MJP v. JWP

FCMC 9154 / 2008

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES

NUMBER 9154 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 respondent wife for maintenance pending suit for herself and interim maintenance for the three children of the family.

Background

2. The parties married on the 8 September 1997.  The wife is 44 years of age and is a textile designer by occupation.  She works three days per week and earns HK$24,000 per month.

3. The husband is also 44 years old and he is the CEO of a small limited company called DL Ltd. He holds 28% of the shares in that company.  Presently the husband receives a remuneration package in the sum of HK$100,000 per month inclusive of a salary of HK$38,000 per month plus allowances of HK$62,000 per month. Previously his salary fluctuated as he was paid on a salary and commission basis.  He says that this arrangement changed in June 2008.

4. The divorce petition was issued on the 4 August 2008, based on one-year separation with consent.

5. There are 3 children of the family, G who is 9 years of age, F who is 7 and S who is 5. The husband is seeking an order for joint custody and joint care and control of the three children so that the children live with each parent on a one-week on, one-week off basis. The wife is seeking an order for sole custody and sole care and control. Access has been problematic and several interim interim orders have been made.  The husband’s application for a defined interim access order comes back before the court on the 3 March 2009.

6. The situation is further complicated by the fact that the husband has formed a new relationship with a co-worker, with whom he now cohabits.  They also have a child, J, who will be 1 year old on the 30 March 2009.

7. I should state at the outset that I have found this a very difficult case to determine.  It is clear from the parties Form E’s that historically they have enjoyed a comfortable, but not an overly lavish ex-patriate life style.  This was based on two incomes and affordable housing in the Sai Kung area. The children attend a local ESF school and have enjoyed a number of activities including rugby and sailing. Now that the parties are living apart it is clear that the same lifestyle cannot be maintained.  The difficulty is identifying where exactly economies can be made.  Longer term it seems to me that the parties will need to make some very difficult decisions about how this life style can be sustained, if at all. In the meantime I am asked to make an order on an interim basis designed to see them through to a final hearing or preferably to a final agreement on ancillary relief.  

The law

8. Applications of this nature are set out in s.3 and 5 Matrimonial Proceedings and Property Ordinance, Cap 192.  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 not take place until later in the proceedings. Any over payment or under payment can be dealt with then.  As Ms Rattigan pointed out in her opening.

The Family Judge would have to guide himself by s.3 having regard to the reasonable requirements of the wife and the ability of the husband to pay.  (See Liu J.A in Wong Wai Chi, Susanna v Kim Miu Sup, Mark LACV 263/98)

The parties proposals

9. The husband’s position is that he can only afford to pay what he is presently paying i.e. HK$33,750 per month, which he pays by two instalments – HK$24,000 on the 1^st day of each month and HK$9,750 on the 10^th day of each month.  In addition he pays for the school fees in the sum of HK$17,430 per month.  Thus at present he is paying approximately HK$51,180 per month for or on behalf of the wife and the three children.  In addition the wife earns HK$24,000 per month.  Thus she has an available income of approximately HK$75,000 per month in total.  The wife puts her outgoings in the region of HK$120,000 per month.

10. The wife’s case is that historically the husband was able to contribute the whole of his salary towards the family expenditure.  She appreciates that this is will not now be possible given that there will be two households to maintain going forward.  Nevertheless she believes that the husband should be able to contribute more than he is doing at present. She questions the change in his remuneration structure and has identified the amount of money paid into the parties’ joint account from September 2006 – October 2008.  She complains that the husband is not taking financial responsibility for his family and that she has insufficient funds at her disposal to meet certain basic expenditure.

11. The husband for his part says in reply that he is paying the wife approximately half of his available income and that he cannot afford to pay her more. 

The Issues

12. In broad terms there is only one issue to be determined namely how much maintenance should the husband pay to the wife for herself and the three children of the family on an interim basis?

Discussion

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

14. On the evidence before me and on a broad-brush basis it seems clear that both parties will need to make sensible economic adjustments if they are to manage on the funds presently available to them. It also seems to me self evident that the children and proper provision for them must come first.

15. Turning first to the husband’s expenses.  In total the husband says that he has expenses of approximately HK$140,000 per month.  This includes expenses for the children of c. HK$62,500 per month.  Putting these to one side for a minute, he puts his General Expenses at HK$16,750 per month and his Personal Expenses at an additional HK$60,000 per month.  Given that he is living with his partner Ms MP, and she is working, I can see no reason why she should not be contributing towards half of the General Expenses.  It is not clear the extent to which she may be doing so already save that the husband is paying for the whole of the rent (which is very modest) and the whole of the domestic helpers salary.  On a broad brush basis I will allow the husband HK$12,000 per month for his General Expenses, so taking into account a contribution that should quite properly be made by Ms MP to half of the rental and the domestic helpers salary.  In so far as his Personal Expenses are concerned I note that the husband is seeking HK$7,600 per month for meals out of the home. I will allow him HK$1,000 per month.  I will also reduce the allowance for entertainment and presents to HK$1,000 per month.  I also note that he is paying tax by instalments in the sum of HK$12,000 per month. This covers tax that had not been paid previously. In addition he asks that provision be made for a tax saving of HK$17,000 per month to cover next year’s anticipated tax liability.  Although I accept entirely that he will of course need to pay tax next year, I don’t think it is reasonable on an interim basis for him to make allowance for both. I will allow HK$12,000 as claimed, to pay for the tax that is presently outstanding.  If need be he will need to borrow or pay his tax by instalments next year, as he has done in the past.  I also accept that he has certain minimum payments to make in relation to his credit cards in the sum of approximately HK$11,500 per month.  I will not allow any provision for holidays for the time being.  The husband also refers to expenses for J in the sum of HK$2,500 per month.  Again I will expect Ms MP to contribute towards half of those expenses. I will allow all other expenses. Thus in total I accept that the husband has Personal Expenses in the region of approximately HK$32,000 per month.  In total then his expenses, without making any provision for the children, amount to approximately HK$44,000 per month (i.e. HK$12,000 + HK$32,000). 

16. In so far as the wife’s expenses are concerned I accept that most of the figures provided appear to be genuine.  But in order to live on what is available economies must and should be made.  Having looked at the figures under the heading General Expenses, it seems to me that some cuts can be made to the utility bills (I accept for example that the electricity charges are very high notwithstanding the fact that there are two bills every two months. One bill for each floor in the duplex). The food bill and car expenses also seem to be on the high side.  I will allow HK$5,000 per month for utilities, HK$10,000 per month for food and HK$7,500 per month for the car expenses.  I will also allow HK$5,850 for the domestic helper (i.e. salary and Government levy).  I will not allow the kennel or laundry expenses.  Thus in round terms the wife’s general expenses for herself and the children, amount to approximately HK$46,350 per month.  In so far as her Personal Expenses are concerned I will allow HK$600 for meals out of the home (as she works 3 days per week), HK$500 for personal grooming and HK$500 for medical/dental expenses.  As with the husband I will make no allowance for holidays for the time being.  In addition I accept that the wife also has certain minimal payments to make to credit card companies in the sum of c. HK$4,100 per month.  Therefore I will allow approximately HK$6,000 for the wife’s Personal Expenses.  Thus in total the wife’s General and Personal expenses amount to HK$52,350 per month.  (HK$46,350 + HK$6,000).

17. At present the wife earns HK$24,000 per month.  Therefore she needs an additional HK$28,350 to cover her General and Personal expenses.

18. In addition there are certain essential items that need to be paid for and on behalf of the children namely:

   School fees – HK$17,430 per month

   School bus fees – HK$2,550 per month

   Medical/dental – HK$1,500 per month

19. In addition I will allow HK$9,000 per month to cover all other costs pertaining to the children – i.e. HK$3,000 per month each, including clothes, school uniform, school books and stationery etc.  Thus in round figures it seems to me that the wife needs approximately an additional HK$13,000 to cover the basic expenditure for the children, plus the school fees.  Thus in total the wife needs an additional c. HK$41,350 per month plus the school fees or HK$58,780 in total.  It seems to me that the husband should be able to pay this amount on an interim basis.  Any adjustments can be made later.  The husband has indicated that he is happy to pay the school fees.  I will hold him to that undertaking.  In addition I will order that the husband pay the wife HK$41,500 per month on an interim basis – HK$26,500 per month for the wife and HK$5,000 per month for each of the three children.  The husband presently pays the wife by two instalments per week.  Going forward he should continue to pay HK$24,000 on the first of each month commencing on the 1 March 2009 and HK$17,500 on the 10^th of each month. In so far as costs are concerned, given that the wife has had no alternative but to seek the assistance of the court I will make an order that the husband do pay the wife the costs of her application on a party and party basis to be taxed if not agreed. I will also give liberty to apply generally. I would also seriously urge the parties to try to resolve their outstanding issues by mediation/negotiation. They have attempted mediation in the past. I would urge them to do so again.