TKW v. NLPS

FCMC 9831/2022

[2025] HKFC4

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES NO. 9831 OF 2022

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BETWEEN

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JUDGMENT
(Ancillary Relief)

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Note: For the protection of privacy, the personal information in this decision has been redacted.

1.  Both parties apply for ancillary relief against each other.

2.  On the day of the trial, the parties’ open proposals were as follows:

1) The Petitioner:

a) There be an equal division of the matrimonial home in Palm Springs, Yuen Long (“the Former Matrimonial Home”)

b) There be equal division of assets between the parties. To achieve equal division, the Respondent should be ordered to pay a lump sum to achieve equalization of the matrimonial assets between the parties.

c) The Respondent pay costs to the Petitioner.

2) The Respondent:

a) The Petitioner shall have 50% of the net value of the Former Matrimonial Home after deducting various loans advanced by the Respondent, renovation costs, outstanding mortgage payments, and the deposit for purchasing the Former Matrimonial Home paid by Respondent. The Petitioner’s share of the net value of the Former Matrimonial Home be paid by the Respondent in instalments.

b) The Respondent shall transfer her shares in the Petitioner’s company (“Fxxxxxx”) to the Petitioner at nil consideration. The Petitioner shall indemnify the Respondent against all Fxxxxxx’s liabilities.

c) Parties retain all other assets in their own name.

3.  All monetary figures are in Hong Kong dollars unless otherwise specified.

A. BACKGROUND

4.  As at the date of the trial, the Petitioner (“the Husband”) is 62 years old and the Respondent (“the Wife”) is 58 years old. The parties do not have any children.

5.  I set out the chronology of the salient facts below:

DATE	EVENT
12 October 1990	Parties were married in Hong Kong
16 July 1991	Fxxxxxx was established
16 May 1994	Parties purchased the 1st Matrimonial Home (“Lido”)
14 May 1996	Parties purchased the 2nd Matrimonial Home (“Parc Versailles”)
15 July 1996	Parties sold Lido
23 April 2003	Parties purchased the 3rd Matrimonial Home (“Hong Lok Yuen”)
22 October 2003	Parties sold Hong Lok Yuen
9 October 2003	Wife learns of Husband’s extra marital affair with Ms Shang
22 October 2003	Husband signed a nomination document (“the Nomination”) for the Wife to purchase the 4th Matrimonial Home in Yuen Long (“the Former Matrimonial Home”) in her sole name.
21 November 2003	Parties purchased the Former Matrimonial Home.
2 December 2004	Parties sold Parc Versailles.
8 May 2018	The Respondent established a company by the name of WxGxxxx.
16 August 2021	1) The Respondent discovered the Petitioner continued to maintain his extra-marital affair with Ms Shang and they have a 6-year-old daughter. 2) Parties separated.
23 August 2021	The Petitioner sent a declaration to the Respondent (“the Declaration”). Parties are in dispute as to how the declaration came to be signed and whether the Petitioner should now be bound by the same. The meaning of the terms in the Declaration are also in dispute. In summary, the Respondent claims the Petitioner agreed to an “unconditional divorce” in that he agreed to give her the Former Matrimonial Home. The Petitioner claims the Declaration is not binding by reason of various vitiating factors. The terms of the Declaration are set out in the relevant section below.
27 August 2021	The Respondent filed a divorce petition under the case number FCMC 8703/2021
19 January 2022	The petition in FCMC 8703/2021 was withdrawn. According to the Respondent, she withdrew the said divorce petition due to the Petitioner’s refusal to the comply with the Declaration by filing a Form A.
14 October 2022	Petitioner filed the present divorce petition (FCMC 9831/2022)

B. THE ISSUES

6.  The parties have lodged a Joint Statement of Issues in Dispute. I summarize the issues in dispute as follows:

1) Whether the Declaration is enforceable against the Petitioner.

a) What were the terms of the Declaration and what is the meaning of those terms.

b) Whether there are any vitiating factors and/or other factors that render the Declaration unenforceable.

2) Identification of matrimonial assets and the value thereof.

a) What is the value of the Former Matrimonial Home.

b) What is the value of Fxxxxxx and WxGxxxx.

c) Whether the parties have dissipated and/or deflated the value of their assets.

3) Earning capacity of the parties

a) Whether the companies set up by the parties respectively, that is Fxxxxxx and WxGxxxx are still in operation or profitable.

b) Whether the Petitioner has undisclosed source of income.

4) Whether the present case should adopt the sharing principle or there should be a departure from the same.

C. THE ENFORCEABILITY OF THE DECLARATION

7.  Counsel for the Husband, Mr. Chan, argues the following:

1) There was no intention that the Declaration was to be the full and final agreement between the parties.

2) The terms of the Declaration are ambiguous in nature and cannot amount to an enforceable agreement.

3) Alternatively, even if the Declaration constitutes an enforceable agreement, there are vitiating factors which render the Declaration unenforceable.

8.  Counsel for the Wife, Mr. Chow, argues the Declaration is akin to a post-nuptial agreement and the same should be enforceable.

1) Parties’ version of the background surrounding the Declaration

9.  The parties do not dispute that after the Wife discovered the Husband’s extra-marital affair, parties had various conversations leading up to the signing of the Declaration.

10.  A summary of the Wife’s version of events is as follows:

1) As early as 2003, the Wife discovered the Husband was having an extra-marital affair. To express his remorse and to compensate the Wife, the Husband agreed to sign the Nomination so that the purchase of the Former Matrimonial Home could be completed in the Wife’s name. The Husband also agreed that if he ever made a “mistake” in the marriage, the Wife could evict him from the home.

2) In August 2021 when the Wife discovered the Husband continued his extra-marital affair and had a daughter with Ms Shang, the Wife asked for a divorce. In their discussion, the Husband agreed he would be responsible for his own liabilities under Fxxxxxx and the Wife would not offer any financial assistance to the Husband after the divorce. The Wife specifically asked the Husband whether he would honour his promise of gifting her the Former Matrimonial Home as made in 2003. The Husband confirmed he would.

3) By reason of their discussions, the Husband signed the Declaration to honour his promise of gifting her the Former Matrimonial Home and other financial arrangements as agreed between the parties.

11.  The Husband’s version of events are, needless to say, different. He denies he promised to gift the Former Matrimonial Home to the Wife. His version of events are summarized as follows:

1) The Husband claims that after the Wife found out about his extra-marital affair, she demanded that the Former Matrimonial Home be registered under her sole name so that she would feel more secure about the marriage. To ease her concerns, the Husband agreed to execute the Nomination. However, he continued to regard the Former Matrimonial Home as being jointly owned and as part of the matrimonial assets. At no time did he ever agree to gift the Wife the Former Matrimonial Home nor did he ever agree that she could evict him if he ever made a “mistake” in the marriage. The Husband claims the Nomination is incorrect in that the Wife was not the person who paid the purchase price because it was in fact jointly paid by the parties.

2) Prior to August 2021, the Wife and Husband had been discussing the cessation of Fxxxxxx due to its unprofitability. During these discussions, the Husband had asked the Wife to use the family funds to pay off Fxxxxxx debts to Bank of East Asia so that the Former Matrimonial Home can be discharged from being the security of Fxxxxxx’s debts. The Wife rejected the proposal.

3) In 2021, the Wife proposed to divorce the Husband and to end Fxxxxxx’s operations. The Wife agreed to provide funds to the Husband to pay off Fxxxxxx’s debts and the Husband would repay the said loan from the Wife. On 22 August 2021, the Wife demanded that their agreed arrangement be recorded in writing. In return, the Husband sent the Wife a WeChat message recording the matters as specifically requested by the Wife (“the 1^st WeChat Message”). The 1^st WeChat Message reads as follows (names have been obliterated):

離婚協議書

我湯XX因在国內有婚外情並有了一個小孩，此事做成妻子伍XX很大的傷害，我很羞悸但不能接受自己的錯，她伍XX还不时在各方面支持和幫助，我不但不去改还辜負了她对我的期望。这些對她的傷害，我沒有方法去補償。我湯XX接受妻子伍XX提出離婚提案。如果分开能使她減輕痛，我会去做。

1. 接受伍XX的提議，湯XX接受她的私人貸款為港幣叁佰伍拾萬元正用於清還所有富XXXXXXX在東亞銀行的商業貸款用作日常營運。

湯XX誠諾將叁佰伍拾萬元分期償還，誠諾先出售中港車牌和寶福，山龕位所得金錢償還部份貸款给伍XX，餘下款項分期攤還。

4) The next day, the Wife produced the Declaration and asked the Husband to sign the same. According to the Husband, the Wife threatened that if the Husband refused to sign the Declaration, she would not lend the funds to the Husband to repay Fxxxxxx’s debts. The Wife further reassured the Husband that there would be an opportunity to sign a proper agreement after the agreed arrangement was approved by the lawyers. At no time did the Wife mentioned that signing the Declaration would mean he would relinquish all rights to the Former Matrimonial Home and/or the matrimonial assets. By reason of the Wife’s threats and pressure, the Husband signed the Declaration. The Declaration reads as follows (names have been obliterated):

我湯XX承認婚內出軌並在國內有家庭和女兒！對妻子伍XX做成的心靈和身體傷害極為悔疚並且願意承担責任和賠償！也願意無條件簽處離婚。

同時我也保證於兩年內償還以下欠款給伍XX：-

伍XX的私人借貸港幣一百萬元

伍XX或其公司環XXXXXXXXX借貸港幣三百二十萬元給富X

XXXXXX，其中不少於港幣一百五十萬元或從轉讓富X名下的中港車牌及兩個沙田寶福山龕位的實際收益以高者為準，必須於三個月內清還

由於伍XX是富XXXXXXX的股東也是債權人，我同意日後所有銀行出入賬項及開出支票均由她來加簽確認!

確立人：湯XX

此聲明書會交律師審閱，或許需要修改！一切以最終確認為準！

12.  It is not disputed that shortly after signing the Declaration, the Wife sent a WhatsApp message to the Husband stating the following (“the 2^nd WhatsApp Message”) on 8 September 2021:

Let us sit down tonight at 06:30pm in the office to discuss in detail but you have to bring a cheque of the deposit on Bo Fuk!! Just to remind you that our final agreement before I know you cheated me more than what you stated was you have to settle $1.5M in 3 months and I will borrow money to you under an official borrow receipt on your commitment of return on the balance $1.7M... I need a witness tonight, will see if Benson can join!!

2) Enforceability of the Declaration

13.  The approach to be taken when considering the enforceability of nuptial agreements is set out in the two leading cases of L v C [2007] 3 HKLRD 819 and SPH v SA [2014] 4 HKC 271. The Court of Final Appeal adopted the majority judgment of Radmacher v Granatino [2011] 1 AC 534 and have recognized the following 3 main principles (see paragraphs 30, 34, 39 of SPH v SA) :

1) The court is not obliged to give effect to nuptial agreements when considering the grant of ancillary relief.

2) The parties cannot oust the court’s jurisdiction by way of agreement.

3) The court must give appropriate weight to nuptial agreements, having regard to the following (see paragraph 33 of SPH v SA):

33. In particular, an agreement would carry full weight only if each party had entered into it of his or her own free will, without undue influence or pressure, having all the information material to his or her decision to enter into the agreement and intending that it should be effective to govern the financial consequences of the marriage coming to an end; and the court should give effect to an agreement which was freely entered into by each party with a full appreciation of its implications unless in the circumstances prevailing it would not be fair to hold the parties to the agreement. Enforcement of the agreement could be rendered unfair by the occurrence of contingencies unforeseen at the time of the agreement or where, in the circumstances prevailing at the time of separation, one partner would be left in a predicament of real need while the other enjoyed a sufficiency.

14.  Hence in considering the enforceability of nuptial agreements, this court is not to take “an overly legalistic approach” (see paragraph 45 of L v C) and would enforce nuptial agreements in absence of any vitiating factors or hardship (see paragraph 47 L v C).

15.  Having considered the evidence and submissions of counsel, I agree that the Declaration was not meant to be a final agreement. It is clearly written at the bottom of the Declaration: 此聲明書會交律師審閱，或許需要修改！一切以最終確認為準！This clearly means the parties envisaged lawyers would peruse the Declaration and amendments may be made. All terms were subject to final confirmation.

16.  It is not disputed that there was no final confirmation by the parties of the terms set out in the Declaration. Furthermore, the parties did not engage lawyers to advise them on the terms of the Declaration. Nor did they engage lawyers to draft a final confirmation and/or separate agreement to confirm the contents of the Declaration. Subsequent to the signing of the Declaration, the parties did nothing to confirm the finality of the signed Declaration.

17.  This position is consistent with Mr. Chow’s submission that the Declaration is not a contract (paragraph 38 of the Closing Submissions).

18.  Mr. Chow submitted the Declaration is in fact a summary of what the parties previously agreed (paragraph 31 of the Closing Submissions). However, I reject his submissions.

19.  If the Declaration were a record of what has previously been agreed, there would not have been the need to insert the caveat at the bottom of the Declaration. The insertion of the caveat clearly indicates the parties anticipated there would be some further “fine-tuning” of the agreement. There may have been some main terms agreed to (for example the Wife’s loan to the Husband for Fxxxxxx’s debts) but there were still other matters the parties felt the need to or the possibility of seeking legal advice on.

20.  I also note that the Wife has never acted on the matters set out in the Declaration in that she never lent money to the Husband for him to settle Fxxxxxx’s debts. In such circumstances, the inference to be drawn is that the Wife herself also does not view herself bound by the Declaration.

21.  I therefore find the Declaration itself is not a comprehensive and final nuptial agreement and cannot be considered as such. The submissions and/or arguments relating to the vitiating factors surrounding the Declaration are therefore redundant.

22.  The question is therefore: what did the parties purportedly agree to prior to separation, if anything?

23.  The Wife claims Husband agreed orally to gift her the Former Matrimonial Home in contemplation of divorce. She claims the use of the phrase “也願意無條件簽處離婚” in the Declaration is evidence of such.

24.  I do not accept the Wife’s claim over the Former Matrimonial Home.

25.  The use of the phrase “也願意無條件簽處離婚” is ambiguous. It can mean a variety of things not restricted to the ancillary relief claims.

26.  It is trite law that if an agreement is vague or ambiguous such that no definite meaning can be given to it without adding further terms, the agreement may be rendered unenforceable (see Chitty on Contracts 35^th Edn, Vol 1, paragraph 4-186). Although agreements with vague terms can still be enforceable, there must be no conceptual uncertainty (see Chitty on Contracts 35^th Edn, Vol 1, paragraph 4-187).

27.  In the present case, there are no contemporaneous documents supporting the Wife’s allegation that an “unconditional divorce” is equivalent to forsaking all ancillary relief claims, especially that over the Former Matrimonial Home. In the parties’ the 1^st WeChat Message and the 2^nd WhatsApp Message, there is simply no mention of the Former Matrimonial Home. Given the Wife’s careful nature and her acute business sense of needing to reduce their agreement to writing with a witness to the same, I find it peculiar that she failed to mention the purported agreement relating to the Former Matrimonial Home in her recap of their agreement in the 2^nd WhatsApp Message. I am of the view the use of the phrase “unconditional divorce” is conceptually so vague that it is incapable of enforcement and incapable of being interpreted in the manner as put forward by the Wife.

28.  Although Mr. Chow submits the execution of the Nomination is evidence to prove the Husband’s agreement to gift the Former matrimonial Home to the Wife, I do not accept his submissions. In my view, it is clear there has never been any formal consensus between the parties that the Husband would gift the Former Matrimonial Home to the Wife unconditionally upon divorce. Nor has there been any consensus between the parties the Husband would forsake all his ancillary relief claims. This is evident by the Husband’s action of filing a Form A in the previous proceedings (FCMC 8703/2021) shortly after he claims to have no ancillary relief claims in his Form 4. Furthermore, this is consistent with the Wife’s own concession under cross-examination that the parties never specifically mentioned whether the Husband was to give up his ancillary relief claims upon divorce.

29.  By reason of the above matters, I reject the Wife’s claim there was any post-nuptial agreement that the Husband was to give up all his ancillary relief claims against the Wife in the event of divorce. I further reject the Wife’s claim there was an agreement by the Husband either to gift her the Former Matrimonial Home or to waive all his claims against the same.

D. MATRIMONIAL ASSETS

30.  In considering the proper ancillary relief order to be made, the court is to consider the factors set out in s.7 Matrimonial Proceedings and Property Ordinance. HHJ Wong in the case of SSLT v SMFC [2019] HKFLR 458 has succinctly set out the well-known principles enunciated in LKW v DD [2011] HKFLR 106 to be considered when considering ancillary relief applications. Paragraphs 25 and 26 of HHJ Wong’s judgment reads as follows:

25. The principles upon which this case is to be considered are the conventional ones, namely those set out in section 7 of MPPO which confers a broad discretion on judges dealing with ancillary relief. That said, these principles are to be interpreted in the light of the Court of Final Appeal judgment in LKW v DD [2011] HKFLR 106, (2010) 13 HKCFAR 537. In that case, Riberio PJ referred to the four principles which are applicable to all ancillary relief proceeding, viz, (1) the objective of fairness: [56], (2) rejection of discrimination: [57], (3) the yardstick of equal division: [58] – [61] and (4) avoidance of ‘minute retrospective investigation’: [62] – [69].

26. Ribeiro PJ further set out the steps to be taken by the courts in undertaking the exercise. In brief, they are:

(1) The ascertainment of the financial resources of each of the parties calculated as at the date of the hearing: [71] to [73];

(2) The assessment of the parties’ financial needs. If the total resources are not enough to meet the parties’ needs, the s.7 exercise should stop at this step and there is no room to apply any sharing principle: [74]to [79];

(3) If surplus assets would remain after the parties’ needs have been catered for, the next step should normally be for the court to apply the sharing principle to the parties’ total assets, with a yardstick of equal division as part of that principle. This means that the total assets should be divided equally between the parties unless there is good reason for departing from an equal division: [80] to [82];

(4) In considering whether good reasons exist for departing from equal division, the answer is to be found in the terms of s.7 and the implicit objective of a fair distribution of the assets. Factors like source of the assets, conduct, financial needs, duration of the marriage, contribution to the family and compensation are all material considerations: [83] to [130]; and

(5) The weight to be given to each of the factors is a matter of discretion for the court: [131].

1) Parties’ undisputed assets and liabilities

31.  The following are the undisputed assets and liabilities of the parties:

1) The Husband:

a) Cash in bank accounts: $1,139,884

b) Liabilities: $3,149 (BOC credit card only – other liabilities are disputed)

2) The Wife:

a) Cash in bank accounts: $1,564,719

b) Securities: $6,103,633 (Although the sums stated in the bank statements are agreed, the Petitioner asks the court to make an adverse inference based on the drastic difference in value compared to the figures given in the first Form E.)

c) Sums owed to the Wife by WxGxxxx: $1,058,140

d) Valuable items: $105,000 (various disputed valuables are discussed below)

e) MPF: $224,765

f) Liabilities: $1,926,026 (excluding personal guarantee to BEA for Fxxxxxx’s loans)

32.  The disputed assets and liabilities of the parties are set out in summary below:

1) The Husband’s disputed Assets and Liabilities:

a) The Wife claims the sums dissipated from Fxxxxxx’s accounts should be added back: $6,236,500

b) Loans:

(i) The Husband claims he has loans to repay in the sum of $1,031,989.

(ii) The Wife denies the Husband’s said loans and believe they are false transactions.

c) According to the Wife’s calculations, the Husband’s net financial position should be $7,372,965.

d) The Husband claims his net financial position is $343,079

2) The Wife’s disputed Assets and Liabilities:

a) Insurance:

(i) The Wife claims the value of her insurance policies are worth $3,292,370.

(ii) The Husband claims the true value of the insurance policies should be the surrender value and not the guaranteed value: $5,926,983.40.

b) Sums owed to the Wife:

(i) The Wife claims the Husband owes her a total sum of $1,718,801.

(ii) The Wife claims Fxxxxxx owes her $1,794,694.

(iii) The Husband denies the above loans.

c) Valuable items:

(i) The Wife claims her jade pendant, Rolex watch, and her Mercedes Benz car is worth a total of $440,000.

(ii) The Husband claims the same are worth $528,000.

d) Liabilities:

(i) The Wife claims the Husband should be fully responsible for the repayment of the Wife’s personal guarantee of $3,200,000, which represents the loan to Fxxxxxx charged against the Former Matrimonial Home.

(ii) The Husband claims this sum should be repaid by the parties in equal shares.

e) Add backs:

(i) The Husband claims the value of the renovations to the Former Matrimonial Home should be added back to the value of the Former Matrimonial Home: $1,843,226.

(ii) The extra money used to secure the purchase of the Wife’s vehicle should be added back: $250,000.

f) The Husband claims the Wife’s net financial position is $15,781,851 (excluding the value of the Former Matrimonial Home).

g) The Wife claims her net financial position to be $11,176,096 (excluding the value of the Former Matrimonial Home).

2) The Wife’s Assets and Liabilities

33.  The Wife’s purported loans to Fxxxxxx and the Wife’s personal guarantee for Fxxxxxx’s debts will be discussed in a separation section below.

(i) The Wife’s Insurance Policies

34.  The Wife has calculated the value of her insurance policies by taking the “guaranteed cash value” only. Her rationale is that since any non-guaranteed components are not certain, her insurance should only be considered at the guaranteed cash value.

35.  The Husband strongly contests the Wife’s calculations and believes the insurances should be valued at their policy value. I agree.

36.  I am of the view that although it is true the non-guaranteed components of the insurance policies are not certain; it is only the precise value that is uncertain. It does not mean the Wife would only receive the guaranteed cash value at the time of surrender. It is likely that the Wife would receive a sum over and above the guaranteed cash value. To take the guaranteed cash value would be a gross underestimate of the insurance policies.

37.  In such circumstances, I am of the view the Wife’s insurance policies should be considered at their policy value as at the date of the hearing. As for the policy value of the Manulife policy, I accept the value should be considered as the surrender value. Since the documents only indicate the surrender value at 55 years old and 60 years old, I am of the view an average of those two figures would reflect the surrender value at the Wife’s present age. I accept counsel’s submission that the figure of USD$58,000 is reflective of the policy value.

38.  I therefore reject the Wife’s proposed value of all her insurances and find the total value of the Wife’s insurance policies should be $5,926,983.40.

(ii) Wife’s valuables and car

39.  Having considered Mr. Chan’s submissions on the value of the Mercedes Benz and the evidence the Husband produced on the same, I do not accept the Mercedes Benz should be valued at $468,000. The Husband produced a print out of a similar car for sale online for the price of $468,000 to support his claim. However, the print out is lacking in various particulars, for example the number of previous owners, the mileage, and whether it has any options installed. It is trite to say that prices on the second-hand market vary drastically depending on factors like mileage and the numbers of previous owners. Furthermore, this is merely the asking price by the owner. There is no evidence that similar cars have been sold at the same asking price. I therefore accept the Wife’s value of $400,000 as being the value of her car.

40.  In so far as the Husband seeks to add back the sum of $250,000 paid by the Wife to secure the car, I have considered the jurisprudence on add-backs and the recent case of LCC v LTLA [2024] HKCA 406. In LCC v LTLA, the Court of Appeal succinctly summarized the historical jurisprudence and principles relating to add-backs at paragraphs 27 – 61 of the judgment. I shall not repeat the same.

41.  Having considered the relevant case law, the evidence, and the submissions of the parties, I am of the view that this is not a “wanton dissipation of assets” and/or expenditure. I also do not find the expenditure to involve any gross misconduct on the Wife’s part. The Wife wanted to secure a particular type of car and due to its popularity, she had to pay an extra premium of $250,000. Although I agree in comparison to the value of the car, the premium seems to be a hefty price to pay, there is no evidence to challenge the bona fide nature of the said payment. There is no evidence to rebut the Wife’s evidence that a premium had to be paid for the purchase of the said car. In all the circumstances, given the parties’ standard of living, the price of the car was not extravagant even if the premium was taken into consideration. I therefore do not accept the premium paid should be added back into the matrimonial assets.

42.  As for the jade pendent and the Rolex watch, I agree with Mr. Chan’s submissions in that there is no explanation as to why the Wife suddenly depreciated the value of the same in her second form E. I therefore accept the value of the pendant and the Rolex Watch should be $30,000 each as per her first Form E.

(iii) The Wife’s stocks and cash in bank accounts

43.  The Petitioner asks the court to make adverse inferences against the Wife due to the drastic decrease in value of stocks and cash in bank accounts in her second Form E.

44.  I have considered submissions of Mr. Chan. I do not accept his submissions.

45.  Firstly, Mr. Chan has not proposed a specific inference to be drawn. It is therefore unclear what adverse inference the Husband is asking the court to draw. Secondly, there is no evidence to suggest there has been a deliberate dissipation or that the funds are now elsewhere which should be added back.

46.  I therefore take the value of the bank account and the stocks as evidenced by the various bank statements to be the correct value for the purposes of calculating the Wife’s assets.

(iv) WxGxxxx

47.  The parties do not dispute the Wife is the sole shareholder and director of WxGxxxx.

48.  WxGxxxx is valued at $3,156,000 by the singe joint expert. In reaching this valuation, the single joint expert has not calculated the debt of $1,058,140 owed to the Wife because the Wife represented to the expert the said debt had been settled. However, the parties in the Updated Schedule of Assets and Liabilities continue to count this debt as part of the Wife’s assets. This clearly means WxGxxxx has in fact not settled the debt to the Wife. Hence in calculating the division of assets and to avoid double counting of the said debt, I am of the view the proper value of WxGxxxx should be $2,097,860 (that is, $3,156,000 - $1,058,140 = $2,097,860).

49.  In the Joint Schedule of Companies and Landed Properties submitted by the parties, the Wife claims WxGxxxx should not form part of the matrimonial assets. However, there were never any submissions on this made by Mr. Chow in his opening and closing submissions. Moreover, it was not put to the Husband during trial that WxGxxxx, for whatever reasons, should not be considered part of the matrimonial assets.

50.  Other than the one line contention made in the Joint Schedule of Companies and Landed Properties, I note there is simply no further evidence or submission being made to support the claim that WxGxxxx should not be considered a matrimonial asset.

51.  WxGxxxx was established during the marriage in 2018. It is clear from the evidence that the Wife used the earnings of WxGxxxx to finance her financial contributions to the marriage. I therefore find WxGxxxx to be a matrimonial asset that should be taken into consideration when deciding how the matrimonial assets should be divided.

3) Fxxxxxx

52.  The Husband owns 87% of the shareholding of Fxxxxxx and the Wife owns 13% of the remaining shares. Though the Wife owns 13% of the shares in Fxxxxxx, the parties do not dispute the Husband has sole control over Fxxxxxx’s operations and finances.

53.  There are several issues raised by the parties relating to Fxxxxxx:

1) Whether Fxxxxxx is still actively operating either in its own name or through other companies controlled by the Husband.

2) Whether Fxxxxxx is to be considered part of the matrimonial assets and consequently whether Fxxxxxx’s debt of $3,200,000 charged against the Former Matrimonial Home should be borne by the Husband solely or should be paid by the parties equally.

3) Whether Fxxxxxx is indebted to the Wife in the sum of $1,794,694.

(i) Whether Fxxxxxx is a matrimonial asset and whether its debt of $3,200,000 should be solely repaid by the Husband.

54.  Although Mr. Chow made various submissions about the independent finances of the parties and that the Wife has never been involved with the operations of Fxxxxxx, it is telling to note Mr. Chow never in his opening or closing submissions denied Fxxxxxx is part of the matrimonial assets.

55.  I note the parties do not dispute the following salient facts:

1) The Husband’s sole source of income during marriage was the income generated from Fxxxxxx.

2) The Husband was responsible for making mortgage repayments of the 1^st and 2^nd Matrimonial Home, including the Former Matrimonial Home of which he made repayments from 2003 – 2017. The Wife subsequently took over the responsibility of making repayments for the Former Matrimonial Home from 2017 – 2021.

3) The Husband’s ability to pay off the Former Matrimonial Home’s mortgage payments for the period from 2003 – 2017 came from the income generated from Fxxxxxx.

4) Fxxxxxx was established after the parties were married.

56.  The above matters clearly point to the fact that Fxxxxxx was responsible for generating income which financially benefitted the family. The earnings of Fxxxxxx paid off the mortgage payments of the Former Matrimonial Home for 15 years and the mortgage repayments for the 1^st and 2^nd Matrimonial Home. Furthermore, on the Wife’s own evidence, the Husband was earning more than the Wife in the initial stages of the marriage. At the time of marriage, the Wife was only earning a salary of $6,000 per month. It was not until after 2000, the Wife was able to earn a salary of $75,000 per month. Hence, for the Wife to claim that the parties have always been financially independent is misleading as it is clear that the Husband must have supported the family in the initial stages of the marriage. Furthermore, for the Wife to suggest Fxxxxxx should only be considered as the Husband’s asset because it had no role to play in the acquisitions of the various matrimonial homes, including the Former Matrimonial Home, is disingenuous to say the least. I am of the view Fxxxxxx is to be regarded as matrimonial asset for the purposes of considering the parties’ ancillary relief claims.

57.  Since Fxxxxxx is a matrimonial asset, the liabilities of the Fxxxxxx cannot segregated from the calculation of the total value of the matrimonial assets. I therefore reject Mr. Chow’s submissions that the repayment of Fxxxxxx’s debts as charged against the Former Matrimonial Home should be the sole responsibility of the Husband.

(ii) Whether Fxxxxxx is still in active operations.

58.  There is no dispute the official records show Fxxxxxx became dormant since September 2021 and has ceased operations. This is confirmed by the single joint expert report dated 5 January 2024 (“the Fxxxxxx Expert Report”). According to the Fxxxxxx Expert Report, Fxxxxxx has a negative value of -$3,659,000.

59.  The Wife claims that Fxxxxxx’s dormancy is a façade and in fact Fxxxxxx continues to operate via a company in Dongguan China referred to as “Txxx Hxx”.

60.  I note the Wife never sought to join Txxx Hxx or its legal owner, Ms Shang, to the present proceedings. There was never any preliminary issue taken out by the Wife asking the court to rule on whether the Husband is the true beneficial owner of Txxx Hxx or that the value of Txxx Hxx is to be counted as part of the matrimonial assets. The Wife merely makes an allegation of diversion of business by asking the court to draw inferences based on two matters alone: 1) the relationship between the Husband and Ms Shang and 2) there are various business transactions between Fxxxxxx and Txxx Hxx.

61.  Leaving aside whether it is even appropriate for this court to consider the said allegation without the proper parties before it and/or even any proper interlocutory application to deal with the same, I set out my analysis of the Wife’s allegation below.

62.  Having considered the evidence, I do accept the Husband has not been forthcoming as to whether his relationship with Ms Shang is continuing and whether their relationship is as distant as the Husband tries to portray it to be. Given the Husband admits to seeing his daughter frequently and that his accommodation in China has been provided by Ms Shang and her family, I agree with Mr. Chow’s observations that it seems the Husband’s relationship with Ms Shang is likely to be continuing and that their relationship is not as distant as the Husband portrays. In fact, the existence of the continuing relationship would explain why the Husband admitted he would, at times, help out at Txxx Hxx. It would also explain why the Husband has been able to enjoy free accommodation when he was in China.

63.  However, the mere fact the Husband continues to be in a relationship with Ms Shang does not mean that Ms Shang’s company automatically belongs to the Husband as well.

64.  During the trial, Mr. Chow cross-examined the Husband extensively on various documents which purportedly show transfers of money between Fxxxxxx and Txxx Hxx. The Husband explained the transfers were due to business transactions between the two companies up until July 2021. Furthermore, the Husband explained the last payment made to Txxx Hxx was in October 2021 and was for payment of rent. I note the Wife has been unable to produce any evidence to show there were transfers between the companies after October 2021 or that the Husband has diverted all of Fxxxxxx’s business to Txxx Hxx. There is simply no documentary evidence or contemporaneous evidence to rebut the Husband’s explanation for the transfers.

65.  Based on the evidence produced before me, I am not satisfied I can make any inference that Fxxxxxx continues to operate through Txxx Hxx. Moreover, I do not accept that the Husband is the beneficial owner of Txxx Hxx or that Txxx Hxx is one of the sources of his income.

(iii) Fxxxxxx’s purported debt to the Wife of $1,794,694 and the Wife’s purported loans to the Husband in the sums of HK$721,781 and RMB¥906,382.20

66.  In considering the abovementioned sums and whether such sums are loans as claimed by the Wife, it is important to consider the relationship between WxGxxxx and Fxxxxxx, and the parties’ marital financial arrangements.

67.  Under cross-examination and in her affirmation, the Wife does not deny the parties shared marital financial responsibilities. The Husband was mainly responsible for making mortgage payments and the Wife was mainly responsible for all other household expenses. The Husband had made mortgage repayments for three of the matrimonial homes, save and except the mortgaged repayments for the Former Matrimonial Home after 2017 which were made by the Wife.

68.  Although the parties are in dispute as to the extent of how and whether the Husband also contributed to other household expenses, the parties do not dispute the they mainly shared their marital financial responsibilities.

69.  As for the relationship between WxGxxxx and Fxxxxxx, it is clear that even on the admission of the parties, there were business transactions between the two companies. On the evidence produced, WxGxxxx would issue purchase orders to Fxxxxxx on a frequent basis. In the financial year of 2021, WxGxxxx and Fxxxxxx had 28 business transactions as recorded in the document entitled “Balance transferred to director account extracted from ledger of Fxxxxxx [omitted] for the year ended 31 March 2021”.

70.  The Wife also admitted that for the period from 2018 – 2021, WxGxxxx rented one room from Fxxxxxx’s office as its office space. In other words, the two companies were essentially sharing the same office space for a period of 3 years.

71.  Furthermore, according to the Fxxxxxx’s Financial Statements for the year 2021, there is a loan facility extended to WxGxxxx through the Wife in her capacity as director of Fxxxxxx. The item reads: “Maximum liabilities of the company for guarantees or securities given at the beginning of the year $8,800,000; at the end of the year $8,800,000”.

72.  It can be seen that the operations of WxGxxxx and Fxxxxxx were intertwined and both companies interact frequently. In such circumstances, I cannot rule out the possibility that at least some of the advances from the Wife to Fxxxxxx relate to business transactions between WxGxxxx and Fxxxxxx. Moreover, I note the purported loan sum of $1,794,694 is unsupported by Fxxxxxx’s Audited Report as compiled by the company’s auditors.

73.  I therefore do not accept the Wife’s claim she lent a sum of $1,794,694 to Fxxxxxx and only accept the amount due to the Wife owed by Fxxxxxx is $993,450 as per the company’s audit report for the financial year ending 31 March 2021.

74.  In so far as the Wife purports to have made loans to the Husband in the total sum of HK$1,718,801 (on the assumption the RMB:HKD exchange rate is 1.10:1), I note the following:

1) The Wife conceded that most of the sums were lent during the COVID pandemic when the Husband was unable to return to Hong Kong.

2) In her affirmation, she explained that she did not think much about it when the Husband asked her to transfer the money due to Fxxxxxx’s financial difficulties.

3) According to the Wife, the Husband suggested re-mortgaging the Former Matrimonial Home to raise funds for Fxxxxxx. Since the Wife did not want the Former Matrimonial Home to be re-mortgaged, she transferred money to the Husband. There is no evidence the parties understood these to be loans to the Husband.

4) Under cross-examination, the Wife admitted that some of the sums she claims to be her loans to the Husband are cited in her email to Fxxxxxx entitled “Payment tracker for Fxxxxxx”. The email was sent from the Wife’s business email to a staff in Fxxxxxx.

75.  Having regard to the above, and the background between WxGxxxx and Fxxxxxx, I am of the view that even if the Wife made transfers to the Husband in the sums she alleges, there was never consensus between the parties that these were loans from the Wife to the Husband. Even taking the Wife’s case to its highest, there were never any loans intended to be created. There is no evidence the parties talked about repayment terms or lending terms. Summarizing the Wife’s evidence, the Husband requested the Wife to make monetary transfers and the Wife made them. There is no evidence there were conditions attached to the transfers or that there was a need to repay the same. Furthermore, it is clear that when the Wife made the said transfers, these transfers were intermingled with the finances between WxGxxxx and Fxxxxxx.

76.  Spousal financial transactions cannot be considered akin to commercial transactions. In the family context, it is not uncommon for spouses to make unconditional monetary transfers to each other. This is because the parties usually pool their financial resources together and there is no clear distinction between their finances. Having considered the evidence, I am of the view that during the parties’ marriage, their finances, including the operation of their companies, were intermingled. As stated by the Wife, the parties considered themselves sharing the financial responsibilities. The Wife’s explanation of not having given much thought before the transfers were made is consistent with the parties’ arrangement throughout the marriage.

77.  By reason of the matters set out above, I do not accept the Wife made loans to the Husband in the sums alleged.

4) Value of the Former Matrimonial Home

78.  The Wife does not dispute that in 2022, substantial renovations were carried out in the Former Matrimonial Home. The total sum paid for the renovations was $1,843,226.

79.  Mr. Chan argues that due to the extravagant renovations done, the value of the renovations should be added or reflected in the true value of the Former Matrimonial Home.

80.  Under cross-examination, the single joint expert conceded that his valuation of $15,800,000 was made without doing internal inspections of the premises, and that the valuation was made on the assumption the premises was in reasonable condition. The single joint expert further agreed that if new and substantial renovations were done, the value of the renovations should be added back to the value of the Former Matrimonial Home. I accept his opinion on the same.

81.  For reasons I have given above, I am of the view Fxxxxxx’s debt of $3,200,000 charged against the Former Matrimonial Home should be borne by the parties in equal shares. Hence, to reflect the true value of the same, the charge of $3,200,000 should be deducted from the value of the Former Matrimonial Home.

82.  I therefore agree with Mr. Chan that the true value of the Former Matrimonial Home should be $17,643,226 minus the charge of $3,200,000 for Fxxxxxx’s debts. Hence, I find the correct value of the Former Matrimonial Home to be $14,443,226.

5) The Husband’s Assets and Liabilities

83.  The Wife disputes the following matters regarding the Husband’s assets and liabilities:

1) Whether the Husband had dissipated his and/or Fxxxxxx’s assets in the sum of $6,236,500.

2) Whether the alleged loans of the Husband are genuine.

84.  Other matters purportedly in dispute as per the Updated Agreed Schedule of Assets and Liabilities have been abandoned by Mr. Chow’s calculation of the Husband assets submitted on the day of closing submissions.

(i) Purported dissipation of $6,236,500.

85.  On the day of closing submissions, I asked Mr. Chow to set out the Wife’s case on what the matrimonial pot should be and to provide his calculations on the same. Mr. Chow then submitted the Wife’s calculation of the Husband’s assets and liabilities and in the said calculation the Wife claims a sum of $6,236,500 should be added back to the Husband’s assets.

86.  Mr. Chow in his calculation states that the sum of $6,236,500 is calculated as follows:

“Based on the 2^nd Affirmation of the Petitioner that during the period between 27^th February 2021 and 6^th June 2022 – he had withdrawn RMB923,926 (16 months) from Fxxxxxx’s Account to his own China Agricultural Bank – RMB57,745 per month x 9 years”

87.  I reject the Wife’s claim for the following reasons:

1) The Wife does not make the same dissipation claim of $6,236,500 in any of her affirmations. The sums purportedly dissipated by the Husband as mentioned in her 1^st Affirmation only add up to RMB¥931,601 (equivalent to HK$1,024,761.10 at exchange rate of 1.10:1). There is therefore no evidence to support the calculation of the said sum to be added back.

2) There is no evidence to support and/or to explain the calculation made in Mr. Chow’s submissions as being correct.

3) The Husband was never given an opportunity to respond to this last minute allegation of adding back over $6 million dollars:

a) Mr. Chow did not put his calculation to the Husband during cross-examination and did not put to the Husband the Wife’s case on the adding back of the said sum.

b) In the two Questionnaires filed by the Wife, she never put forward the sum of $6 million odd to be added back. Furthermore, there are 5 transactions mentioned at paragraph 27 of the Wife’s 1^st Affirmation relating to her case on adding back which were omitted in the Wife’s Questionnaire when she questioned the Husband about the withdraws from his China Agricultural Bank account. The Husband was not given an opportunity to respond to the transactions that were not mentioned in the Questionnaire.

4) Of the sums mentions by the Wife in her 1^st Affirmation, the Husband has already provided detailed answers in his Answer to the Wife’s 2^nd Questionnaire. The Wife has not adduced any evidence to rebut the Husband’s explanation. Having considered the answers provided and in absence of any evidence in rebuttal, I accept the Husband’s answers regarding the withdrawals.

88.  I therefore find the Wife has not proved the said sum should be added back to the Husband’s assets for the purposes of calculating the division of matrimonial assets.

(ii) The Husband’s loans from third parties

89.  The Husband claims to have received loans from third parties in the total sum of $1,031,989. The break down is set out below:

1) Loan from Wx Cxxxx Hxx: $600,000.

2) Loan from Txxx Kxx Fxx: $100,000.

3) Loan from Lxx Mxx Fxxx: RMB¥120,000 (equivalent to HK$134,059).

4) Loan from Wxxx Sxx Fxxxx: RMB¥180,000 (equivalent to HK$197,930).

90.  The Wife disputes the authenticity of these purported loans.

91.  Having considered the evidence, I do not accept the Husband’s claim of being in debt to the four persons and in the sums as set out above.

92.  It is telling that none of the creditors have filed a witness statement in support of the purported loans. The Husband claims Wx is his nephew, Txxx is his brother and the rest are good friends (with Wxxx having been a friend for over 20 years). There has been no explanation as to why these creditors have not filed any supporting evidence to assist the Husband, especially given their respective relationship with the Husband.

93.  I also note there are no contemporaneous documents provided to prove the existent of the loans purportedly made by Txxx, Lxx and Wxxx. When Mr. Chow cross examined the Husband and put to him that in fact the Husband is unable to say how the money was lent to the Husband, he said he had no further response. I found the Husband’s evidence relating to these loans to be evasive and lacking in important details. He is unable to recall how he received the loans from Lxx and Wxxx, and the repayment terms or details of each loan. I find it incredible for the Husband to be unable to recall the details of these loans given the substantial sums borrowed.

94.  In so far as the loans from Txxx and Wx, the Husband has been unable to provide a reasonable explanation as to why there were IOUs written for previous loans but none for the present loans. The Husband claims there was no IOU for Wx’s loan because the Husband was not in Hong Kong he was in urgent need of money. As for his brother’s loan, the Husband also gave the same explanation about urgency and added that since they were related and the sum lent was a small sum, there was nothing special about not writing an IOU.

95.  I find these explanations to defy common sense. Even if the money was lent on an urgent basis, there was no reason why a new IOU could not have been written after the money was lent. Moreover, the past IOUs given by the Husband to Txxx and Wx are simple and take no more than 5 minutes to draw up. There is no explanation why a similar simple IOU could not be drawn up for the present loans.

96.  In so far as the Husband has provided two deposit slips to prove Wx had made a deposit of $600,000 into his bank account, I note there is no contemporaneous evidence to support these transfers were loans to the Husband. Wx’s deposits into the Husband’s account can be for a variety of reasons. Without any contemporaneous evidence to support the Husband’s claim that such sums were loans, I do not accept the sums were loans to the Husband.

97.  I therefore do not accept the Husband’s claim that he is indebted to others in the sum of $1,031,989.

98.  By reason of the matters above, I set out my findings of the parties assets and liabilities:

99.  The Husband:

Value of China property (agreed to add back Husband’s 1/3 interest)	$238,333
Cash in bank accounts	$1,139,884
Liabilities	($3,149)
Total	$1,375,068

100.  The Wife:

Former Matrimonial Home	$14,443,226
WxGxxxx	$2,097,860
Cash in bank accounts	$1,564,719
Stocks	$6,103,633
Insurance policies	$5,926,983.40
Debts owed to the Wife by Fxxxxxx and WxGxxxx	$2,051,590 ($993,450 + $1,058,140)
Personal items	$565,000
MPF	$224,765
Liabilities	($1,926,026) ($3,200,000 has not been counted as the said charge has been reflected in the value of the Former Matrimonial Home)
Total	$31,051,750.40

101.  The total matrimonial assets of the parties is $1,375,068 + $31,051,750.40= $32,426,818.40.

E. THE WIFE’S EARNING CAPACITY

102.  The Wife claims WxGxxxx is no longer active and has been dormant. However, under cross-examination she admits that she is still working and that the company is not entirely dormant but is running at a minimum capacity. She admits that she is still maintaining her relationship with the customers and the banks. Although she claims she is not optimistic, she expressed she would continue her business operations if circumstances permit.

103.  Hence, even on the Wife’s own evidence, she is not retired and still has earning capacity.

104.  I have considered the Wife’s purported monthly expenditure of $94,219.66 as set out in her latest Form E. Although I am of the view some expenses are grossly inflated, even on the Wife’s inflated expenditure, I am of the view that the Wife still has the earning capacity to earn sufficient income to support her own financial needs.

F. THE HUSBAND’S EARNING CAPACITY

105.  I do not repeat my findings in respect of Fxxxxxx. In summary, I accept that Fxxxxxx has ceased operations and is no longer a source of income for the Husband.

106.  The Wife asks the court to infer the Husband is operating some sort of trading business where it seems he is acting as a buyer for various clients. The Wife points to numerous payments made during 2023 to a network technology company by the name of上海XXXXXXXX有限公司 (“the Shanghai Company”).

107.  The Husband admits the transactions are online shopping payments. He further admits that upon the request of his friends, he would help them buy various goods such as medicine. He denies operating a trading business or acting as a buyer.

108.  Having considered the evidence before me, I am of the view that there is insufficient evidence to draw an inference the Husband is operating a new trading business. There is no evidence to prove what was purchased and the quantity of the items purchased. There is no evidence to rebut the Husband’s assertion that the purchases were for assisting friends. There is also no evidence to prove the Husband made any profit from assisting his friends.

109.  Although I find Fxxxxxx no longer in operation and that the evidence does not prove the Husband is operating a trade business, this does not mean he has no earning capacity.

110.  The Husband has been an entrepreneur for most of his working life. He has business connections in China and Hong Kong. It is clear Ms Shang, with whom he obviously shares a close relationship, is operating a business herself. In such circumstances, I am of the view that if the Husband wished to set up a new business or revive Fxxxxxx’s business using a new corporate vehicle, he would be capable of doing so. I am of the view that the Husband is not as destitute as he claims to be.

111.  Having considered the Husband’s purported monthly expenses of $15,396 as set out in his latest Form E, I am of the view that the Husband is capable of earning enough income to support his own financial needs.

G. CLEAN BREAK AND PROPORTION OF DIVISION

112.  I shall not repeat the trite principles behind the “clean break principle” as enunciated in LKW v DD [2010] 6 HKC 528 and confirmed in the case of Mimi Kar Kee Wong Hung v Raymond Kin Sang Hung (No 2) (2015) 18 HKCFAR 210.

113.  I note that both parties agree this is not a “needs case”.

114.  The parties agree there should be a clean break. I also agree. The parties have been married for over 30 years and do not have children. Both parties have equal earning capacity and are able to meet their own financial needs. I am of the view that in considering the division of matrimonial assets, this court should adopt the clean break principle.

115.  Mr. Chow submits that the Wife should be entitled to a 68% division of assets and asks this court to depart from the equal sharing principle. When I asked Mr. Chow what “good reasons” the Wife relied on to justify departure from the equal division, Mr. Chow he only relies in 2 factors: the nuptial agreement and the parties have separate finances.

116.  For reasons I have already given in this judgment, I do not accept there was a nuptial agreement between the parties. Furthermore, I gave reasons as to why I did not accept the Wife’s claim that the parties were financially independent throughout the marriage or that they kept their finances separate during the marriage.

117.  However, I do accept that the debts of Fxxxxxx and WxGxxxx should be equally shared between the parties since I have found both companies to be matrimonial assets. In so far as the Husband claims the loan by the Wife to Fxxxxxx should be written off due to Fxxxxxx illiquidity, I disagree. Since the Fxxxxxx is a matrimonial asset, it is clear the total matrimonial assets are sufficient to cover the Wife’s loan. It would be unfair for the Wife to have the loan counted as her asset but not have the repayment realized and for the Husband to reap the benefit of having the Wife’s share in the matrimonial assets depleted by the same sum. This is especially so when clearly the matrimonial assets are sufficient to cover Fxxxxxx’s indebtedness. The Husband’s reasoning that Fxxxxxx’s charge of $3,200,000 should be shared equally by the parties but other debts to the Wife should be written off is fallacious and logically incoherent. If the Husband agrees Fxxxxxx’s charge should be shared equally by the parties, its debts must also be shared equally. Hence, in this regard, I agree that there should be a slight adjustment to ensure proper equalization of the parties’ assets.

118.  The same reasoning applies to the debt of WxGxxxx to the Wife. It would not be fair to count WxGxxxx as an asset but the liability to the parties be borne by the Wife solely. The equalization of the debts owed by WxGxxxx have been dealt with in my calculation of the proper value of WxGxxxx. As previously explained, by reason of the parties calculation of WxGxxxx debt to the Wife as part of the Wife’s current assets, the proper value of WxGxxxx should be the single joint expert’s value minus the debt owed to the Wife.

119.  I set out my calculation of the parties’ respective share in the matrimonial assets:

$32,426,818.40 / 2 = $16,213,409.20 (rounded up to nearest cent) each

Husband’s share: $16,213,409.20 – ($993,450/2) = $15,716,684.20 (equivalent to 48% of matrimonial assets – rounded down to nearest whole figure)

Wife’s share: $16,213,409.20 + ($993,450/2) = $16,710,134.20 (equivalent to 52% of matrimonial assets – rounded up to nearest whole figure)

120.  By reason of the above, the Wife should pay the Husband a total of $14,341,616 (rounded down to the nearest dollar) in order to equalize the parties’ assets.

H. WHETHER THE FORMER MATRIMONIAL HOME SHOULD BE SOLD

121.  I have considered the submissions of the parties and the various proposals put forward.

122.  I decline to make an order for sale of the Former Matrimonial Home for the reasons given below.

123.  The Wife’s liquid assets (cash in bank account and stocks) amount to a total sum of $7,668,352. Hence, the Wife has sufficient liquid assets to pay the Husband a lump sum equivalent to almost half of the Husband’s share in the matrimonial assets. The other half of the Husband’s share can be easily raised by a mortgage of the Former Matrimonial Home since the previous mortgage has been discharged (save and except the charge relating to Fxxxxxx’s facility of $3,200,000). I do acknowledge that any order for payment of a lump sum must give sufficient time for the Wife to raise the funds and the time may be prolonged if she is to take out a mortgage on the Former Matrimonial Home.

124.  The Wife has carried extensive renovations to the Former Matrimonial Home. This shows she does not intend to move out. Since she has sufficient assets to pay out the Husband’s share of the matrimonial assets, it is not necessary to sell the Former Matrimonial Home in order to attain equalization of assets between the parties.

125.  I therefore decline to make an order for sale of the Former Matrimonial Home.

I. SUMMARY AND ORDERS

126.  By reason of the matters set out in this judgment, I order the Wife to make a lump sum payment to the Husband in the sum of $14,341,616 in the following manner:

1) The Respondent shall pay to the Petitioner a lump sum in the total sum of $14,341,616 by 4 instalments as follows:

a) The 1^st instalment of $1,000,000 to be paid within 30 days from the date of the Decree Absolute.

b) The 2^nd instalment of $4,500,000 to be paid within 6 months from the date of the pronouncement of the Decree Absolute.

c) The 3^rd instalment $4,500,000 to be paid within 9 months from the date of the pronouncement of the Decree Absolute.

d) The 4^th instalment of $4,341,616 to be paid within 12 months from the date of the pronouncement of the Decree Absolute.

2) Save and except the above lump sum payment, all remaining ancillary relief claims the parties may have against each other be dismissed upon the making of this order.

J. COSTS

127.  I have considered the open proposals by the parties.

128.  I find the Husband to be largely successful in the present proceeding. Although I may not have adopted every figure proposed by the Husband as being accurate, his open proposal is in principle the same as the approach this court has adopted.

129.  I therefore make a costs order nisi as follows: Costs of the Ancillary Relief Proceedings (including all costs reserved) be to the Husband, to be taxed if not agreed, with certificate for counsel. Unless any party applies to vary the costs order within 14 days hereof, the costs order shall become an order absolute.