WSYS v. ABC

FCMC 5551/2010
FCMC 5566/2010
(Consolidated)

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES NO. 5551 OF 2010

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BETWEEN

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(Petitions consolidated by Order of H.H. Judge Melloy dated 21st July 2010)

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J U D G M E N T
(Variation of maintenance pending suit)

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Introduction

1.  This is an application by a wife for an upward variation of an order for maintenance pending suit.  She makes the application to cover her increased living costs and in particular to cover the cost of a higher than expected rent. The application is resisted by the husband. Initially he asked for the wife’s application to be dismissed.

Background

2.  The parties married in January 1991 and had one child, a boy born in June 1993. Relations between the parties deteriorated leading to each party issuing proceedings for divorce based on the others unreasonable behaviour. The husband also issued injunctive proceedings and on the 14 May 2010 each party entered into mutual non molestation undertakings. The wife also entered into a non molestation undertaking in relation to the husband’s co-workers. Custody of the child, who is now 17 years of age, was thankfully agreed and vests in the husband. Unfortunately access could not be agreed and an interim supervised order for access is presently in place. This follows receipt of the social welfare report. The issue of the divorce itself has yet to be resolved. The parties did however manage to agree that the net proceeds of sale from the matrimonial home should be kept in a joint stakeholder account and should not be released to either party pending final resolution of this matter. On the 14 May 2010 the husband further agreed to pay the wife maintenance pending suit of HK$12,000 per month. Both parties were legally represented at the time. It is that order that the wife now seeks to vary upwards by virtue of her Notice of Application filed just two months after the date of the original order. In reply Mr Fung, for the husband, prima facie says that the wife’s application should be dismissed. However, in his second affirmation the husband makes a case for paying the wife maintenance pending suit of approximately HK$18,000 per month.

3.  The main issues to be determined then are as follows:

(i)   Should the husband pay an increased amount as maintenance pending suit for the wife?

(ii)   If so how much should the husband pay?

The law

Maintenance pending suit

4.  The Matrimonial Proceedings and Property Ordinance, Cap 192, states that the only governing principle when determining maintenance pending suit, is that the court shall make such order, as it considers reasonable in the all the circumstances.  (See s.3 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. That is, if there is no agreement in the meantime.

Variation of maintenance

5.  In so far as variation is concerned, the wife’s application to vary is made pursuant to section 11(7) of the Matrimonial Proceedings and Property Ordinance Cap. 192, which provides that:

“(7) In exercising the powers conferred by this section the court shall have regard to all the circumstances of the case, including any change in any or the matters to which the court was required to have regard when making the order to which the application relates ……”

6.  It is accepted that in considering a change of circumstances, I may look at the case de novo.  In other words the court is not necessarily fettered by the existence of a previous order – although this is often a question of weight (see the recent unreported Court of Appeal decision HCTT v TYYC [2008] HKEC 1105).  I may look at the situation afresh and make an order based on the parties’ current circumstances.  (See Ch 3.131 Jackson’s Matrimonial Finance and Taxation, 7^th edition). However it is also true that there is normally a trigger or reason necessitating the application in any event. In this case the increased cost of the wife’s rental and other expenses were the reasons given for the application.

Discussion

7.  I must now turn to consider the issues, the law, and the parties’ evidence as set out in their affirmations and their Form E’s. I will also consider the submissions made by their lawyers.

Should the husband pay an increased amount as maintenance pending suit for the wife?

Discussion

The wife’s needs

8.  The wife is seeking HK$34,510 per month to cover her costs. Initially she sought HK$34,800. This figure was altered slightly before the hearing, but amounts to virtually the same figure overall.

9.  The husband takes issue with a great many of the wife’s expenses.   

10.  In his second affirmation of the 13 August 2010 he summarizes each party’s respective position. The wife subsequently revised her position further in her 3^rd affidavit of the 25 August. The following table sets out each side’s stated positions at trial.

	Item	Wife's Position (HKD)	Wife's Revised Position (HKD)	Husband's Position (HKD)
(a)	Rent	$11,800.00	$11,800.00	$9,000.00
(b)	Gas	$450.00	$550.00	$100.00
(c)	Electricity	$700.00	$700.00	$150.00
(d)	Water and Sewage	$400.00	$173.00	$100.00
(e)	Food	$3,000.00	$3,000.00 (Agreed)	$3,000.00
(f)	Household Expenses	$4,000.00	$3,000.00	N/A
(g)	Fixed Line Phone	$77.00	$77.00 (Agreed)	$77.00
(h)	Mobile Phone	$300.00	$100.00 (Agreed)	$100.00
(i)	Internet monthly service charge	$200.00	$200.00 (Agreed)	$200.00
(j)	Travelling Expenses	$2,000.00	$2,000.00	$1,000.00
(k)	Meals out of home	$5,400.00	$3,900.00	$1,200.00
(l)	Clothing	$1,500.00	$2,000.00	$650.00
(m)	Personal grooming (including haircutting and cosmetic)	$823.00		$500.00
(n)	Entertainment	$500.00	$800.00	$500.00
(o)	Medicine and Acupuncture for Petitioner’s knees	$2,000.00	$5,000.00	$400.00
(p)	Miscellaneous	$1,650.00	$2,700.00	$1,000
LESS	Normal Disability and Travelling Allowance		($1,490.00)
	Total:	$34,800.00	$34,510.00	$17,977.00

11.  Thus, on the face of it, the husband appears to be making a case for paying the wife maintenance pending suit of just under HK$18,000 per month. The wife seeks approximately HK$34,500.

Rent

12.  The wife has rented a flat for HK$11,800 per month. She did so shortly after agreeing to receive maintenance pending suit of HK$12,000 per month. She says that at the time she was living in temporary accommodation and that she now needs to live near the Hospital where she is receiving treatment. She has some health issues making only certain flats suitable for her needs. She says that she has tried to be as economical as possible. Although I have some sympathy with the husband’s position in this respect I will allow the wife the total sum of HK$11,800 per month as claimed in order to continue to rent this particular property.

Gas, Electricity, Water and Sewage.

13.  I will allow the wife HK$1,000 per month for these three items, which erring on the generous side, is in keeping with the estimate provided by the husband for both himself and the son.

Food

14.  This is agreed at HK$3,000 per month.

Household expenses

15.  I will allow HK$500 per month – i.e. half the amount estimated by the husband for himself and the son.

Phone and internet charges

16.  These are agreed at HK$377 per month (say HK$400 per month).

Travelling expenses

17.  I will allow the wife HK$1,500 per month on the basis that I accept that she is required on occasion to travel by taxi as opposed to the MTR – because of her health problems. I have however also noted that one of her stated reasons for renting her present accommodation was that the local MTR station was more suitable for people with mobility problems.

Meals out of the home

18.  The wife’s original figure of HK$5,400, reduced to HK$3,900 per month still seems excessive in the circumstances. I will allow the wife HK$2,000 per month – which is also the amount claimed by the husband.

Clothing and personal grooming

19.  The wife’s figures seem excessive. I will accept the husband’s suggested figures of HK$650 and HK$500 per month respectively.

Entertainment

20.  This was originally agreed at HK$500 per month, but was subsequently increased by the wife to HK$800. I will allow HK$500 per month.

Medicine and acupuncture 

21.  The wife originally sought HK$2,000 per month and then increased her request to a staggering HK$5,000 per month. This seems extraordinarily high and I simply do not accept that it is reasonable to expect the husband to pay such a high amount. I will allow HK$1,000 per month for this purpose.

Domestic helper

22.  The parties did not have a domestic helper during the course of most of the marriage. The husband does not have a domestic helper now notwithstanding the fact that he works full time in a senior position and is responsible for the day to day care of the parties’ son. Notwithstanding the wife’s health issues given that the wife is not working and that she only has herself to care for, I do not intend to allow this sum for the time being.

23.  Consequently I will prima facie allow the following expenses:

	Item
(a)	Rent	$11,800.00
(b)	Gas	$1,000.00
(c)	Electricity
(d)	Water and Sewage
(e)	Food	$3,000.00
(f)	Household Expenses	$500.00
(g)	Fixed Line Phone	$400.00
(h)	Mobile Phone
(i)	Internet monthly service charge
(j)	Travelling Expenses	$1,500.00
(k)	Meals out of home	$2,000.00
(l)	Clothing	$650.00
(m)	Personal grooming (including haircutting and cosmetic)	$500.00
(n)	Entertainment	$500.00
(o)	Medicine and Acupuncture for Petitioner’s knees	$1,000.00
(p)	Miscellaneous/Domestic helper
LESS	Normal Disability and Travelling Allowance		($1,490.00)
	Total:	$21,360.00

The husband’s ability to pay

24.  According to the husband’s Form E, he is presently earning HK$84,690 per month. This figure was increased slightly in his latest affidavit to HK$86,045 per month.  He lists his expenses in his Form E as HK$58,800 per month. However this did not include his monthly repayments for credit cards and other loans. I accept as submitted by counsel that he presently pays in the region of HK$20,565 per month for those items. I also accept that some of these repayments may need to be varied as circumstances dictate. Thus in total he presently has outgoings of approximately HK$79,365 per month. This includes the maintenance pending suit in the sum of HK$12,000 per month and all of the son’s expenses. He is paying rent on a unit for both himself and the son in the sum of HK$12,000 per month. Thus on the husband’s figures he has a surplus of approximately HK$6,680 per month. The husband has offered to pay HK$18,000 per month. Presumably he intended to make the increased payments by juggling some payments and economizing as necessary. Given that it seems to me that he should be able to pay a slightly increased sum of HK$21,500 per month on the same premise.

Costs

25.  Given that neither side could be said to have entirely won nor entirely lost, I will make an order nisi that there shall be no order as to costs to be made absolute in 14 days time. 

26.  Consequently having read both sides Form E’s and other affirmations filed in support and having read and heard the submissions from both parties’ lawyers, I will make an order in the following terms:

1)   The husband shall pay the wife maintenance pending suit for herself in the sum of HK$21,500 per month, the first payment to be made on the 1 October 2010 and thereafter on the first day of each succeeding month until further order.

2)   There be an order nisi to be made effective in 14 days that there be no order as to costs. Certificate for counsel.