GY v. CWT

FCMC 7844 / 2013

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES

NUMBER 7844 OF 2013

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J U D G M E N T

(Maintenance Pending Suit)

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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.

The main issues

2.  The main issue to be determined is how much should the husband pay to the wife as interim maintenance pending final resolution of this matter. The husband has offered to pay HK$27,000 per month whereas the wife seeks HK$75,000 per month or such other sum that the court deems reasonable. The wife also asks that this sum be backdated to the date of the petition i.e. to the 5 June 2013. It should be noted that the wife left the former matrimonial home in July 2013. The wife is legally aided and there are also concerns about the legal aid statutory charge. On the 8 November 2013 an order was made for interim interim maintenance pending suit pending this hearing. The husband was ordered to pay the wife HK$100,000 plus a further HK$35,000 per month commencing on the 1 December 2013 until further order. The idea had been that the sum of HK$100,000 would enable the wife to put down a deposit on a small flat and pay the first month’s rent. In addition she has some debts to repay. However once Legal Aid had imposed the statutory charge she only received HK$57,400 of the HK$100,000 plus HK$4,800 being the maintenance for December 2013. I am told that the wife’s costs to date, pre legal aid taxation, stand at HK$655,000. Consequently I stood the matter down so that the lawyers for the wife could discuss matters with the Legal Aid Department. Notwithstanding that it is still not clear how much money the wife will actually receive once this judgment has been handed down. This is a matter of some concern.

Background 

3.  The parties married in November 2008. There was some dispute about the date of separation, but it has now been agreed that the parties separated on or before the 30 May 2012. This was then a relatively short marriage. The divorce petition was issued by the wife on the 5 June 2013 and was initially defended. Sensibly the parties agreed to compromise this aspect of the case and by virtue of a court order dated the 8 November 2013 the parties agreed that the petition should be amended to one year separation with consent. Unfortunately there have been other issues including disagreements with respect to the arrangements for the parties’ only child – a little girl who was born in May 2009.  

4.  The husband is nearly 38 years of age and he describes himself as a freelance investor. The wife, who is originally from the Mainland, is 30 years old and was until recently a full time housewife. She has not worked since marriage and is totally reliant upon the husband financially. She comes to Hong Kong on a two way permit and was recently deported for breach of overstay. The wife claims that this was because the husband had refused to give her the requisite travel documents.  

The law

Maintenance pending suit

5.  The law is well known and not in dispute. Section 3 MPPO Cap192 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. 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, when there is then every opportunity to achieve fairness by means of set off. In other words, if there is any overpayment or underpayment that can normally be rectified at a final ancillary relief hearing.

6.  The wife’s solicitor has referred to the Court of Appeal case namely HJFG v KCY (CACV 127/2011, 28 October 2011, where the following principles were reiterated with respect to maintenance pending suit applications:

a. The sole criteria to be applied in determining the application is “reasonable” which is synonymous with “fairness”.

b. A very important factor in determining fairness is the marital standard of living.

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.

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 situation, the Court should err in favour of the payee.

7.  In so far as this particular case is concerned the reference to the marital standard of living previously enjoyed by the parties and the ability of the husband to pay is particularly pertinent. 

How much maintenance should the husband pay to the wife as maintenance pending suit for herself?

8.  In essence the wife’s case is that the husband should pay her HK$75,000 per month because that is in keeping with the standard of living enjoyed by the parties prior to the breakup of the marriage. In particular she claims that the parties enjoyed living in what has been described by counsel as luxurious accommodation on the south of Hong Kong Island. She says that the husband would buy her designer goods and asks for HK$30,000 per month to pay for clothing and shoes.

9.  The husband for his part says that the wife’s figures are inflated and maintains that HK$27,000 per month is a more reasonable sum.

10.  The wife’s expenses are set out in both her Form E and in her later affidavit as follows:

General Items	Form E Petitioner	Est. of Petitioner
Rent	76,000	76,000
utilities	4,000	4,000
food	15,000	15,000
household expenses	1,000	1,000
car expenses	5,000	10,000
insurance premia	--	--
domestic helper	4,000	4,000
driver	15,000	15,000
car park	--	9,000
total family exp.	120,000	134,000
Personal Items
Meals out of home	5,000	5,000
transport	1,000	1,000
clothing/shoes	30,000	30,000
personal grooming	6,000	6,000
entertainment/present	--	--
holiday	--	--
medical/dental	5,000	6,000
insurance	--	--
contribution to parents
dependent family member
sub-total	47,000	48,000
expenses for children		--
total family expenses	167,000	182,000

11.  I should say right from the beginning that I did not find either party particularly credible in the way that each presented their case. In particular when asked through counsel the wife was unable to provide any details of the so called luxury items apparently purchased for her on a regular basis by the husband. When pushed she said that they would shop in Lane Crawford and she mentioned “Dior” and “LV”. I do not accept what the wife says in this respect and I will not allow the HK$30,000 per month for clothing/shoes requested which seems excessive in the circumstances. The other personal items identified by the wife seemed similarly inflated including HK$5,000 per month for meals out of the home and HK$6,000 per month for personal grooming.

12.  In so far as the general items are concerned HK$15,000 per month for food for a single woman seems extraordinarily high. In addition the wife is claiming funds for a driver, a domestic helper and a car. Given the fact that the child is based with the husband at the moment these items will not be allowed as they are mainly in the husband’s schedule of expenses so as to enable him to take care of the child appropriately. I should add that this may be revisited later depending on the practical arrangements for the child going forward.  

13.  In so far as the rent is concerned the husband maintains that the parties only lived in more expensive accommodation for the last two years of their marriage and he has since moved to more affordable accommodation of HK$27,400 per month. This seems to be more in keeping with the parties’ original standard of living. I will therefore allow the wife the same rental allowance.

14.  The following represents what seems to be more reasonable level of expenditure for the wife and one that is more in keeping with what the husband says his own expenses are:

General Items
Rent	27,400
utilities	2,900
food	4,000
household expenses	2,000
car expenses	---
insurance premia	---
domestic helper	---
driver	---
car park	--
total family exp.	36,300
Personal Items
Meals out of home	3,000
transport	1,000
clothing/shoes	3,000
personal grooming	2,000
entertainment/presents	4,000
holiday	---
medical/dental	1,000
insurance	---
contribution to parents	---
dependent family member	---
sub-total	14,000
expenses for children
total family expenses	50,300

I will round this down to HK$50,000 per month.   

Can the husband afford to pay this sum?

15.  There was a degree of mystery surrounding the husband’s financial standing – particularly with reference to his current income. According to him he does not pay tax and his only income is derived from dividends received from his company. He owns 100% of the shares in that company. According to his Form E he received dividends in September 2013 of HK$1,282,554 or just over HK$100,000 per month. He also claims to have a reasonable frugal lifestyle with expenses as follows:

General Items	Form E Respondent
Rent	27,400
utilities	2,900
food	4,000
household expenses	2,000
car expenses	3,000
insurance premia	200
domestic helper	4,500
driver	--
car park
total family exp.	44,000
Personal Items
Meals out of home	3,000
transport	--
clothing/shoes	2,000
personal grooming	300
entertainment/present	4,000
holiday	2,000
medical/dental	1,000
insurance	4,100
contribution to parents	20,000
dependent family member	15,000
sub-total	51,400
expenses for children	27,200
total family expenses	122,600

16.  Counsel for the wife was able to show however that this was not in keeping with the level of expenditure identified in the husband’s credit card statements. On the 20 May 2013 he paid HK$33,916, and at the beginning of June and a further total of HK$59,569 with an additional HK$62,426 paid at the end of the month. A similar story could be seen in the next month’s statement where the husband had paid off a total of HK$86,336. In addition the husband was able to pay for 13 months rental when he moved into new accommodation in the sum of HK$411,000. He clearly enjoys a very comfortable life style and one that is not necessarily commensurate with an income of just over HK$100,000 per month. I have also noted that he does have a reasonable amount of liquidity in his portfolio – although I would accept that he needs a certain amount of flexibility so that he is able to invest appropriately and when necessary. In so far as some of the individual items are concerned I do not accept that it is reasonable for the husband to pay such large sums as a contribution to his parents and other family members.

17.  All in all I am satisfied that the husband does have the means to pay the wife HK$50,000 per month and that in part this should come from a reduction in some of his own expenditure.     

Should this sum be backdated?

18.  The husband has paid very little to the wife since separation. Consequently I accept that this is a suitable case for backdating save that allowance should be made for the HK$100,000 already paid by the husband in accordance with the order of the 8 November 2013. In addition given that the wife did not leave the matrimonial home until July 2013, the backdating shall be from then. Thus the husband shall pay HK$50,000 per month with effect from the 1 July 2013 to 31 December 2013 – i.e. a 6 month period = HK$300,000 less the sum of HK$135,000 already paid (i.e. HK$100,000 + HK$35,000). In total then the husband shall pay HK$165,000 forthwith plus maintenance pending suit of HK$50,000 per month with effect from the 1 January 2014 until further order.

Costs

19.  Given that the wife has been more successful than not, that she has had no option but to make this application and that she is legally aided I shall order that the husband shall pay the wife’s costs on a party and party basis to be taxed if not agreed, the wife’s own costs to be taxed in accordance with Legal Aid Regulations.

Order

1) The Respondent shall pay maintenance pending suit to the Petitioner for herself in the sum of HK$50,000 per month, the first payment to be made on the 1 January 2014 and thereafter to be paid on the 1st day of each succeeding month until further order.

2) The Respondent shall pay the sum of HK$165,000 as back payments for maintenance forthwith.

3) The Respondent do pay the Petitioner’s costs on a party and party basis to be taxed if not agreed. The Petitioner’s own costs to be taxed in accordance with Legal Aid Regulations.

 

 

( Sharon D. MELLOY ) District Judge