but in view of his financial difficulties, he could not afford to pay for the hire purchase.  W on the other hand insisted that the car was purchased for H’s business.

39.  For my part, I make no findings as to who was telling the truth but I notice that there has not been any evidence produced that the two loans carried 8% interest.

40.  As to the repayment of the loan to Angle Chan under Item 5 of the Table, W when cross examined by Ms Lam said,

「問：事實上第三筆款項40,000鈫，我哋就話一早已經畀咗錢妳喇，妳就將畀咗妳嘅錢就去畀咗Jenny嘅啫。而黃X嗰筆款項30,000鈫，我哋嘅講法就係話唔係欠款嚟嘅，係妳自己--頭先妳自己嘅證供都話喇，係妳自己借畀黃X嘅。好喇，而家我哋講一講一筆妳話代答辯人向Angel Chan（?）還酒店欠款15,000鈫，第5個項目，見唔見到？

答：係。

問：係喇，事實上呢筆錢，係當陣時答辯人同佢個拍檔經營嗰間公司欠呢一個Angel Chan嘅錢嚟嘅，係咪？

答：係。

問：唔，就並唔係答辯人私人欠Angel Chan錢嘅，係公司欠佢錢。

答：公司係答辯人嘅。

問：答辯人同埋佢拍檔開嗰間公司吖嘛，係咪？係咪呀？

答：係。

….

問：而答辯人或者佢拍檔，亦都從來冇要求妳代佢哋或者公司係找呢筆數嘅，啱唔啱？

答：係。

問：答辯人更加唔知道妳找呢筆數畀Angel Chan嘅，啱唔啱？妳冇講過吖嘛。

答：係，答辯人因為走咗去，佢啲債主走晒嚟追我，咁我都要生活㗎，我都要供樓㗎，我都要搵錢㗎，咁我冇個環境，冇個地方畀我去搵錢㗎喇喎，我冇工返㗎喇喎，失業㗎喇喎。

41.  Again, I find no evidence that the loan carried interest and I therefore do not accept any of the interest payments.

42.  As to the loan to 王X, W when cross-examined by Ms Lam said,

「問：即係其實妳都唔知究竟王X講嘅係真定假喎。佢話答辯人爭佢錢，妳冇任何嘅證據去證明妳自己借錢畀佢。

答：答辯人--答辯人爭王X嘅錢，我點會有證據呀？

問：咁黃X有冇畀妳睇到任何證據證明答辯人爭佢錢呢？

答：冇，不過佢經常打電話畀我。

問：唔。

答：好耐，好多。

問：佢就--佢就搶咗你哋部車喇，啱唔啱呀？

答：係。

問：所以妳根本唔知道究竟答辯人係咪真係爭王X錢。

答：唔知，嗰個...

問：所以呢30,000鈫係妳自己借畀王X嘅，同答辯人係冇關係嘅，同唔同意呀？

答：唔同意。

問：而答辯人亦都從來冇叫妳還錢畀王X嘅，啱唔啱呀？佢從來冇交代過「喂，妳幫我還錢畀王X喇，嗰30,000鈫，之後我畀番妳喇」，答辯人從來冇咁講過嘅，同唔同意呀？

答：同意。”

43.  In view of W’s oral evidence, I do not accept that the loan (if any) carried interest as alleged.  Furthermore, I also do not accept that the payments to any of the third parties by W were the loans repaid by W on behalf of H.

44.  W said in her affirmation because of H’s financial difficulties, he told W that[11],

「17. 約2007年1月，本人發現答辯人有第三者及與他人同居。之後，答辯人在深圳弟弟家告知本人他已再沒有能力供樓或婚姻居所的開支，亦不會再承擔任何的支出，更明言婚姻居所起的任何責任他均不會負責，若果我希望繼續持有婚姻居所，我便需要自己負責婚姻居所的所有費用，我記得當時答辯人的說話大概是「我無錢嫁喇」、「層樓有咩事我都唔負責」、「層樓你要你嘅事，以後你自已咩，我唔負責」（"答辯人的陳述"）。當時我對答辯人的說話心灰意冷，覺得答辯人對我及對婚姻居所單單一句就離開，揮一揮衣袖不帶走一片雲彩是不負責任的。於是，我便一人回到香港找工作。由此刻起，香港的所有費用包括本人及婚姻居所供樓的費用及所有開支都是本人自己支付的。我和答辯人自此沒有再一起生活過。

45.  H on the other hand said[12]

15.     …「夫妻本是同林鳥，大難臨頭各自飛」，在本人最困難的時候，呈請人多次推卸夫妻共同責任。利用了本人作為閩南男人應該全力養家的傳統及風俗，多次為難本人。呈請人說的之後都是她支付供房開銷完全是磨滅事實，本人父母一直幫到2009年，他們倆老身邊現金存款使用完，他們揭力想保留兒子（即本人）的唯一資產，最後更決定賣掉兩老賴以生活的唯一套房子，賣樓錢拿來幫本人及呈請人一直供款到2011年年初。「層樓有咩事我都唔負責」、「層樓你要你噶事，以後你自己咩，我唔負責」這些話本人沒說過，只要想一想，如果這是本人當時的態度，本人又怎會要求本人父母幫忙供樓多年，他們甚至賣掉自己的老房子幫助本人及呈請人。呈請人大話連編，生安白造。

46.  In my view, there is no dispute that H’s parents had been assisting in the repayment of the mortgage of the former matrimonial home.  According to W’s Affirmation filed on 10 August 2021, she said[13];

19 …在雙方分居後，本人曾嘗試經營生意但最終失敗。由2007年7月至2010年10月左右，本人的資金周轉不靈，需要現金流，於是，我向答辯人父母借了合共港幣183,859.94元的貸款用以應付周轉。

47.  According to H however, he said that his parents had been burning up all their savings in order to help them.

48.  In my view, if the parents had been assisting the repayment of mortgage whether by way of a loan as alleged by W or by way of love and affection as alleged by H at least up to October 2010 (in accordance with W’s version), I simply do not accept that H would have abandoned his interests in the former matrimonial home in 2007.

49.  As to whether H has entered the Draft Minute under free will and with proper legal advice, the obvious answer must be no.

50.  Both parties had no dispute that it was H’s mother who gave the divorce paper to H for his signature.  H’s mother in her Affirmation dated 5 August 2021 said[14],

“9. 在2015年年初，呈請人知道答辯人在柬埔寨返回深圳，呈言人便急急忙忙拿來給本人叫本人拿給答辯人簽名，說是要辦理離婚的，但沒有對本人說如何分產權；因本人相信呈請人說話，只是叫我們叫答辯人簽第三頁她劃好的指定位置。當本人見到答辯人，本人就快快拿該文件給答辯人簽字，那份離婚文件本人都沒有看到有關第一頁產權分隔的頁面。”

51.  Mr Tam in his Closing Submission submitted that,

“51. The Minute is drafted in Chinese and consists of only 3 pages (while the 3^rd page is the back sheet only). At the very heading of the 1^st page reads” 香港特別行政區區域法院婚姻訴訟” and the words “法院:” and “法庭” appeared repeatedly over every of the three pages. H made 2 signatures as well as his HKID number to the Minute.

52. In view of these particular features of the Minute, any reasonable and honest person could hardly deny the obvious significance and seriousness of the document before signing it twice and even put down ones’ HKID. Further, the issue of division of the Matrimonial Home appeared at the preamble and paragraph 2 of the Minute over the end of 1^st page and top of 2^nd page of the Minute, with the address of the Matrimonial Home shown in both Chinese and also in English. This address was the only two lines of English in the Minute that it is hard to argue unnoticeable.

53.H’s case is simple. H did acknowledge before he signed the Minute, he knew it is divorce related document (original: “離婚文件”), however H claimed when he signed the document, he did not see any wordings relating to court nor the Matrimonial Home (“並沒有看到任何法院字樣或有關婚姻居所分配事宜”), contrary to what is shown on the Minute.”

52.  With respect, I disagree.  From the Draft Minute, one of the signatures H put down was underneath the following clause: -

“本人H，確認本人清楚明白上述文件的內容，並確認在簽署上述的同意頒令前，葉謝鄧律師行已向本人解釋本人有權尋求獨立之法律意見，本人自願決定不尋求獨立之法律意見。” (“The Clause”)

53.  It is not in dispute that H did not sign the Draft Minute in Messrs Yip, Tse & Tang (“the law firm”).   The Clause therefore is an incorrect statement and yet H still signed on it.  It is my view therefore that H’s version is credible.

54.  In any event, it is not in dispute that the only family asset is the former matrimonial home.  If H were to transfer his interest wholly to W, why does W still want HK$1 nominal maintenance given that H and W were only 45 and 42 years of age respectively with no children.

55.  I therefore accept that H did not know what he was signing.

56.  Mr Tam also submitted,

“54. Whereas H’s mother claimed that W provided the Minute and asked her for H’s signature. H’s mother even claimed W asked the Husband to sign on the 3^rd page of the Minute, but the truth is the signature page was in fact on the 2^nd page while the 3^rd page is the back sheet. The Husband’s mother claimed she therefore passed the Minute for H to sign which she personally never saw the division of the Matrimonial Home on the 1^st page.”

57.  With respect, where the Draft Minute only contains 3 pages and H’s mother got mixed up as to which page is the signature page reinforced my view that H’s mother did not look into details as to the Draft Minute.

58.  In the light of the reasons which I have given, this Court would not give any weight to the Draft Minute.

How should the share of the former matrimonial home be split between the parties?

59.  Mr Tam submitted in his Closing Submission,

“92. It is undisputed by H that since no later than January 2011 till this date, all payments of the Matrimonial Home, including the monthly mortgage repayment, were paid solely by W. After long separation of the parties, without any help or contribution from H or H’s parents, W by herself bore the burden to repay each and every month of mortgage for over 10 years.”

60.  I agree.  However, since the purchase of the former matrimonial home from March 1999 up to the end of 2006, H was the one who was responsible for mortgage repayment and most of the household and family expenses. 

61.  As from 2007 onwards, Ms Lam in her Closing Submission submitted,

“29…..W simply said 2007年7月至2010年10月左右, 本人的資金周轉不靈, 需要現金流, 於是我向答辯人父母借了合共港幣183,859.94元的貸款用以應付周轉”. It is a bare assertion devoid of particulars and is uncollaborated. If it was a personal ‘loan’ from H’s parents to W, why the ‘loan’ was in odd figures? If it was really a ‘loan’, why H’s parents not advanced a lump sum to W in one go but instead took the trouble to deposit money (cash) into the mortgage account monthly or periodically? It is submitted that W’s assertion does not make good sense.”

62.  I agree in its entirety.

63.  Ms Lam also submitted in her Closing Submission,

“33. It is submitted that the Court is entitled to treat the financial assistances of H’s parents at the material times i.e. the mortgage repayments for FMH from 2007 to 2010 paid by H’s parents, in the same way as if they were H’s contribution to the FMH and the family as a whole in light of s7 of MPPO. It would be entirely up to H to reimburse or repay his parents.”

64.  I share her view.

65.  Mr Tam in his Closing Submission submitted,

“90. As at 31 October 2010, the market value of the Matrimonial Home was only around HK$1,990,000 which the unpaid mortgage loan was HK$784,434,51, if the Matrimonial Home was sold within those months (say no later than March 2011, being after H’s parents ceased to provide finance or W refused to discharge the charging order), assuming there was no related expenses at tall such as legal fees nor even need to repay the lease company, the sale proceeds only amounted to HK$1,205,565.49, which H and W would have gotten approximately HK$600,000 each only.”

66.  For my part, I disagree with the argument which is purely hypothetical.  The fact is that the former matrimonial home has not been sold.

67.  Although W has been solely responsible for mortgage repayments since January 2011 which is around 11 years, H together with his parents had been responsible for most of the mortgage repayments from 1996 to 2010 which was 14 years.  Furthermore, W has been living in the former matrimonial home rent-free up to now.

68.  It is my view that both parties together with the support of the respective parents had made contributions to the former matrimonial home.

69.  In the light of the reasons that I have given, I see no reason why I shall depart from the principle laid down in LKW v DD.

70.  Therefore, the former matrimonial home is to be sold within 3 months from the date of the Decree Absolute at a price to be agreed between the parties or in accordance with the valuation report and the net proceeds of sale after deduction of the mortgage redemption money and all costs and expenses incidental to be divided equally between the parties.

Costs

71.  As I am in favour of H, costs should follow the event.

Order

72.  (i) The former matrimonial home be sold within 3 months from the date of the Decree Absolute at a price to be agreed and if not in accordance with the valuation report and the net proceeds of sale after deduction of the mortgage redemption money and all costs of and expenses incidental thereof to be divided equally between the parties;

     (ii) There be liberty to apply;

     (iii) The Petitioner do bear the costs of and incidental to these proceedings including all costs reserved with Certificate of Counsel, to be taxed if not agreed.