LP v. XX

FCMC 14086 / 2009

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES

NUMBER 14086 OF 2009

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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 pursuant to s.3 Matrimonial Proceedings and Property Ordinance Cap 192 (MPPO).  The wife also seeks provision for the two children of the family.

Background

2.  The parties married on the XX June 1988.  They have two young children, a boy who is 5 and a little girl who is 2 1/2 years old.

3.  The wife issued proceedings based on the husband’s unreasonable behaviour on the 10 November 2009. The husband has indicated in his Form 4 that he will not defend the divorce but that he does wish to be heard on other matters. On the same date the wife issued an ex parte mareva style injunction and an ex parte non-molestation and ouster injunction. She also sought interim custody and care and control of the children. The summonses were heard “on notice” and have largely been dealt with on the basis of undertakings and by consent. On the 16 November 2009 the husband agreed to pay maintenance pending suit for the wife of HK$15,000 per month plus maintenance for the two children in the sum of HK$5,000 per month each, making a total of HK$25,000 per month. On the 18 January 2010 the wife issued a further summons seeking an increase in the maintenance pending suit to HK$40,000 per month or such sum as the court thinks just. On the 21 January 2010 I ordered that pending the present hearing and on an interim interim basis the maintenance pending suit for the wife be increased to HK$20,000 per month for herself and interim interim maintenance for the children be increased to HK$15,000 per month per child, making a total of HK$50,000 per month. The wife has since indicated that she is seeking HK$102,900 per month plus an ongoing undertaking from the husband to pay for the rent of HK$35,000 (inclusive of management) for the property in which she now lives with the children, plus an undertaking to pay for the school fees and other related school expenses. For the avoidance of doubt I accept that the previous orders were made on an interim basis and that this is not an application to vary an original order, nor is it an application to appeal through the back door.   

The central issue

4.  The central issue is how much the husband should now pay to the wife as maintenance pending suit for herself and interim maintenance for the children, bearing in mind his ability to pay.

Maintenance pending suit

5.  The ordinance states that the only governing principle is that the court shall make such order, as it considers reasonable.  (See s.3 Matrimonial Proceedings and Property Ordinance 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 if there is no agreement in the meantime.

what really matters is the immediate and reasonable requirements of the wife balanced against the ability of the husband to pay for them, assessed using a broad-brush approach. (See also paragraphs 16.17 of Rayden, 18^th edition).

The Evidence

6.  I must now turn to consider the issues, the law, and the parties’ evidence as set out in their affirmations, their Form E’s, together with and the submissions made by their solicitors.

Discussion

How much should the husband now pay to the wife as maintenance pending suit for herself and interim maintenance for the children, bearing in mind his ability to pay?

7.  The wife seeks HK$102,900 per month plus undertakings to pay for the rent and school fees. She puts her case on expenses as follows:

General
Item	Amount in form E	Updated Amount (Feb 2010)
Rent	30,000.00
Mortgage instalments	N/A	N/A
Utilities (electricity, gas, rates, telephone & water)	3,000.00	4,500.00
Management fees	N/A	N/A
Food	10,000.00	10,000.00
Household expenses	2,500.00	4,500.00
Car expenses	N/A	N/A
Insurance premia	N/A	N/A
#Domestic helper(s)	4,500.00	5,700.00 **(+$3,300 air fare)
MPF contributions	N/A	N/A
Others (specify) Discovery Bay Club	N/A	2,500.00
Total monthly household expenses (a)	HK$50,000.00	HK$27,200.00

#Note: I am about to employ a new helper from the Philippines who insists on living out of the matrimonial home in respect of which the wage is HK$5,700 in order that she can provide accommodation, etc.

Personal
Item	Amount in form E	Updated Amount (Feb 2010)
Meals out of home	2,000.00	4,000.00
Transport	2,000.00	2,000.00
Clothing / Shoes	2,000.00	3,500.00
Personal grooming (including haircut and cosmetics) (4 facials per month)	2,500.00	4,000.00
Entertainment / presents	2,000.00	3,500.00
Holiday	6,000.00	6,000.00
Medical / Dental *	N/A	3,000.00
Massages**	N/A	2,500.00
Tax	N/A	N/A
Insurance premia	N/A	N/A
Contribution to parent	3,000.00	6,000.00
Dependent family members	N/A	N/A
Others (specify) Psychological / Marital counselling sessions:	N/A	4,000.00
Total monthly personal expenses (b)	HK$19,500.00	HK$38,500.00

Children
Item	Amount in form E	Updated Amount (Feb 2010)
School fees	13,500.00	*say 10,000
School books and stationery	700.00	700.00
Transport to school (including school bus)	1,000.00	1,000.00
Medical / Dental	500.00	500.00
Tuition & Extra	3,500.00
Curricular Activities	5,626.00
Son
Kumon English		1,200.00
Mandarin Lessons		800.00
Piano Lessons		1,200.00
Cello Lessons		600.00
Gymnastic/Basketball (Multisport or Discovery Bay Club Activity)		1,000.00
Painting		1,000.00
		4,800.00
Daughter
Playgroup (at Discovery Bay)		3,600.00
Ballet		800.00
Gymnastic/Painting		1,000.00
		5,400.00
Entertainment / presents	500.00	500.00
Holidays	6,000.00	6,000.00
Clothing / Shoes	2,000.00	2,000.00
Insurance premia	N/A	N/A
Lunches and pocket money	500.00	500.00
Other Transport	300.00	300.00
Child-minding fees – 4 hours per Sunday	N/A	1,000.00
Uniform	500.00	500.00
Others (specify) Psychological sessions for son **	N/A	4,000.00
Total monthly expenses for children (c)	HK$34,626.00	HK$37,200.00
Total Monthly Expenses (a+b+c)	HK$108,126.00	HK$102,900.00

8.  The husband’s case is not that he is reluctant to pay per se, but rather that he does not believe that certain items listed by the wife are justified. This seems to be based on the standard of living enjoyed by the parties previously. He presently has a base salary of US$400,000 per annum, with a guaranteed bonus for this year of US$600,000. The husband says that he has not yet received that bonus. In Hong Kong terms the husband’s base salary should therefore be in the region of HK$260,000 per month. In his Form E he says his income is HK$258,333 per month. He allows for tax at a rate of HK$46,625 per month. Therefore his net base income is a little over HK$200,000 per month.

9.  He offered to undertake to pay for the following:

a)     the wife’s rent in the sum of HK$35,000 per month which is inclusive of the management fee (I have noted that the lease is in his name)

b)    The school fees for the son and the kindergarten fees for the daughter. He will also undertake to pay for the school levy for both children and for the daughter’s school fees once she starts X School in the summer.

c)     He will undertake to reimburse the wife for reasonable medical/dental expenses incurred within 7 days, upon receipt of invoices

d)    He will undertake to pay for psychological sessions for the son upon the production of the invoices, but on a needs must basis. 

10.  In addition he said that he was willing to pay the following amounts:      

General
Utilities (electricity, gas, rates, telephone & water)	3,000.00
Food	10,000.00
Household expenses	2,500.00
	15,500.00
Personal
Meals out of home	4,000.00
Transport	2,000.00
Clothing / Shoes	2,000.00
Personal grooming (including haircut and cosmetics)   (4 facials per month)	2,500.00
Entertainment / presents	2,000.00
	12,500

General expenses

11. The husband says that he is not willing to pay for the wife’s new domestic helper complaining that there is no reason for the wife to employ a live out maid. That is as may be – nevertheless the wife has been used to having a domestic helper to assist her and she has chosen to employ a live out maid. I will allow her HK$5,700 per month for that purpose, plus HK$2,500 per month for the Discovery Bay Club. Thus, in total, I will allow the wife HK$23,700 per month under the head of general expenses. I will accept the husband’s undertaking to continue to pay the rent and management fees as set out above.

Wife’s personal expenses

12.          The husband has indicated that he is willing to pay for certain items under this head in the sum of HK$12,500 per month. He will also undertake to pay for the wife’s medical and dental expenses as set out above. I will accept that undertaking. He is not agreeable to paying for holidays in the sum of HK$6,000 per month (HK$72,000 per annum), or for the wife to have massages (said to be for a bad back) or to pay for psychological/marital counselling. I agree that HK$6,000 per month may be a little excessive for holidays. By the same token it is clear that the wife should be able to go away on holiday with the children and that this is an expense that will have increased from last year. He also objects to paying for an allowance for the wife’s Mother’s. I accept his argument in relation to the wife’s Mother. In so far as the other items are concerned, I will allow HK$4,500 per month for holidays and an additional amount of HK$3,000 per month to cover other miscellaneous items. Thus in total the husband should pay HK$20,000 under this head.

Children’s expenses

13.  As indicated I will hold the father to his undertaking to pay for the school and playgroup / kindergarten fees and school levy and to reimburse the wife for the children’s medical and dental expenses as set out above. The wife indicated during the hearing that the item under transport to school was not relevant for the time being. The husband said that he had no idea about the cost of the children’s extra curricular activities. He indicated that he would prefer to pay upon the production of receipts. He also said that he was happy to pay a round figure of HK$3,000 per month per child. The wife for her part said that she would prefer to receive a round figure, so that she was able to budget accordingly. She did not wish to receive payment upon the production of receipts. I tend to agree with the wife that she should receive a set sum for the children’s extra curricular activities. If one deducts the playgroup fees of HK$3,600 per month, (which the husband has already undertaken to pay) the wife’s estimate stands at HK$7,600 per month. The husband offers HK$6,000. I will allow HK$7,600. On a broad- brush basis looking at the other expenses I will allow HK$4,500 for holidays and a further HK$5,000 for the other items. I am a little worried about the husband’s undertaking to pay for the son’s psychological sessions on a needs must basis. I will allow this and will include HK$4,000 per month under this head and for that specific purpose. Thus subject to the other undertakings set out above the wife will receive HK$21,100 per month under this head.

How much should the husband now pay the wife as maintenance pending suit?

14.  In total then I will allow the wife HK$65,000 per month (i.e. HK$64,800 rounded up to HK$65,000) – HK$15,000 per month as interim maintenance for each of the two children and an additional HK$35,000 as maintenance pending suit for herself. Consequently with the Husband’s other undertakings she will therefore receive in excess of HK$110,000 per month. The husband has also undertaken to pay for other one off expenses such as the school levy for both children. This is over half of the husband’s net base income. 

15.  I appreciate that this amount is lower than that claimed by the wife overall and a little more than the husband is prepared to pay. If there has been any under payment, or indeed over payment, that may be rectified at a final ancillary relief hearing. In the meantime I am satisfied that it will afford the wife a reasonable standard of living, in keeping with that enjoyed during the course of the marriage pending a final hearing or agreement. 

Costs

16.  Given that neither party can be said to have entirely won nor to have entirely lost I will make an order nisi to be made absolute in 14 days time that there be no order as to costs.