TWAMA also known as WAMA v. T, DJ-PF

FCMC 13094 / 2012

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES

NUMBER 13094 OF 2012

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

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Introduction

1. This is an application by a Petitioner wife for maintenance pending suit pursuant to s.3 Matrimonial Proceedings and Property Ordinance Cap 192 (MPPO) and interim maintenance for the two children of the family under s.5 of the same ordinance. This matter first came before me on an urgent basis on the 21 June 2013. On that occasion I made an interim interim order as follows:

Upon the Respondent’s undertakings as set out in paragraph 2 above

1)   The Respondent shall pay interim maintenance pending suit to the Petitioner for herself in the sum of HK$10,000 per month, the first payment to be made on the 1 June 2013 and thereafter to be paid on the 1st day of each succeeding month until further order.

2)   The Respondent shall pay interim interim maintenance to the Petitioner for the two children of the family in the sum of HK$10,000 per month per child the first payment to be made on the 1 June 2013 and thereafter to be paid on the 1^st day of each succeeding month until further order.

2. The husband had, at that stage, undertaken to continue to pay the rent on the former matrimonial home, the utility bills on the former matrimonial home, the children’s school fees, any school trips, all other school related expenses and for any fees connected to the children’s extracurricular activities.

3. The order was made on the premise that the matter would return to court for full argument on the 3 September. The Petitioner wife is acting in person and has done so for some time. The respondent husband was previously represented and is now also acting in person.

Housing 

4. As set out in my previous judgment of the 24 June 2013, the parties are both French. The husband is in Hong Kong as an expatriate. He works for a well known corporate in the cosmetics field. Consequently he benefits from a full expatriate package including housing, the payment of school fees, medical and dental insurance, a company car, one round trip business airfare to France for him and the family, a discretionary bonus and 13 month’s salary. Unfortunately the husband had not produced a copy of his employment contract evidencing this or anything from the company confirming this to be the case. However these benefits did not seem to be seriously challenged by the wife. Indeed the wife’s claim is based on an estimate of the monetary value of that package. The husband says that post separation and/or divorce that he will not be entitled to the same kind of housing and that his housing allowance will be reduced to that of a single man. The precise time frame for that alteration is unknown. However I would accept that it is more likely than not that the husband’s package is based on his family status. He says that as a single man he will receive a housing allowance of HK$35,000, whereas a family of four children will receive a housing allowance of HK$90,000 per month. Historically the parties have received a housing allowance of approximately HK$65,000 per month.

5. This is relevant given that following the parties’ separation the husband moved into alternative accommodation and took out a lease in his sole name at a cost of HK$50,000 per month. The husband has only produced the first page of that tenancy agreement. But it appears from that that the tenancy commenced on the 1 September 2012 and that it is due to expire on the 31 August 2014. The husband confirmed that there was a standard break clause in that lease and that he was able to give one months notice to terminate in November. Consequently the husband should be able to terminate the lease within a relatively short period of time.

6. The wife for her part continues to live in the former matrimonial home with the two children of the family. She wishes to move to alternative accommodation – either nearer to the children’s school or to a child friendly environment like Discovery Bay. The children are at an  International School. The lease for the matrimonial home has come to an end but the husband has negotiated an extension on a month by month basis. The lease is in the name of his company and the rental has been increased to HK$67,500 per month on an interim basis.  The husband said notice needs to be given two weeks before the end of the month in which the lease is due to terminate. The wife suggests that as an alternative that the husband gives up his present tenancy and that he move back to the former matrimonial home and that she then moves out. It seems to me that this may be an option worth considering. Alternatively the husband may wish to stay in his present accommodation. In any event this order will be made on the premise that the husband has those options in the short term at least but that he is also able to terminate the tenancy of the lease in his own name in November. Thus this order will take effect from the 1 December 2013. This will also give the wife sufficient time to find alternative accommodation and to arrange the move in a sensible manner prior to the Christmas break.

The main issues

7. The main issue, apart from housing, is simply this. How much should the husband now pay to the wife for her maintenance pending suit and how much should he pay for the interim provision of the children pending either full agreement on all matters or court order.  

The law

Maintenance pending suit

8. To reiterate what was said in my earlier judgment - the ordinance 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.  (See s. 3 and 5 MPPO Cap. 192). 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.

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

How much maintenance should the husband pay to the wife as maintenance pending suit for herself and interim maintenance for the two children of the family?

9. The wife is seeking HK$100,000 per month on the premise that this represents approximately 1/3 of the husband’s total package. She asks for HK$45,000 per month to cover her rental and she says that she will be able to cover all the remaining expenses from the sum that is left. She asks in particular that she be given the opportunity to arrange all of the children’s extracurricular activities and she also complains about not having access to a car.

10. The husband for his part says that he is willing to continue to undertake to pay for the children’s school fees, to pay for any school trips, all other school related expenses and for any fees connected to their extracurricular activities. However he does wish to be involved with the decision making surrounding these things. I accept that that is reasonable and that the husband’s undertaking to pay for school trips, school related expenses and for the children’s extracurricular activities is subject to the parties agreeing on these matters ahead of time. The parties should consider setting up a dedicated e-mail account for that purpose. The husband is willing to undertake to pay for the children’s school fees. He wishes to be released from his undertaking to pay for the wife’s utility bills. I accept that would be a reasonable stance to take once the wife has moved out of the former matrimonial home. 

11. The husband also makes the point that the order should be based on his actual income as opposed to his package. He says that he is earning HK$136,000 per month net. I accept that to be roughly the case. In my original order I said that the husband was earning in the region of HK$138,500 per month which rose to approximately HK$206,000 if one takes into account double pay, bonus etc. I accept however that the husband’s bonus is discretionary save for the 13 month salary. The husband says that he did not receive a bonus this year. I am therefore proceeding on that premise. No doubt this will be confirmed in due course. I will wish to receive confirmation from the husband’s head office to this effect. 

12. The husband has two other main concerns. He maintains that the wife may be earning more than she says that she is. He bases this on the fact that the wife’s company was set up in August 2012 and that her income should therefore be spread over a relatively shorter period of time than had originally been thought. The wife maintains that she is earning a fairly minimal income as a freelance designer. Time will tell whether or not this is correct. The husband also says that my original approach in assessing the wife’s income was flawed in that it did not take into account the amount of money spent by the wife on legal fees. I accept that to be the case.

13. Having said that it is clear that going forward both sides will need to cut their cloth according to the funds that are available. I will therefore make an order that the husband do pay the wife a total of HK$65,000 per month – HK$25,000 per month for herself and HK$20,000 per month for each of the two children of the family with effect from the 1 December 2013. Given that both sides have allegedly taken some funds from joint savings, I will not make any order in relation to additional funds for deposits etc. I have calculated this on the premise that the wife will need HK$35,000 per month as rental. The husband will be able to either move back into the former matrimonial home or into alternative accommodation – probably at a much reduced budget (also in the region of HK$35,000 per month). If one deducts the sum of approximately HK$35,000 per month from the husband’s salary that leaves a balance of approximately HK$100,000 per month. I have given the wife HK$35,000 from what is left for both herself and the children. In doing so I have given consideration to the fact that the husband will have additional expenses relating to the children to meet plus he will also need to make provision for his tax. It also takes into account the fact that the wife does have an income of sorts and that the husband may be entitled to a bonus going forward.  

Costs

14. Costs shall be reserved.

Order

15. I shall therefore make an order as follows with effect from the 1 December 2013:

UPON the parties agreeing in advance on school trips, other school related expenses not connected to school fees and on the children’s extra extracurricular activities;

AND UPON the Respondent husband undertaking, subject to his agreement, to continue to pay for the children’s school fees, any school trips, all other school related expenses and for any fees connected to the children’s extracurricular activities;

IT IS ORDERED THAT the order dated the 24 June 2013 shall be varied with effect from the 1 December 2013 so that  

1)  The Respondent shall pay maintenance pending suit to the Petitioner for herself in the sum of HK$25,000 per month, the first payment to be made on the 1 December 2013 and thereafter to be paid on the 1st day of each succeeding month until further order.

2)  The Respondent shall pay interim maintenance to the Petitioner for the two children of the family in the sum of HK$20,000 per month per child the first payment to be made on the 1 December 2013 and thereafter to be paid on the 1st day of each succeeding month until further order.

3)  The Respondent shall be released from his undertaking to pay for the utility expenses on the former matrimonial home with effect from the 1 December 2013.

4)  Costs be reserved.

16. Finally I should like to add that the wife complains that she does not have access to a car. The husband says that she can pick up the family car and that infact she has the keys for that car. The wife says that she cannot drive it and so it goes on. In the circumstances the husband is directed to make the family car available to the wife and to ensure that it is in workable condition. He also has access to a company car. It is then for the wife to decide whether or not she wishes to use it.