LEMS v. LCTN

HCMP 2237/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 2237OF 2014

(ON AN INTENDED APPEAL FROM FCMC NO. 14731 of 2013)

________________________

________________________

_______________

JUDGMENT

_______________

Hon Lam VP (giving the Judgment of the Court):

1.  After trial, the judge awarded 74% of the family asset (which includes a $10 million odd inheritance obtained by the husband after separation) to the wife by way of a clean break. The lump sum ordered was in the sum of $38 million. In addition she also retained some assets. If one does not include the inheritance, she had been awarded 90%. According to the judge’s assessment, $10 million out of the $38 million is to take care of her accommodation need whilst the $28 million is based on a monthly reasonably need generously assessed at $60,000.

2.  This is a marriage of 17 years (up to date of separation[1]) with 2 children.  There are separate provisions for the children in the order of the judge.   In this application we are only concerned with the award in favour of the wife.

3.  During the marriage, the family had been generously provided for by the parents of the father and the paternal grandparents who have immense wealth.  However, after the breakup of the marriage, the parents and grandparents had indicated firmly that they would not be making further provision in the foreseeable future.  Though this had initially been challenged, by the time of trial, the wife conceded that there would not be further financial assistance from the parents and the paternal grandparents in the foreseeable future.

4.  The application for leave to appeal must be considered against this background.  Leave was refused by the judge and the wife now applies to this court for leave.  She complained that the judge was wrong in not making a nominal periodic payment in favour of her (in addition to the lump sum award in respect of which she does not appeal). The purpose of such a nominal periodic payment is to preserve her claim for a more substantial periodic payment in the future in the event the husband shall receive a large inheritance from either his parents or paternal grandparents.  She said the judge erred in ordering a clean break when the present lump sum award cannot satisfy her reasonable needs.  

5.  A main plank of the wife’s argument is that the judge did not assess her reasonable needs correctly because the $60,000 per month figure does not provide for her adequately.  She said so because, in the past, when the family had the financial support of the parents and grandparents, the standard of living is much higher.  However, in light of her concession that such financial support is no longer forthcoming, we do not think this is a reasonably arguable proposition.  In our judgment, the judge gave proper consideration to the evidence and adequately explained in her judgment why $60,000 per month is a proper figure in the circumstances of the present case.

6.  Once the premise of inadequate provision for reasonable needs has gone, there is no foundation for challenging the judge’s conclusion that this is a case where the court should make an award by way of a clean break.  The inheritance that the husband may receive in the foreseeable future may come within s 7(1)(a) of the Matrimonial Proceedings and Property Ordinance.  But this possibility is excluded in view of the concession by the wife.

7.  Mr Joffe (counsel for the wife) is not able to refer any authority to support the proposition that a prospect for some inheritance a long time in the future should be taken into account in an ancillary relief application.  He accepted that such prospect is not referred to in the list of factors of s 7(1).  Instead he relied on the general reference to all the circumstances of the case in the opening part of the sub-section.

8.  We must say that the weight of authorities is against an uncertain prospect of inheritance in a time frame which cannot be regarded as “the foreseeable future” to be taken into account, see C v C [2009] EWHC 1491 Fam, [2010] 1 FLR 337 a case described by Munby J as “on the outer extremity as what could be regarded as a financial resource”.  The present case is even more remote than that.   

9.  We also bear in mind that at the court below, the wife asked for a substantial periodic payment instead of a nominal periodic payment.  It is fair to say that she is now pursuing a different tactic.

10.  On the whole, we are not satisfied that her appeal has a reasonable prospect of success and we do not see any other reason in the interest of justice to warrant leave being granted.  We would dismiss her application.