VJM formerly known as HT v. JMM

FCMC 404/2022

[2023] HKFC 43

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES NO. 404 OF 2022

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

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1.  This is an ex-tempore decision for the application by the Petitioner Wife (“W”) for MPS for herself and interim maintenance for the daughter of the family, SJM, a girl born on XX December 2012, now age 10.

2.  Parties are both age 43. They married in July 2007 and separated in October 2020 when the W moved out with daughter to her maiden home to reside with her mother and two brothers. H moved back to a residence which was the parties’ former matrimonial home to reside with his parents.

3.  S suffers from a condition called “Staphylococcus Aureus” which requires regular medical treatment; W is a housewife and her carer since birth.

4.  The Respondent Husband (“H”) has been working in the family business (“Family business”) since 1998. It should not be in dispute that H is the family’s breadwinner during the marriage.

5.  W’s petition was initially based on unreasonable behaviour in December 2020, which was subsequently changed to one-year separation with consent on 14 January 2022. Her current application was made on 24 June 2022. On 19 July 2022, the H gave his undertaking to pay for daughter’s tuition, and was ordered to pay $5,000 for W, and $5,000 for daughter.

6.  In this application, based on her supporting affidavit, W was asking for $80,415. However in court, she adjusted her ask downward to a total of $64,100.

W’s case

7.  It is the W’s case that H plays a major role in the Family business; he is the younger of two sons of this Indian family.

8.  W says H has claimed to be owner of the Family Business during the marriage, but after the commencement of the divorce, he alleges that he only has a staff position. W says that it is not supported by any employment contract, and that the receipt of salary is haphazard.

9.  Regarding H’s allegation that he has a loan from the Family business to assist him with his family expenses, W says it was a “plan” by the family including the H, to receive income / profit sharing via loans. She further says that there is no loan agreement, no terms of repayment nor demand note for repayment; and that it is too obvious that H could not repay the alleged loans. She then argues that Family business paid the family expenses for H as the money “belongs” to H.

10.  W says as she has moved in with her family, and has been financially dependent on them and now owes them a monthly contribution of $32,333 from the time of separation in October 2020 until the MPS application in June 2022 for 21 months, totalling $678,993.

11.  She also claims that H has failed in full and frank disclosure; and that money rightfully belonging to H has been paid into his family member’s bank account with no satisfactory explanation.

H’s Case

12.  H denies W’s allegation that he is a partner or equitable owner of the Family business. H says that he is only a salaried staff with the title of Sales Director / Manager earning an income of $19,500 / month.

13.  He then claims as he has not been able to make ends meet, he has sought assistance from his parents through the Family business. All the family expenses not covered by his income is paid by the Family business, and are only loans to him, which must be repaid. He said that the accumulated loans so owed from 2015 to 30 March 2021 is $2,247,372. Therefore, averaging out over 6 years, this comes to around an additional at least $31,000 a month.

14.  H says he does not object to paying for maintenance but the W’s ask is exorbitant. He also says he is unable to pay more than the current interim Order of $10,000.

15.  H also claims that the parents and the Family business have financial difficulties, and that is why he has not been receiving salaries on time. H produced some evidence of the financial position of the family, and claims that this cannot be on-going.

Legal Principles

16.  The legal principles are clear and will not be elaborated here. The Court is to take a broad-brush approach, the factors I have to consider are the reasonable expenses of W and child, and the H’s ability to pay.

Discussion

Can H Pay?

17.  Even by the H’s own admission and per his submission, it is not denied that the Family business pays for the family expenses. It is said in Court on his behalf that they have been living beyond their means, and therefore need assistance from the Family business.

18.  It is not required of me to assess the veracity of his alleged loan from the company, and whether it is an accounting entry or otherwise at this stage; but it is apparent to me that he has allowed the family expenses to continue in this “overspending” manner, and the Family business has continued to “support” him.

19.  Furthermore, I find it hard to accept that if he is a mere employed staff, he could have borrowed more than $2.4M from the Family business.

20.  W has reviewed the H’s Employer return of remuneration which shows that the H’s average monthly income from 2019-2020 was $52,625, and from 2020-2021 was $42,600 inclusive of a housing allowance. Referring to the abovementioned rough average from the alleged Loan of $31,000 per month, the family expenses has been operating at $73,600 to $83,625 per month prior to the divorce.

21.  In perusing the evidence, the Family business has been paying for previous matrimonial home rentals, gas bills, and daughter’s school fees and school bus. This includes the company cheques signed singly by the H to pay for school related expenses.

22.  H has re-iterated in court the difficult financial position of his family and that the Family business has suffered over Covid, again I am of the view that these information, to say the least, is insufficient and untested.

23.  I do not make any finding at this stage whether H is an equitable owner or otherwise, but I am of the view that the Family business will continue to be a resource available to him to support the MPS order to be made hereunder, and therefore he has the ability to pay.

What is a reasonable amount to pay?

24.  W’s ask for the MPS budget appears in her supporting affidavit of June 2022, while her Form E dated 9 April 2021 proposed slightly different numbers; I find the H’s proposal and objection in his Form E dated 21 May 2021 and his submission for this application.

GENERAL

Item	W’s MPS ask June 2022 Affidavit	W’s Form E 9 April 2021	My assessment
Rent	28,000	9000 (1/3)	7,000
Utilities	2,500	1100 (1/3)	900
Management fees		533  (1/3)	400
Food	15,000	15,000	5,000
Household expenses	3,800	5,000	1,000
Domestic Helper	6,000	1,700 (1/3)	1,700
Sub-total:	55,300	32,333	16,000

PERSONAL

Items	W’s MPS ask June 2022 Affidavit	W’s Form E 9 April 2021	My assessment
Meals out of home	2,000	1,000	1,000
Transport	1,000	1,000	1,000
Clothings/shoes	1,500	1,000	1,000
Personal grooming	300	1,000	750
Entertainment/presents		1,000	750
Holiday	1,600	1,000	1,000
Medical / Dental	500	500	500
Others: Mobile	200
Sub-total	7,100	6,500	6,000

CHILDREN

Items	W’s MPS ask June 2022 Affidavit	W’s Form E 9 April 2021	From H’s Form E 21 May 2021 *= number offered in H’s submission	My assessment
School fees			11,580 Undertaking
Extra Tuition	1,500	0	900	1,200
School books / stationery	100	500	100	100
Transport to School			1,210 Undertaking
Medical / Dental	2,000	3,000	800*	800
ECA	6,815	0	2,715	3,000
Entertainment / Presents	2,000	2,000	200	750
Uniform			66.67
Holidays	1,800	5,000		1,000
Clothings / shoes	3,000	3,000	400	1,000
Lunches / pocket money		500	500*	500
Other transport		1,000	1,000*	1,000
Others: Mobile	800		700	700
Others: Oil etc			400	400
Subtotal	18,015		18,271 + 2,300* = 20,571	10,450
TOTAL	80,415			32,450

25.  Regarding my assessment, I have the following points to make:

a)  While previous living standards can be taken into account, the respective allegations will not be tested at this hearing; and H has actually said that the family has been spending “beyond its means”. I will focus instead on what I consider as reasonable immediate and recurring needs.

b)  Until proper analysis and necessary inferences can be made on the H’s finances, I will take the position that W will need to manage her overall spending.

c)  I do not accept that W needs to move out at this stage, she now lives at her maiden home, and contrary to the H’s submission, I am of the view that she needs to make some reasonable contribution to her maiden home for taking residence there.

d)  H does not contest the W’s personal expenses; I have made minor adjustments.

26.  The MPS amount for the W shall be $16,000 + $6,000 = $22,000; the interim maintenance for the daughter shall be $10,450. For the avoidance of doubt, the H’s undertaking to pay for school fees and school bus shall continue.

Costs

27.  Given the W has no choice but to take out this application, and H has failed to offer any amount other than to say that he cannot pay more than the current order of $10,000, I make a Costs Order in favour of the W.

Order

28.  I make the following Orders:

a)  Respondent do pay MPS at $22,000 to the Petitioner commencing March 2023 until further Order.

b)  Respondent do pay the Petitioner $10,450 as interim maintenance for the daughter commencing March 2023 until further Order.

c)  All costs arising out of and occasioned by this application and any cost reserved be to the W, to be taxed if not agreed, legal aid taxation for both parties. This to be a Cost Order nisi, to be made absolute within 14 days hereof.