EBG v. PKG

FCMC 11088 / 2008

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES

NUMBER 11088 OF 2008

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J U D G M E N T

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Introduction

1.  This is an application by a petitioner wife for maintenance pending suit for herself pursuant to s.3 Matrimonial Proceedings and Property Ordinance Cap. 192

Background

2.  The parties married on the 8 October 2000.  The wife is 38 years of age and is presently working as a waitress in a restaurant called the Y Club.  She earns HK$8,500 per month plus a bonus of HK$500 per month and tips, which are variable.

3.  The husband is 57 years old and he owns a small second hand car dealership called EM Ltd in Sai Kung. 

4.  The divorce petition was issued on the 18^th September 2008, based on the husband’s unreasonable behaviour.   The husband filed an Answer on the 14 October 2008. 

5.  There are 4 children of the family, all of whom are now living with the husband.  The two elder children, E now aged 17 years and El who is nearly 15 years old, are the wife’s children by a former marriage.  There are also two younger children – M, now aged 7 years and J who has just turned 5. 

6.  The wife left the matrimonial home in May 2008. Previously she had worked with the husband for EM Ltd.

The law

7.  Applications of this nature are governed by s.3 Matrimonial Proceedings and Property Ordinance, Cap 192, which state that the only governing principle is that the court will make such order, as it considers reasonable in all the circumstances of the case.  Consequently maintenance pending suit applications are approached on a broad-brush basis.   A detailed examination of the parties’ means will be considered at a later date at a full ancillary relief hearing, if agreement is not reached in the meantime.  Any over payment or under payment may be dealt with then.

The parties proposals

8.  The wife originally asked for HK$13,000 per month in order to cover her basic outgoings, plus provision for rent.   On leaving the matrimonial home the wife found part time work as a waitress.  This job came to an end in August 2008.  She has since found new employment.  Upon separation the wife relied on the income from her part time job and funds received from the husband in settlement of a claim that she made against him in the Labour Tribunal.

9.   The parties also reached an agreement dated the 23 July 2008 whereby the husband agreed to pay the wife HK$4,000 per month for her rent for one year commencing on the 1 August 2008.  He also agreed to pay for her deposit and advance.  It was also stated that it was

…understood that party 2 (the wife) will support her daily needs as she is employed/not employed/has money, as the case may be.

10.  By the time the parties came to court, the wife had revised her original request to HK$4,800 per month.  This was because the legal aid statutory charge was likely to bite on any sum ordered in excess of HK$4,800 per month.

11.  On the 23 October the husband was ordered to pay an interim interim amount of HK$2,000 per month, pending a full hearing on the 13 November 2008.

12.  The husband’s position is that he can barely afford to pay HK$2,000 per month and that he certainly cannot afford to pay anything in excess of HK$2,000 per month.  As I have said he presently supports all four children. 

The Issues

13.  In broad terms there is only one issue to be determined, namely how much the husband should be paying the wife as maintenance pending suit?

Discussion

14.  I must now turn to consider the issues, the law and the parties’ evidence.

15.  The wife makes the present application because she is presently living in a boarding house, which she says is unsuitable for herself and for the children, when they visit, She pays HK$60 per night – or approximately HK$1,860 per month.  She points to the husband’s financial documentation and says that EM is still doing business and therefore that he should be able to afford at least HK$4,800 per month. 

16.  The husband says that the 1) wife chose to live in a boarding house and that there are other choices that she could make – such as a flat share.  2) Business is not good.  3) He is supporting all four children.  4) His savings are depleted.

17.  On the evidence before me and on a broad-brush basis I accept much of what the husband says.  It also seems to me self evident here that a) finances are presently very tight and b) the children and proper provision for them must be everyone’s first priority. The husband clearly has a variable income.  I accept what he says about the present business climate.  His expenses of HK$34,320 per month for a family of 4 children, himself and one helper are extremely conservative.

18.  As far as the wife’s expenses are concerned it seems to me that economies can and must be made.  For example she estimates clothing at HK$1,000 per month, whereas the husband estimates clothing for himself at HK$200 per month and a further HK$500 per month for the children.  She estimates food and meals out of the home for herself at HK$3,250 per month – which is almost double the provision for the husband’s whole household.  Likewise she estimates paying HK$2,000 per month for presents. Overall the wife seeks HK$4,800, whilst acknowledging that she earns in the region of HK$9,000 per month. She puts her expenses at c. HK$12,500 per month. Thus even on her own case she needs HK$3,500 per month, but would like a little more to cover the cost of renting more suitable accommodation. In the circumstances it seems to me that the wife could choose, as the husband suggests, to make other arrangements for her accommodation, which do not necessarily necessitate her living in a boarding house. With the husband’s contribution of HK$2,000 per month, it seems to me that she should be able to make the necessary economies to live within her means. Longer term, if her financial situation were to improve, I would expect her to make some contribution towards the children’s expenses.  

19.  In the circumstances I do not intend to alter the interim interim order of the 23 October 2008.  Given that the wife is legally aided and that the husband is representing himself, there will be no order as to costs.  The wife’s own costs to be taxed in accordance with legal aid regulations.