LFT v. LCL

FCMC 11075/2018

[2019] HKFC 264

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES NO 11075 OF 2018

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J U D G M E N T

(Maintenance pending suit)

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The Application

1.  This is the application taken out by the petitioner wife (“Wife”) against the respondent husband (“Husband”) for maintenance pending suit in the monthly sum of HK$3,000 for herself.

2.  The Husband opposed to the application.  He is of the view that no maintenance pending suit should be paid to the Wife.

Background of the case

3.  The Husband was born in 1973 and is now 46 years old.  He is employed as a captain trainee in a local ferry company.  As stated in his Form E, he is earning, in average, a monthly salary of HK$16,954.

4.  The Wife was born in 1980 and is now 39 years old.  She is working as a part-time salesperson. As stated in her Form E, she is earning, in average, a monthly salary of HK$4,545.

5.  In 2009, the parties were married in Hong Kong.  Two children were born in the wedlock, namely the elder son, who is now 9 years old, and the younger daughter, who is now 6 years old (collectively “Children”). 

6.  During the marriage, the parties and the Children had lived at a rented flat in Kwun Tong (“Former Matrimonial Home”).

7.  The parties started separation since about June 2016, with separate lives under the same roof.

8.  The Husband moved out of the Former Matrimonial Home in about October 2017.  Since then, the Children have been living with the Wife. 

9.  The Wife filed the Petition for divorce on 29 August 2018 based on 2-year separation.

10.  During the 1^st Appointment Hearing on 12 November 2018, the Husband was ordered to pay interim maintenance in the monthly sum of HK$6,000 for the Children.  The Wife did not apply for interim maintenance and no interim maintenance had been ordered for the Wife.

11.  Decree nisi had been granted on 1 February 2019.

12.  On 30 January 2019, the Wife took out the present application for interim maintenance for herself.

13.  It is not in dispute that the Wife has moved into a public housing with the Children on 13 July 2019, with a monthly rental of HK$2,285.

The legal principles

14.  Under section 3 of the Matrimonial Proceedings and Property Ordinance, Cap. 192 (“MPPO”), the court may order either party to the marriage to make to the other such periodical payments for his or her maintenance and for such term, being a term beginning not earlier than the date of presentation of the petition or the making of the application and ending on the date of the determination of the suit, as the court thinks reasonable. 

15.  The legal principles governing any maintenance pending suit application require the court to balance the reasonable needs of the applicant spouse (and the concerning children where applicable) against the paying spouse’s ability to pay by using a broad brush approach.  In HJFG v KCY [2012] 1 HKLRD 95, the Court of Appeal has summarised the established principles as follows:-

“33. Jurisdiction to award maintenance pending suit to a spouse is statutory, being governed by the provisions of s.3 of the Matrimonial Proceedings and Property Ordinance, Cap. 192. By that section the court is given a discretion to make an order requiring either party to the marriage to make to the other such periodical payments for his or her ‘maintenance’ as the court thinks ‘reasonable’, subject to the condition that the duration of any such order is limited to the period of what may broadly be called the divorce litigation.

34. By definition, therefore, maintenance pending suit is restricted to payments which constitute ‘maintenance’, which are reasonable in the circumstances and which will endure for no longer than it takes to determine the divorce litigation. ‘Maintenance’ is a broad concept. I do not seek to define its exact meaning but it seems to me that it must be restricted to those payments necessary to meet the recurring costs of living at whatever standard of living is appropriate. That being the case, no matter how great the wealth of the parties and how unevenly distributed that wealth may be at the time an application for interim maintenance is made, the court has no jurisdiction to make orders which for all practical purposes result in a form of pre-trial capital rebalancing. In the present case, the Judge recognised the long-established approach of looking to the ‘immediate and reasonable needs’ of the wife and son.

35. As to the amount of maintenance pending suit that may be paid, the Ordinance provides only that it must be ‘reasonable’, that is, having regard to the circumstances of the case, that it must be fair.

36. An important factor in determining fairness is a consideration of the marital standard of living. In this regard, each case must be considered according to its own circumstances. It is not simply to be assumed that great wealth equates to great extravagance. Some married couples who enjoy great wealth spend with comparative modesty and with a discipline born of discretion, others enjoy consumption on a grand scale.

37. The principles that have emerged over time to guide judges in matters of interim maintenance have been fashioned in the main to ensure fairness. This is well illustrated in the judgment of Nicholas Mostyn QC, sitting then as a Deputy Judge, in TL v ML [2006] 1 FLR 1263, 1289, in which, having looked at earlier authorities, he derived the following principles that speak specifically to fairness or are based on the need to ensure it. For present purposes, it is sufficient to cite the relevant principles without citing the Judge’s reference to the source of those principles:

(a) The sole criterion to be applied in determining the application is ‘reasonableness’, which is synonymous with ‘fairness’.

(b) A very important factor in determining fairness is the marital standard of living. This is not to say that the exercise is merely to replicate that standard.

(c) In every maintenance pending suit application there should be a specific maintenance pending suit budget which excludes capital or long-term expenditure, more aptly to be considered on a final hearing. That budget should be examined critically in every case to exclude forensic exaggeration.

(d) Where the affidavit or Form E disclosure by the payer is obviously deficient, the court should not hesitate to make robust assumptions about his ability to pay. The court is not confined to the mere say-so of the payer as to the extent of his income or resources. In such a situation, the court should err in favour of the payee.

38. Finally, it is to be noted that in applications for interim maintenance, when the amount to be paid is for a limited period only and not all of the evidence is necessarily before the court, it is not appropriate, nor indeed in most cases possible, for the court to conduct a detailed investigation into the finances of the parties.  While, in order to determine what is or is not reasonable, some analysis is always required, that analysis can be conducted on a ‘broad-brush’ basis.”

The Wife’s case

16.  According to the Wife, as she is earning only a few thousand Hong Kong dollars, together with the HK$6,000 interim maintenance from the Husband, it is not sufficient to cover the family expenses.  She said she has been using her savings and borrowing money from her family for the shortfall.  It is the Wife’s case that she had almost used up her savings.  As shown in her Form E, the total bank balance is HK$42,554.  As shown in the bank statements attached to her affirmation, the more updated total bank balance is about HK$24,749. 

17.  As the Wife has moved into a public housing unit with the Children on 13 July 2019, she said there are renovation expenses incurred, in the sum of about HK$220,000.

18.  The Wife has no property or other valuables, except some bracelets and gold chain in the estimated value of HK$30,000.  As shown in her Form E, she has debts in the total sum of HK$92,630, owed to her sister and her friend.

19.  The expenses of the Wife is shown in her Form E, with general expenses of HK$14,000, personal expenses of HK$4,600 and Children expenses of 2,600, making it the total monthly expenses of HK$21,200.  After moving into the public housing, the monthly rental expenses have decreased from HK$4,000 to HK$2,285, making the total monthly expenses reduced to HK$19,485.

20.  The Wife is of the view that the amount of HK$3,000 she now claims as interim maintenance for herself is reasonable and the Husband has the ability to pay.

21.  As shown in the Wife’s Form E, the family had been living at a rented flat of about 320 square feet.  No maid had been employed and the family seldom go for holiday.  Regarding the marital standard of living, from the evidence before me, I am of the view that the family had enjoyed an average or slightly below average standard of living during the marriage.

The husband’s case    

22.  According to the Husband, the salary he earns comprises of basic salary, overtime payment, bonus and allowances.  Only basic salary and allowances are fixed, while overtime payment and bonus are discretionary and not certain.  According to the Husband’s affirmation, the monthly basic salary and allowances has increased slightly from HK$13,616 (HK$8,898 + HK$4,718) to HK$14,161 (HK$9,076 + HK$5,085) since 1 January 2019.  But the overtime payment will be greatly reduced due to sufficient staff being recently employed, and there is no longer the need to work overtime.

23.  The Husband has no property or other valuable assets, except his Mandatory Provident Fund with current value of about HK$34,501.  As shown in his Form E, his total bank balance is HK$8,532 and he has debts in the total sum of HK$255,000, owed to his parents.

24.  The Husband’s expenses are shown in his Form E, comprising of general expenses of HK$3,300 and personal expenses of HK$7,010, making it a total of HK$10,310 (monthly interim maintenance of HK$6,000 to the Children not yet included).  In addition, as explained in the Husband’s affirmation, his monthly rental expenses have increased from HK$2,000 to HK$4,000, and there are some expenses he expects to increase, such as about HK$250 to HK$400 per month that he estimates to spend while he has access to the Children.  According to the Husband, together with the payment of interim maintenance as ordered by the Court in the monthly sum of HK$6,000, he could not afford to pay extra interim maintenance to the Wife. 

Discussion

25.  The first issue the Court has to consider is what the reasonable expenses are for the Wife and the Children with reference to the marital standard of living. The Wife’s expenses are stated in her Form E, with the total expenses being HK$19,485 (HK$12,285 + HK$4,600 + HK$2,600), which is now summarised below (with the rental expenses updated) :-

     For general expenses:-

Items	Amount HK$
Rent	2,285
Utilities	1,000
Food	6,000
Miscellaneous household expenses	3,000
Total:	12,285

     For personal expenses:-

Items	Amount HK$
Meals out of home	2,200
Transportation	900
Clothing / Shoes	500
Personal grooming	500
Entertainment / presents	100
Holiday	100
Medical / dental	300
Total:	4,600

     For Child expenses:-

Items	Amount HK$
School books and stationery	200
Transportation	200
Medical / dental	400
Extra-curricular activities	500
Entertainment / presents	200
Holiday	200
Clothing / shoes	500
Other transportation	100
Uniform	200
Others (watch and telephone expenses)	100
Total:	2,600

26.  Looking at the expenses as stated by the Wife in her Form E, I am of the view that some of the expenses are exaggerated.  With the financial difficulties as alleged by the Wife, food expenses of HK$6,000 per month under general expenses, while the Wife is also claiming an additional item of personal expenses of HK$2,200 for food, is excessive.  With no adjustment on the amount of food of HK$2,200 under personal expenses, I am of the view that the reasonable food expenses under general expenses should be HK$3,000.

27.  Besides, I am of the view that, with a household of 3 and with the ages of the Children of only 9 and 6, utilities of HK$1,000 per month and miscellaneous household expenses in the sum of HK$3,000 are excessive.  With a broad brush approach, I am of the view that the reasonable expenses for utilities and miscellaneous household expenses should be HK$800 and HK$1,000 respectively.

28.  I accept, at this interim stage, that the general expenses be HK$7,085 (rent of HK$2,285 + utilities of HK$800 + food of HK$3,000 + miscellaneous household expenses of HK$1,000).  The Wife’s personal expenses of HK$4,600 and Children expenses of HK$2,600 are also accepted at this interim stage.

29.  The Wife’s financial background can be referred to in paragraphs 16 to 21 above. According to the Wife’s affirmation, she is now earning less than HK$4,545 as she stated in her Form E.  She had attached a letter dated 31 March 2019 exhibited to the affirmation, showing that her salary in average from between October 2018 and February 2019 is only HK$3,347 per month.

30.  Besides, as shown in the Wife’s form E, she has been receiving the Working Family Allowance of HK$15,800 and the Finance Assistance for Primary School and Secondary School Student, which was in the sum of about HK$4,564, as submitted by the Husband’s solicitors with reference to the information from the government website.

31.  The Husband disputes the Wife’s actual salary, her ability to work and her earning capacity, as the Wife confirms that her employer is a company controlled by his brother.  The Husband believes that the Wife’s income should be much more.  The Husband also suspects the whereabouts of a total sum of withdrawal of over HK$200,000 as shown in the Wife’s bank statement in November 2017.

32.  The second issue the Court has to consider is the Husband’s ability to pay.  When considering the ability to pay, it is necessary to consider the Husband’s financial background, which is summarised in paragraphs 22 to 24 above. 

33.  From the bank statements attached to the Husband’s affirmation, his salary in average from September to December 2018 is HK$15,295 per month ((HK$14,889 + HK$14,364 + HK$17,477 + HK$14,453) / 4), which is less than the amount stated in his Form E.  In his affirmation, the Husband explained the reasons why, which is summarised in paragraph 22 above. 

34.  The Husband’s expenses are stated in his Form E, with the total expenses being HK$10,310 (HK$3,300 + HK$7,010), which is now summarised below :-

     For general expenses:-

Items	Amount HK$
Rent	2,000
Utilities	200
Management fees	100
Food	1,000
Total:	3,300

     For personal expenses:-

Items	Amount HK$
Meals out of home	2,200
Transportation	1,000
Clothing / Shoes	1,000
Personal grooming	700
Contribution to parents	2,000
Mobile monthly fees	110
Total:	7,010

35.  The Husband explains that since the Court has ordered that interim payment to the Children of HK$6,000 per month, the Husband has not been paying money to his parents or repayment of debts to his parents. 

36.  According to the Husband, the monthly rental he has to pay now has increased from HK$2,000 to HK$4,000 per month.  Looking at the monthly expenses of the Husband, the items could not be viewed as excessive. 

37.  Although I have reservation of the sum of HK$1,000 for clothing and shoes, and HK$700 for glooming, I notice that the Husband has not claimed any amounts for entertainment or gifts, holiday, medical or dental.  On a broad brush approach, I accept the total sum of 5,010 for personal expenses is reasonable.

38.  I also have reservation that expenses of food under general expenses is HK$1,000, with an additional expenses of meals out of home being HK$2,200.  But I notice that the Husband has not claimed any for miscellaneous household expenses.  With the broad brush approach, I am not going to make any adjustment.

39.  In fact, solicitors for the Wife has agreed that total monthly expenses of the Husband of HK$8,310 (excluding the HK$2,000 to the Husband’s parents) is reasonable.

40.  The Wife has criticised the reasonableness of the increase of the Husband’s rental expenses from HK$2,000 to HK$4,000.  Although some concern has been raised, I notice that the Husband has produced documentary evidence of the existing tenancy agreement, showing that the current rental is HK$4,000.  At this interim stage, without cross-examination of witnesses, credibility of a witness could not be tested.  With a broad brush approach and with documentary evidence provided by the Husband, I am of the view that it is not unreasonable to rent a modest place with HK$4,000 per month.  I am not prepared to investigate further the issue of rental expenses of the Husband at this interim stage and I accept that monthly rental of HK$4,000 is reasonable.

41.  The Wife points out that the Husband had not been paying any money to them until the order for interim maintenance dated 12 November 2018.  She also criticises that as shown in the Husband’s HSBC bank statements, for the period from April 2018 to October 2018, the average monthly deposit maintained at the account amounted to around HK$56,132.87, but the deposit suddenly dropped to HK$7,032 in November 2018 and HK$5,488 in December 2018.  The Wife suspects that the Husband has been dissipating money to avoid paying maintenance as requested by the Wife.

42.  The Court has to point out that at this stage, the Court will adopt a broad brush approach.  Detailed investigation of the finance of the parties are not to be conducted.  Although some analysis has to be made by the Court, without cross-examination of witnesses, the factual determination in relation to the disputed issues of dissipation of money as alleged by both parties should be canvassed at the ancillary relief trial, if the case cannot settle.

43.  To conclude, considering the expenses of the Husband, as agreed by the Wife that HK$8,310 is a reasonable sum, and taking into account that I have accepted at this stage that rental expenses of HK$4,000 is reasonable, I accept that the Husband does not have the ability to pay for the Wife’s interim maintenance, bearing in mind that the Husband is now paying interim maintenance of HK$6,000 per month for the Children.  According to the Husband, if there is shortfall, he is financially relying on the assistance from his parents.

44.  Without the Husband’s support for interim maintenance for the Wife, I understand that there will be shortfall.  The Wife has also been receiving financial assistance from the government, as I have summarised in paragraph 30 above.  I notice that it is the Wife’s case that her family and friend have been helping her financially.  I have to point out that the ability to borrow is also considered as financial resources.

45.  Having considered all the evidence before the Court, the background of the parties and the circumstances of the case, together with submissions of the parties, I am of the view that no interim maintenance should be paid to the Wife, and therefore her application is dismissed.

46.  There is one observation I have to make.  As both parties are on legal aid, both parties allege that means cannot meet the ends, and both parties state that they have to borrow money from their family and friend, the parties are encouraged to be practical and consider mediation to resolve all the disputes in this case, including the disputes about children matters as well, in order to save costs and in the interest of all parties, including the interest of the Children.

Orders and Costs

47.  With the reasons aforesaid, the Wife’s application is dismissed. 

48.  I see no reason why costs should not follow the event.  I order that the Wife do pay the Husband’s costs of and occasioned by the application, including all costs reserved for the application of interim maintenance, to be taxed if not agreed.  Both parties’ own costs to be taxed in accordance with Legal Aids Regulations.  This is costs order nisi, which shall be made absolute within 14 days.