L v. T

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES

SUIT NO. 2250 OF 2000

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J U D G M E N T

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1. This is the Petitioner Wife's application for ancillary relief against the Respondent Husband, specifically for a substantive lump sum and a share in his landed properties mainly of agricultural and farm lands in the New Territories.

2. The facts of the case are unusual.

3. The Husband's grandfather, TCF, was a wealthy man and one of the biggest land owners in the New Territories. He had 3 sons namely TPK, TKW and TKC, the Husband's natural father. In 1931 TCF distributed part of his assets to his 3 sons. However as TKW had already died at that time, his share was therefore held by the TKW Tso. As TKW was without any issue, under the direction of TCF, the Husband who was then only a small child of 2 years of age, was adopted by TKW's widow WS in order that the male lineage of TKW could be assured. The Husband therefore became the sole heir to the TKW Tso but while he was a minor, his natural father TKC was appointed the manager of the Tso until he died in 1953.

4. In the late 1940s or early 1950s, when the grandfather TCF was in his 90s and not in good health, he was keen that the male line of the TKW Tso descendants should be assured before his death by arranging with WS for the parties to marry each other. The wedding took place on 17th January 1951 in accordance with the Chinese customary rites and ceremonies arranged by the heads of the respective families some 2 years before, when the Husband was 19 and the Wife only 15, whose consents to the marriage were not sought, as most customary marriages were in those days.

5. About 1 year prior to the marriage, the Husband formed a relationship with a girl by the name of SF and started living with her. It is common ground that the Husband and Wife had only met on 3 occasions before the wedding. On the 1st 2 occasions the Husband had tea with the Wife's father and barely spoke to her. On the 3rd occasion the Husband brought along SF to meet the Wife in a hotel and disclosed to her of their relationship. Afterwards the Wife told her father of SF, but the marriage nevertheless went ahead.

6. After the marriage the parties lived with WS, but the Husband was seldom at home, staying most of the time instead with SF. 3 months later he brought SF to meet WS and later took her as his concubine when they would live together with TCF's widow in Ha Chuen, while the Wife was to continue living with WS. Despite this 2 children were born of the parties' marriage, a son in 1952 and a daughter in 1954 to whom the Husband had never assumed any parental role. The Wife and the children were all along being supported by WS with the income from TKW Tso.

7. After the death of TCF in 1952, the remainder of his estate took the form of the "Six Entities" which distributed income and capital to his male descendants including the TKW Tso. One year later the Husband's father TKC also died, leaving his estate to his 4 male sons including the Husband. In 1955 the Husband separated from SF and commenced living with Madam Y by whom he has 4 children.

8. Upon the death of TKC, WS was appointed the manager of TKW Tso and for the first few years she continued to distribute the Tso's income to the Husband until about 1955 when she decided to retain the whole of the income generated by the Tso as well as its share of the income generated by the Six Entities, which upset the Husband and caused a rift between them, which he claimed was the result of the Wife having spoken against him and SF in the past.

9. Their relationship deteriorated further when WS allowed the Wife to be appointed an additional manager of the Tso in 1968, with the conflict coming to head in 1977 when the parties' son TTC was also appointed a manager. In 1978 the Husband instituted legal proceedings in the High Court against WS, the Wife and their son TTC for a declaration that he was the sole legal successor to the Tso and that their respective appointments as managers were null and void. The case was eventually settled in 1983 with 40% of the Tso's assets given to the Husband and the remaining 60% to the said TTC. It was also part of the settlement that both WS and the Wife were to cease being the Tso's managers. They were since maintained by TTC. WS died later in 1996.

10. In January 2000 the Wife with the assistance of legal aid applied to this Court for a declaration that her marriage to the Husband on 17th January 1951 was a subsisting customary or validated modern marriage under the provisions of the Marriage Reform Ordinance, Cap 178. On 6th March 2000 in the absence of the Husband who was served by substituted service care of his elder brother's address, the Wife was granted the declaration accordingly.

11. On 14th March 2000 the Wife instituted the present proceedings for divorce against the Husband on the ground of his desertion since 1956, and for general ancillary relief and costs.

12. On 20th March 2000 the Wife on ex-parte basis applied and obtained an injunction restraining the Husband from disposing any of his assets on the basis that she feared that he would dispose of his assets once he found out about her claims for ancillary relief against him in her petition.

13. At the return inter-partes hearing of the Wife's application, the Husband denied that he had any intention to dispose of his assets which include more than $30 millions of cash in the bank, plus stocks and shares and interests in numerous lots of lands in the New Territories, and that he was willing to give an undertaking not to dispose of his assets pending the determination of the proceedings, which undertaking was accepted by the Court and the injunction was therefore discharged.

14. The parties' divorce dispute was subsequently resolved by the Wife's amending her petition to one based on separation since 1956 with the decree nisi of divorce granted on 12th September 2000. The question of ancillary relief was adjourned to Chambers for argument, with the usual direction for the filing of affidavit of means by the parties. At the trial both parties gave oral evidence and were cross-examined extensively.

The Wife's Case

15. The Wife says that she saw very little of the Husband after their marriage as he rarely returned home and later in 1956 deserted her and the children altogether. She says he has never fulfilled his duties either as a husband or a father throughout their marriage, financially or otherwise. On the other hand, she has always fulfilled her duties as a wife, a daughter-in-law to both his father and WS, and as a mother to their 2 children who were practically brought up all by herself without any help from the Husband who would indulge in gambling and womanizing, and when he lost all his money, he then started the High Court action for the Tso's assets despite the fact that he had already succeeded to his father's estate. She and the children were all along supported by WS with income of the TKW Tso until 1983 when her entitlement ceased with the settlement of the said High Court case, as a result she had considered applying to court for maintenance from the Husband, after he had refused her requests for maintenance and tried to avoid her, but later decided not to in deference to WS's wishes who was not in favour of any litigation between the parties.

16. From thence on the Wife says she has been maintained by her children in particularly her son with the income from his business and the sale proceeds of his share of the Tso's assets. Over the years she says the children have been very generous to her to the extent that she was at one time able to spend up to $30,000 to $50,000 per month playing mahjong or gambling on the Star Cruises and to take various pleasure trips to Southeast Asia and China.

17. Unfortunately in about 1999 she was told by her son that he could no longer shoulder the burden of maintaining her due to his business failures and that the source of income of the Tso has dried up since it no longer holds any more land. As she is now old and not in good health, and as she is without any income or assets of significant value other than an old and crummy village house in Yuen Long, she believes that the Husband should start facing up to his responsibility by providing her a lump sum to meet her future living expenses and to enable her to purchase a decent flat in Shatin so that she can live near her daughter, as well as a share in his landed properties as recognition of her substantial contributions to their lengthly marriage.

The Husband's Case

18. The Husband says that he did tell the Wife at their meeting prior to the marriage that he would continue to cohabit with his girlfriend SF after their marriage, and that she must either accept this relationship or else he would call off their wedding, to which the Wife agreed and their marriage therefore went ahead. However later when he was going to marry SF as a concubine, the Wife did not keep her promise and started to speak ill against SF, as a result he was upset and decided to stay away from the Wife and their matrimonial home.

19. In or about 1954 the Husband says he and the Wife formed the opinion that their marriage was at an end and agreed to live separate from each other. He agrees that he had never during the marriage paid any maintenance for the Wife or their children as they were all along being maintained by the income of TKW Tso.

20. Despite being made a successor of the TKW Tso, the Husband says that except for about 3 years after his father's death, the income of the Tso was never distributed to him and he therefore instituted the High Court action in 1978. The settlement reached between the parties in 1983 resulted in the son becoming the sole successor of the Tso and the beneficiary of 60% of the Tso's properties which was then worth more than $7.6 million. He believes that the Wife has continued as the manager of the Tso with the son after the death of WS and has been able to enjoy the income of the Tso up to today, as it is suspected that the Tso still has other landed properties, and that the sale proceeds of some of its properties or its income may have been invested in other forms by the Tso which both the Wife and son are able to enjoy, she is therefore not in need of any financial support from him.

The Law

21. In deciding on the Wife's application, I am required by S. 7 of the Matrimonial Proceedings and Property Ordinance, Cap 192 to have regard to the conduct of the parties and all the circumstances of the case including the following matters :-

(a) the income, earning capacity, property and other financial resources which each of the parties to the marriage has or is likely to have in the foreseeable future;

(b) the financial needs, obligations and responsibilities which each of the parties to the marriage has or is likely to have in the foreseeable future;

(c) the standard of living enjoyed by the family before the breakdown of the marriage;

(d) the age of each party to the marriage and the duration of the marriage;

(e) any physical or mental disability of either of the parties to the marriage;

(f) the contributions made by each of the parties to the welfare of the family, including any contribution made by looking after the home or caring for the family;

(g) in the case of proceedings for divorce or nullity of marriage, the value to either of the parties to the marriage of any benefit (for example, a pension) which, by reason of the dissolution or annulment of the marriage, that party will lose the chance of acquiring.

22. Before considering the various factors listed above, it would be appropriate for me to first deal with the several arguments raised by the Husband in Mr Pilbrow's submission as part of the circumstances which the Court is required to have regard as follows.

1. Whether there was an agreement between the parties to live separate and apart from each other even before the marriage took place

23. The Husband's evidence that there was an agreement reached between the parties on their 3rd meeting in a hotel shortly before the marriage is contained in his 3rd Supplementary Affirmation at page A92 as follows :-

"3. I had my own girlfriend, namely Madam SF, before the Marriage and we cohabited together before the Marriage. When pressed by my grandfather to marry the Petitioner, I met the Petitioner at a hotel in Kowloon when I introduced Madam SF to the Petitioner and told the Petitioner of my relationship with Madam SF. I told the Petitioner that I would continue cohabiting with Madam SF after the Marriage. I told the Petitioner that she would have to accept my relationship with Madam SF and the proposed arrangement otherwise I would call off the Marriage. The Petitioner agreed to accept the arrangement. I married Madam SF as a concubine in or about 1952 before the death of my grandfather which marriage was celebrated in accordance with the Chinese customary practice."

24. The Husband further explained in his oral evidence that he believed that a compromise could be achieved in his proposal whereby the Wife could bear the children to continue the lineage of the TKW Tso, which could then support them and he would continue his relationship with SF to secure the lineage of his natural family with support from the TKC estate.

25. The Wife denies the Husband's allegation and her version of the event in the hotel is in her 4th Affirmation (p. A119) as follows :-

"3. After I was betrothed to the Respondent and after our wedding date had been selected and announced the Respondent requested to take me out. With my father's permission I met the Respondent on three occasions before our wedding. During our third meeting the Respondent took me to a room in a hotel where a woman joined us. The Respondent did not tell me her name but subsequently I learnt that her name was SF. In the room the Respondent informed me that SF was his girlfriend. I was naturally very upset to hear this especially when our contract of marriage had been made and our wedding announced. I started to cry and asked the Respondent why he had not disclosed his relationship with SF much earlier. The Respondent responded by saying that there was still time to cancel the wedding although he did not say how this could be done. Other than asking the Respondent why he had not disclosed his relationship with SF before our betrothal and before the engagement money was paid and accepted I did not say anything else before leaving the hotel room. Contrary to the assertions made in the Respondent's 3rd Supplemental Affirmation, the Respondent did not tell me he was cohabiting with Madam SF nor did he say he would continue cohabiting with her and would call off the marriage unless I agreed to his continual relationship and alleged cohabitation. Since the contract of marriage had already been entered into between the heads of our respective families there was little I could do or say with regard to the marriage. I believe the Respondent also had little say as to our marriage. Had the Respondent been in a position to call off the marriage as he now claims he could have done so instead of going through with the marriage.

4. After I left the Respondent and SF I returned home and informed my Father of what the Respondent had told me. I do not know what happened subsequently except that my parents told me the wedding with the Respondent would go ahead as planned and I married the Respondent in a lavish ceremony ......"

26. I have no doubt of what the Husband had in mind when he brought SF to meet the Wife on that night. It must have been to tell her of his relationship with SF and to try to get her to either call off the marriage or to accept their relationship. I however do not believe that either of them had the ability or authority to do anything about their forthcoming marriage. It was a typical customary marriage which was decided by the Husband's grandfather and arranged by the respective family heads and elders. The consent or approval of either party for the marriage was never obtained nor required. The fact that the parties had met only twice before and had barely spoken directly to each other prior to that meeting speaks for itself.

27. I accept that the Husband was obviously against the marriage and that he wanted instead to continue his relationship with SF. I believe his meeting with the Wife was to try to put her off with the disclosure of his relationship with SF in the hope that her father might decide to call off the wedding. The Wife was naturally upset but at the age of 15, she was clearly not in any position to influence her family and as a result the marriage nevertheless went ahead. But was there any agreement between the parties to separate after the marriage ?

28. For the same reasons aforesaid I do not believe that the Wife would have on her part agreed to the Husband's suggestion. Furthermore, it does not make any sense for a person to agree to live apart from his or her future spouse even before their marriage. It is one thing for the Wife to go through the marriage reluctantly in view of the Husband's disclosed relationship with SF about which she could not do anything, it is however absurd to say that she would have agreed to an arrangement after the marriage that would condemn her to a life synonymous to widowhood. Her actions after the marriage in fact does not appear to support that there was any such agreement.

29. It is the Husband's evidence that shortly after the marriage he began to stay away from the matrimonial home to cohabit with SF, but the Wife with WS undertook a campaign of harassment to try to get him to go home with her. It is also his evidence that the Wife refused to recognize SF when he brought her to meet WS, and that thereafter she tried to speak ill against SF in front of WS. Not only do these evidence not support the existence of such an agreement, they in fact go to dispute it. I believe that the whole notion of living apart from the Wife after their marriage existed only in the Husband's mind at that time as it was clearly his intention to do so, but it was never part of the Wife's agreement. The fact that the Husband described the Wife as "the deserted wife" in his writ issued in the 1977 High Court proceedings goes to further support her contention that there was no agreement to separate and that she was in fact deserted by him.

2. What was the duration of the marriage and its effect upon the Wife's claims

30. Counsel for the Husband calls this marriage a mistake, that it never existed in the true concept of the word, and that it was a freak of the time of arranged marriages. He argues that neither party loved the other, that the Husband never intended to live with the Wife who was aware of this even prior to the marriage, and that the issue of this union came about, not out of love, but as a result of the wishes of the parties forebears that their lineage might continue. It is said that the Husband has never accepted the 2 children nor wished to be a father to them, with the result in bitterness, mistrust and acrimony between the parties the blame for which must lie with the traditions of the times and the parents and forebears who imposed them upon this couple.

31. Relying on authorities such as Graves v. Graves [1974] Fam Law p.124, the Husband argues that the shorter the marriage, the less the Court feels that a wife's contribution to the marriage qua "wife", as opposed to financial contribution, entitles her to a percentage of the husband's wealth.

32. The Wife does not dispute that after the wedding in 1951, the Husband only lived with her for a short time and that in 1956 he deserted her and the children altogether. She however argues that the fact that they lived separately thereafter is not indicative of the length or existence of their marriage because the Court should take into account the time and society which they lived in, as in a modern society where parties marry out of their own free will the fact of the separation may be, and usually is, an indication of the end of their marriage, whereas in a traditional society like the one the parties lived in, where arranged marriage and concubinage existed, the significance of such separation is greatly reduced if not nil. It is therefore submitted that the Court should treat this marriage as a long one which subsisted almost 50 year from 17th January 1951 to 30th November 2000 when the decree nisi was granted.

33. There is no question of any issue over the factual finding by the Court of the parties living apart from each other since 1956 upon which the decree nisi of divorce was granted. The real issue is, as submitted by Counsel for the Wife, whether their separation in 1956 represents the end of the marriage.

34. There is no question that the duration of the marriage is a relevant, and sometimes important, factor in the exercise of the Court's discretion, as required by section 7(1)(d) of the Matrimonial Proceedings and Property Ordinance. Where it is alleged that the duration of the marriage is particularly relevant, as in the present case, it is usually asserted as an argument to reduce the amount to be awarded, whether by way of financial provision or property adjustment, that the marriage is of short duration. In the case of Graves v. Graves where the husband appealed against the magistrates' decision to order him to pay maintenance for his wife after a short marriage, Ormrod L.J. said "that while the magistrates were right in coming to the conclusion that the husband had impliedly agreed to provide maintenance, they were clearly wrong in their assessment of the quantum. In that respect, there was a widening difference between the practice in the family jurisdiction and the magistrates' jurisdiction. In the present case the marriage was short-lived, lasting from June, 1971, to June 1972; the parties were young and had no children; the husband was a doctor and the wife a state enrolled nurse. It was clear from the evidence that the wife had applied for a full-time nursing job and S.R.N.s were able to earn a reasonable amount of money. Unless there were children to be supported or the wife had suffered some handicap in terms of financial difficulties as a result of the break-up of the marriage, only a nominal sum by way of maintenance could be ordered". The appeal was allowed and the maintenance order was substituted by a nominal order.

35. In other cases such as Baker (formerly Sillence) v. Sillence [1975] 5 Fam Law 47, Ca and Warder v. Warder [1878] 122 Sol Jo 713, where the wife has left the matrimonial home and the husband has remained in it, the shortness of the marriage has been a factor in the Court's decision to award the wife a smaller proportion of the equity than she might otherwise have received.

36. In H v. H [1981] 2 FLR 392, Balcombe J said :-

"In my judgment, where one has, as here, a very short marriage between two young persons, neither of whom has been adversely affected financially by the consequences of the marriage and each of whom is fully capable of earning his or her own living, the approach which the Court should normally adopt is to allow for a short period of periodical payments to allow the party who is in the weaker financial position, (usually, as here, the Wife) to adjust herself to the situation, and thereafter to achieve the wholly desirable result of a clean break, if necessary facilitated by a small lump sum payment".

37. However, in Cumbers v. Cumbers [1975] 1 ALL ER 1, the Court felt that capital provision was appropriate on the basis of the part played by the wife in a marriage which had lasted only eighteen months. The matrimonial home, which the husband had bought on mortgage, had eventually been sold for a net sum of ￡1,600 and the husband had bought another house for himself. He was ordered to pay ￡500 to the wife which was to be secured on his house and paid by instalments with interest of 10%.

38. Nevertheless, there is no hard and fast rule : a long marriage has obvious implications in relation to the criteria listed in section 7 of the Ordinance; in other cases the shortness of the marriage has also been an important factor in the exercise of the Court's discretion. This is illustrated by S v. S [1977] 1 ALL ER 56, CA where there had been a very short marriage between parties of mature years, both of whom had been preciously married. The approach adopted was that the Court should assess the needs of the wife, then check the resulting figure against the resources of the husband, then consider the ratio of the one to the other and how the parties would stand in relation to one another, and relate that to all the circumstances of the case.

39. I agree with Counsel for the Wife that in determining the duration of this marriage the Court should take into account the time and society which the parties lived in which led to their separate living arrangement. One standout feature of this marriage is that it was a customary one. Prior to 1971 customary marriages together with modern marriages were peculiarly "Chinese" marriage in existence with the "Western" system or Christian in nature and origin. As from 7th October 1971 the Chinese system was abolished by the Marriage Reform Ordinance with the result that since then only marriage under the Marriage Ordinance has been recognised.

40. Under the Marriage Reform Ordinance, customary marriage is simply defined as one which was celebrated in Hong Kong before the appointed day in accordance with Chinese law and custom, and according to Chu Tung Tsu, a well respected scholar on Qing law and customs, who described customary marriage in his book of "Law and Society in Traditional China", reprinted edition, 1980 as follows :-

"The ceremony of "marriage is a bond of affection between two surnames. It serves the ancestral temple on the one hand and continues the family line on the other", says the Hun-i (The meaning of marriage), a chapter in the Li Chi. From this ancient and most authoritative definition, it can be seen that it was the family that was the greatest concern, not the individual. Perpetuation of the family and ancestor worship were closely linked, and the latter seems to be the more decisive. It may be said that the family had to be maintained so that the ancestors could be sacrificed to. Ancestor worship was then the first and the last purpose of marriage. It is therefore not difficult to understand why a bachelor or a married man without a son was considered unfilial. Says Mencius, "There are three unfilial acts, the most serious of which is to be without descendants". Without a descendant, the ancestors would become unworshipped ghosts. Many ancient peoples believed that ghosts must have sacrifices".

41. Unlike a marriage contracted under the Marriage Ordinance with which we are familiar today, customary marriage was a union between two families as opposed to a union of two individuals, and the purpose of such a union was, according to Vermier Chiu in her "Marriage Laws and Customs of China", Chinese University Press, Hong Kong, 1966, not the pursuit of individual happiness, rather it was the procreation of male descendants. The consent of the prospective groom and bride to their union was therefore not necessary, as the contract of marriage was made between the heads of the two families, with the head of the groom's family selecting a prospective bride, engaged a go-between to negotiate a betrothal contact, and the heads of the families concluded the nuptial agreement, as is evidenced in this case.

42. By the nature of customary marriage, the separation of the parties, or in the Wife's words, their separate living arrangement in 1956, argued by the Wife, does not necessarily mean the end of the marriage as we normally understand from those marriages of today, as the separation was the direct result of the Husband's intention to take a concubine, which he was then permitted to do and which was in fact part of the institution of customary marriage.

43. Vermier Chiu described the taking of concubines as follows :-

"The origin of concubinage may be traced to the time when feudalism flourished in China. Under the feudal system a king was entitled to marry one wife and eight concubines, a feudal lord was given the right to wed one wife and six concubines, a "ta fu" (an official from the first rank to the fifth rank) could have one wife and two concubines, a "shih" (an official from the sixth rank to the ninth or lowest rank) could take one wife and one concubine and a commoner could marry one wife only - no concubine for a commoner ...... Originally, therefore, the taking of concubines was a privilege belonging exclusively to the ruling class and commoners were not given such special rights. But after feudalism had fallen into disintegration, gradually it became quite a common occurrence for the rich to take as may concubines as they could afford until in the course of time a man's wealth and social prestige were measured by the number of concubines and slaves he possessed".

44. The taking of SF as concubine by the Husband was formally accepted by WS and, reluctantly or not, by the Wife as well. The consequential separate arrangement with the Husband living with SF in one household and the Wife with WS and the children in another cannot therefore be said to have brought the marriage to an end.

45. When should one then consider a customary marriage had come to an end ? It is necessary to first consider the position of a wife in such marriage. Professor Athena Liu in her "Family Law for the Hong Kong SAR", Hong Kong University Press 1999 said as follows :-

"Although both men and women in marriage were to serve the family, according to Confucius' five classifications of human relationships, like a minister to the sovereign and like a son to the father, a wife was to be subordinated to her husband. Such subordination was reflected in the Chinese saying that :

Married to a chicken the woman follows the chicken; married to a dog, the woman follows the dog.

A wife, thus, was destined to obey the men in her family. This was the so-called san tsung or three obediences - before marriage, a woman obeyed her father; after marriage, her husband; widowed, her son".

46. Chu Tung Tsu further explained in his book the position of a wife vis-à-vis her husband :

"In the family the division of labor between the sexes also rested on man's recognised superiority to woman. It had long been orthodox for man to rule outside the household, woman within it. Care of the children, cooking, washing, sewing, cleaning, and directing the maid servants were all inside tasks - in their final analysis services for the Husband. Such expression, "to stand by with towels and combs (shih chin chieh 侍箕帚), and "to hold a broom" (chi chi chou 侍巾櫛) were commonly used by the wife to underline her humble position vis-à-vis her Husband. The story of Huai-ying (懷嬴) who held a basin for Prince Chung-erh (重耳) reveals that even in a princely family, humble labors of this kind were performed by the Wife and not by domestics.

The character fu (婦), "woman", is a combination of nu, "female" and Chou, "broom". It has the meaning "to serve" and "to submit".

47. It should therefore be seen in the context of a wife's subjugation to her husband and the standard of behaviour which could be expected of her when one is to consider the duration of a customary marriage and its end or dissolution.

48. Although customary marriages could be dissolved under certain circumstances according to Qing law, and that after 1971 the Marriage Reform Ordinance has made provision for the dissolution of such marriages by the mutual consent of the parties, neither the Husband nor the Wife had until these proceedings taken any formal or legal steps to put an end to their marital relationship. In fact it is common ground that the Wife was continuously supported by the Husband's adopted mother WS with income of TKW Tso of which he was the sole successor until the 1983 High Court settlement, and that it is the Wife's evidence, which is never disputed by the Husband, that she was all along known and treated by both families as well as the clan members as his principal wife despite their physical separation during which she had dutifully served WS and raised the children in the family. Despite the lengthly separate arrangement, there is no evidence that she had ever thought of leaving the family or starting a relationship with another man. The evidence is that she had always regarded herself as his wife. It cannot be denied that the parties had actually lived together for only a short period, but the duration of their marriage must be looked at in the context of the unusual background and circumstances of their marriage. It was the Husband who deserted the Wife and the children in 1956, it would not be right or fair that he be allowed to use this as an argument to reduce the Wife's claims.

2. Whether there was any agreement reached between the parties in 1983 under the settlement of their High Court proceedings which was in full and final settlement of all claims arising out of their relationship / marriage

49. It is necessary to go more into the background events which led to the proceedings. It is the Husband's evidence that he was upset when WS decided in 1955 to retain the whole of the income generated by the TKW Tso and its entitlement to its percentage of the income generated by the Six Entities without giving him his share, but that he was too poor to take legal proceedings about it. In 1968 however there was renewed friction between the parties when the Wife was appointed as an additional manager of the Tso which the Husband looked on as a conspiracy to deplete the assets of the Tso, as he saw no reason other than pressure from the Wife for WS to appoint her. He said he complained to the District Officer but to no avail. Again he did not take out legal proceedings because he did not have the money.

50. The next event which caused further disruption between the parties occurred in 1977 when the son TTC was appointed as an additional manager of the Tso. He was then 25 years old and had recently completed his tertiary education in Canada, got married and returned to Hong Kong. This was the impetus for the Husband to launch the High Court Action No. 2125 of 1978 against the 3 appointed managers namely WS, the Wife, TTC and the Attorney General on behalf of the District Officer as Defendants.

51. The proceedings lasted 5 years and in 1983, during the trial while the Husband was giving evidence when the parties' legal representations proposed a compromise with 40% of the Tso's assets given to the Husband and 60% to TTC which, according to the Husband, was intended to settle once and for all the dispute that had continued since 1955 when WS unilaterally deprived him of his entitlement to a share of the income of the TKW Tso.

52. It is submitted by Mr Pilbrow on behalf of the Husband, that there is a consistent thread in his evidence in this regard which goes back to the meeting between the parties and SF in the hotel prior to their marriage in 1951, in that the agreement which he proposed was that the Wife and any children she bore to maintain the lineage of TKW, should be supported by the TKW Tso within the percentage of WS's entitlement.

53. Recognising that only male descendants are entitled to be members of the Tso and as only lawful widows are entitled to income from the Tso, the Husband's argument is that the settlement represented a logical compromise in that the TKW Tso and the assets distributed to and vested in TKC by TCF in 1931 were originally equal estates, and after the death of TCF, the Tso would equally be entitled to a percentage of the balance of his estate through the Six Entities. On the TKW side, the Husband was the sole beneficiary, subject to the rights of WS to income. TTC was a member of the TKW Tso on birth but he would not be entitled until his father's death. On the TKC side, the Husband and his 3 brothers were entitled, and were their male descendants upon the death of their respective fathers. In theory, therefore, the Husband was entitled to 50% of the income of the TKW Tso and 33 1/3 of the state of TKC, as one brother having died in 1975. As TKC's widow was then still alive and therefore entitled to support, and assuming that the estate was still to be divided 4 ways, by this compromise the Husband gave up 10% of the income during WS's lifetime as well as his legal entitlement to 60% of the capital of the TKW Tso. Of the 125% of the whole, the Husband kept just over 50% whereas WS / TTC retained just under 50%. TTC, being the only male descendants therefore assumed complete control of TKW Tso and the burden of looking after the dependants of the Tso.

54. By appointing TTC as the sole beneficiary of the Tso, it is argued by the Husband, this would have the effect of removing any obstacle created by any objection from any other person to the District Officer to prevent the sale of the assets, and by retaining the Wife as an additional manager, this meant that she continued to have effective influence as her signature would be needed upon any transfer of land. With his approximate 50% share, the Husband would be able to maintain the lineage of his natural father TKC and his 2 sons by Madam Y would inherit in due course.

55. The most compelling evidence in support of his argument, according to the Husband, is that the legal representatives in the High Court proceedings concluded that, in order to ensure no further potential arguments may arise in the generations to come, it was necessary to join as parties the issue of TTC and the Husband, and the fact that the Husband and his descendants will no longer have any claim against the TKW Tso is very clearly spelt out in the Order of Mr Justice Liu of 8th July 1983 which embodied the terms of settlement and which were intended by the parties and their legal representations, once and for all, to finalize the respective claims to inheritance and support by the descendants and their dependants of the 2 distinct lineages of TKW and TKC.

56. The contemporaneous valuation of properties owned by the TKW Tso, according to the Husband, indicates that the value of the properties retained in the Tso after the settlement was $4,681,200 and that retained by the Husband was $3,119,500 which were considerable sums of money at that time. If what the Wife said about her spending is true, argued by the Husband, that she has been able to spend up to $30,000 to $50,000 per month on mahjong games according to her 3rd Affirmation, and that her monthly support rose to $55,000 to $60,000 in 1994, increasing to $90,000 in 1996, the total sum contributed to her by her son and from the Tso between 1982 and 1999 would have exceeded $5 million. What son, even profligate, the Husband asked, would have proffered such payments against the background of his family business, unless he felt a stronger than moral obligation to pay over such monies, especially when he must have been aware that a very high percentage of those monies was being thrown away gambling, which goes to support his contention that the Wife was and still continues to be one of the appointed managers of the TKW Tso.

57. After the settlement in 1983, it is the Husband's evidence that he remained extremely tight financially as his legal fees had been very substantial. It was in fact only since 1988 / 90 that he started to accrue the present surplus bank savings and shareholdings that he has today, mainly from the compensation paid by the Government for the resumption of his lands. Despite his considerable liquid assets, he says he has remained a person who is not extravagant in proportion to his means, as evidenced by the fact that he had continued to live with Madam Y and his son in public housing and later in a modest flat purchased under the Home Ownership Scheme after giving up his public housing. On the other hand, he argues, that the TKW side of the family has thrown prudence to the winds by selling most of the Tso's assets to pay off TTC's debts or to cater for the Wife's indulgence at the gambling tables. It would not be fair, the Husband argues, that after the 1983 Court order which was intended to settle all the parties' claims against each other, and through the immature spendings of the male descendants of TKW Tso, for the Wife to now claim that all the monies of the Tso have been expended and to make claim to a proportion of the wealth of the descendants of TKC through the present proceedings.

58. The Wife insists that she was not involved in the negotiations for the 1983 settlement which were mainly conducted between the lawyers for the Husband and son TTC and had nothing to do with her, hence it could not be any settlement of her claims for financial provisions against the Husband.

59. The Wife's evidence as to the events preceded the High Court proceedings is somewhat different to the Husband's. She says that upon his father's death in 1953, the Husband performed certain ceremony at his father's funeral which could only be performed by the eldest son of the deceased, and as he had ceased to be so after he was adopted as the successor of the TKW Tso, his performance was therefore contrary to the Chinese law and customs. Despite this the Husband went on to inherit his father's estate and began to lead a luxurious life including womanizing and gambling but never paid any maintenance for her or their children.

60. After the Husband's adoptive mother WS became the manager of the TKW Tso, she supported the Wife and the children with the income of the Tso, and the Wife would help her to collect the Tso's rental income. By the 1960s the Wife says that the Husband had lost most of the land which he had inherited from his father including some pawnshops and buildings from gambling. It was then when he started to badger WS to appoint him an additional manager of the TKW Tso. WS however refused as she did not trust him and was concerned that he might gamble away the Tso's assets. Instead, the Wife says, WS appointed her as an additional manager which upset the Husband.

61. In about 1965 the Husband induced WS and the Wife to give recognition to his 2 sons by Madam Y so that they would be registered as members of the T Clan at the T's ancestral hall by promising to make financial provisions for both families and to divide all his assets into 4 equal shares with 2 shares to be given to TTC upon his death. However after the ceremony and registration for his 2 sons, the Wife says, the Husband did not keep his promise and was hardly ever seen.

62. The parties' relationship deteriorated further in 1972 when their son wanted to continue his studies in Canada but the Husband refused to make any financial contribution towards his school fees or living expenses in Canada. As a result WS decided to raise funds by selling some lands of the TKW Tso. The Husband however objected to the sale and it was only after the District Land Officer had approved the sale that the son was able to get the necessary finance to go to Canada. Later on when he married, the Husband refused to attend his wedding or pay for the same despite persuasion by WS.

63. The dispute between the 2 families finally came to head in 1977 when WS, in order to stop the Husband from badgering her to appoint him as an additional manager, decided to seek assistance and guidance from the elders of the T clan which led to a meeting attended by various elders including TPK, the eldest brother of the Husband's deceased father and the most authoritative and influential figure of the clan. At the meeting the elders confirmed that the Husband had lost his rights to succeed the TKW Tso due to his action at his father's funeral and his subsequent inheritance of his father's estate. It was also resolved at the meeting that his son TTC was to become the heir to the Tso and be appointed additional manager thereof. A copy of the resolution was submitted to the District Land Office which then approved the appointment of TTC. This prompted the Husband to institute the High Court Action in 1978 and explains why the District Land Officer represented by the then Attorney General was also made a defendant to the proceedings.

64. In his Statement of Claim filed in the High Court Action and which had been amended by his then legal representatives on more than a few occasions, the Husband's main claim against the Wife as one of the defendants was for a declaration that her appointment as the additional manager of TKW Tso was null and void, and for accounts and damages for breach of trust in selling some of the Tso's assets.

65. It is not clear whether the Wife had filed any defence in the Husband's action as she was on record unrepresented and was so throughout the proceedings up to the time when the action was settled in 1983. In fact she was the only unrepresented party in the proceedings, whilst WS and TTC, the respective 1st and 3rd Defendants were represented by the same lawyers on legal aid. It is again not exactly clear why the Wife was not even represented by the Director of Legal Aid if she, like WS and TTC, could not afford to have private lawyers. The evidence seems to suggest that she did not find the Husband's action against her serious enough to warrant her attendance or participation, as her evidence is that she was not even present when the other parties and their Counsel were negotiating to settle the matter which eventually resulted in the consent order of Mr Justice Liu, the relevant terms of which I find necessary to consider to see whether, expressly or impliedly, as argued by the Husband, they were meant to be in full and final settlement of the parties' claims arising out of their marriage or relationship.

66. The order is on page 127 of the bundle, the gist of which was for the Husband's claims to be dismissed upon a declaration by the Court that he was entitled to certain properties of the Tso which were to be forthwith transferred to him by the first 3 defendants including the Wife. They were also to pay him 40% of the net proceeds of sale of 2 other lots of land as and when they received them. These were all the benefits the Husband was to receive under the Order, the rest of it were in fact against him in that it was declared that he was not an adopted son of TKW, nor a member of the Tso, that neither he nor his children shall have any claim of any nature, past, present or future as against the 1st 3 defendants and or the Tso, and that the 3rd Defendant, TTC was the sole successor and manager of TKW Tso.

67. This order was therefore in substance essentially an overall settlement between the Husband, WS and his son TTC. The result was that the Husband and TTC were to share the assets of TKW Tso between themselves with WS to retain her rights as a member of the Tso. The order was however conspicuously silent on the Wife's position as manager or member of the Tso.

68. Unlike WS or TTC, there was no declaration or confirmation of any sort in favour of the Wife as to her rights or position in the Tso. Her evidence is that she even ceased to be the Tso's additional manager or to have any right therein after the settlement because of the declaration that the Husband was not an adopted son of TKW, and has since become dependent on her son TTC. On the terms of the order, I am unable to find any evidence to suggest that there was any overall settlement between the parties as to their claims arising out of their marital relationship. If it was indeed their intention, it could have been very easy for a term to that effect to be included in the order. Furthermore, as argued by the Wife, if there was indeed a settlement between them, why did he not raise the issue at the very beginning of the proceedings or at anytime thereafter before the trial ?

69. Nor do I agree with the Husband's argument that because of the close relationship the Wife had with her son TTC and WS, this settlement with the Husband would in reality have given the Wife the same rights and benefits in the Tso as before. Prior to her appointment as an additional manager in 1968, the Wife was all along supported by WS. After her appointment, there is no evidence that she was able to enjoy the income or any benefits of the Tso as even on the Husband's own admission, only male descendants were entitled to be members of the Tso and only lawful widows such as WS was entitled to its income. The Wife was clearly neither. After the settlement, there is no evidence that she had continued to act as a manager, and instead of relying on WS, she has since been dependant on her son when he became the sole successor of the Tso, which was a natural thing to do. I agree that the Wife's financial situation might have since been improved due to increased financial support from the son who, according to her, would at times give her as much as $50,000 to $60,000 a month for her spendings. This seems to me a natural consequence of her son's position in the Tso, but to say that there can be inferred or implied in the terms of the 1983 settlement an agreement between the Husband and Wife to settle all their claims arising out of their marriage or relationship is simply too far-fetched.

3. Has there been delay in the prosecution of the Wife's claims and if so its effects thereon

70. It is not in dispute that the Wife had since the marriage never made application to Court for financial support either for herself or the children until now, despite, as alleged by the Husband, being entitled to do so. It is submitted on his behalf that the effects of such delays in prosecuting a claim after the marriage has broken down can and should be severe. He in particularly relies on the cases of Krystman v. Krystman [1973] 3 ER p.247 and Chambers v. Chambers [1980] FLR p.10.

71. In Krystman, the Court declined to entertain the wife's claims at all after a period of 26 years had elapsed since the parties separated. It had been a "shotgun" marriage lasting only 2 weeks, and during the 26 years of separation the husband had never supported the wife who had never sought financial relief. Upon the husband seeking dissolution of the marriage, the wife applied for financial relief but Davis L.J. in his judgment decided it would be unjust even to require the husband to pay nominal maintenance to the wife.

72. In Chambers, the wife left the husband after a 21 year marriage to live with another man. There had been 3 children of the family. 20 years after the wife left, her cohabitant fell ill and was unable to continue to financially support her. She therefore petitioned for divorce from the husband and sought financial relief. On her own admission, the sole reason for petitioning for divorce was to apply for ancillary relief. The Court held, inter alia, that after a certain lapse of time a party to a marriage is entitled to the view that there will be no revival or initiation of financial claims against him or her and the longer the lapse of time the more secure he or she should feel and the less should any such claim be encouraged or entertained.

73. In D v. W (Application for Financial Provision : Effect of Delay) [1983] Fam Law p.152, which is also relied on by the Husband, Booth J expressed her frustration at the delay in the prosecution of the ancillary relief claims by the wife. She reasoned that delay engenders bitterness and because of the change in the parties' financial situation and the value and size of their assets and income and the change in the commitments they may have taken on, it was extremely difficult for the Court to do justice between the parties.

74. In this case, it is submitted on behalf of the Husband, it is difficult for this Court to assess when the breakdown of this marriage took place since the marriage never really started. It is argued that 1955 / 6 was a critical period as it was when WS revoked the previous agreement whereby she and the Husband would share equally the income of TKW Tso, and as at that date, the TKW clan established that the Husband was no longer a member of the Tso and assumed semi-legal financial responsibility for the Wife and the children. It is also relevant that at that time the Husband commenced his relationship with Madam Y, with whom he has since cohabited and with whom he has spawned 4 children as issue of the continuing TKC clan. Hence, he argues, that a period of 45 years had therefore elapsed before the Wife commenced these proceedings which constitutes unforgivable delay in her claims.

75. Furthermore, it is argued that the High Court litigation culminating in the order of Mr Justice Liu on 8th July 1983 really finalized the relationship between the clans and established the division of the assets of the respective clans. Similar to matrimonial proceedings, the Husband argues, the Court considered the compromise and gave it its blessing which in effect deprived him of 60% of his rightful entitlement to the income and assets of TKW Tso and its share of the Six Entities and gave it irrevocably to the other side of the family. As it was the intention and understanding of all the parties and their legal representatives when reaching this compromise which was approved by the Court, and since some 20 years has elapsed since that date, is it not reasonable, the Husband asks, that he should consider that there would be "no revival or initiation of financial claims" against him thereafter ?

76. The Husband further argues that his assets have since that time increased in size dramatically through his good husbandry and prudence and with the assistance and support of his true companion, Madam Y. In this regard the Husband relies on the case of Foster v. Foster [1977] 7 Fam Law 112 where, after a marriage lasting 12 years, the parties separated but the matter of financial relief came before the Court 28 years later. In the interim the husband had been living with another woman. Ormrod L.J. said in that case :-

"It was 28 years since the parties had separated, which was half a lifetime. The husband had lived with his second wife much longer than with the first wife and his assets had been built up by and large with his second wife. It was not right to deal with this matters on the basis of the husband's current financial position. The wife could have taken action earlier to divorce him or for wilful neglect to maintain".

77. It follows therefore, argued by the Husband, and from Chambers, that it is proper for the Court to reflect upon what might have been the outcome of an application for financial relief upon divorce or an application for wilful neglect to maintain at the appropriate time, which was 1955 / 6, when the Wife and the children had been entirely supported by the TKW Tso and later by WS's half share and thereafter from the whole of the Tso's income. It is argued that the Court is therefore entitled to take into consideration income derived from a 3rd party, albeit with no legal obligation upon that party to pay the same, as well established in the cases of Bonsor v. Bonsor [1897] P p.77 and Martin v. Martin [1919] P p.283. It is therefore submitted by the Husband that the support which the Wife and the children received from TKW Tso would properly have been taken into consideration by the Court when assessing any appropriate maintenance at that time. Taking into consideration the Husband's liabilities for his father's estate duty and his then limited income, it is probably that no award of maintenance would have been made for the Wife.

78. The Wife's argument is that the marriage was a long one from 1951 to 2000 and therefore there is no question of time lapse or delay as to her claims for ancillary relief. But if this Court feels that there has been delay, it is submitted on her behalf that it will be necessary to look more closely at the history of her maintenance. In this regard she says there were 3 relevant periods :-

(a) 1951 - 1983 when the High Court consent order was made;

(b) 1983 - 1996 when WS died;

(c) 1997 - 2000 when the Wife instituted these proceedings.

79. She accepts there is no dispute that since the marriage up to the 1983 High Court consent order, she was maintained by the income of TKW Tso. When the Husband's father TKC was the manager of TKW Tso, she says he paid for her expenses out of the Tso's income. Since she was the wife of the sole successor of TKW Tso, ie. the Husband, the logical inference is that since 1951 and until his death in 1953 TKC had used the Husband's half of the income under the Tso to support her.

80. From about 1956 the Husband says that WS did not distribute his share of income of the Tso to him, and since the Wife was being maintained by WS with income of the Tso until 1983, it should follow that, argued by the Wife, the Husband's share of the income must have been used to maintain her and the children. Therefore there was indirect maintenance from the Husband and it matters not that WS considered his right under the Tso had been revoked when he inherited the estate of his natural father because as far as the Husband was concerned, the income of TKW Tso was his and he knew that such income was being used to maintain the Wife and the children until 1983.

81. The next period for consideration is after the Consent Order in High Court and before WS's death in 1996, the Wife says she did not divorce the Husband and seek financial relief against him because WS was against it, not because the Consent Order represented a settlement between the two of them.

82. After WS's death, the Wife says she did not take any action because she wanted to wait and see the situation with regard to the 1997 hand-over. She says she never gave up her rights for maintenance and that in fact she did try to ask the Husband everytime she ran into him in the village but he was always trying to avoid her and as she had no idea when he actually resided, she was unable to bring proceedings until now and in the circumstances there is no question of her being dilatory in making her application. She argues that the effect of time lapse depends on the facts of the case which may result in the claim being dismissed or quantum being reduced, or it may not have any effect. In cases where financial claim was dismissed due to lapse of time, she submits that there was separation in the true sense in that the parties involved ceased to have anything to do with each other at all, which is not the situation between the parties in the case here. Despite the Husband's desertion, she argues, her status as his wife has never ceased, and she continued to carry out her duties as daughter-in-law, as mother and was treated by the T's clan accordingly.

83. The effects on delay in prosecuting one's application for ancillary relief are clear from the various authorities quoted above. This case, however, as pointed out by Counsel for the Wife, can be distinguished from those cases due to the peculiar background and circumstances of the customary marriage which I have already gone into in details in considering the other points raised earlier. The evidence is clear that although the Husband never intended to live with the Wife after the marriage and later took on a concubine, he nevertheless allowed the marriage to continue, perhaps in deference to the family elders, and never took any step to divorce the Wife or to formalize his relationship with Madam Y. He was all along fully aware of the Wife's position in his adopted family of WS as well as in the TKW Tso clan, and that the Wife and his children were supported by income of the Tso, as they were entitled to do so by reason of their status in the clan. As pointed out by Counsel for the Wife, there may never have been any financial support directly from the Husband, he had nevertheless allowed her to be so supported with his share of the Tso's income up to 1983 and it can therefore be validly argued that there were indirect maintenance from him for the Wife during that period and she cannot be faulted for not persecuting her claims. It was simply not necessary, in my view, for her to bring any claims at that time.

84. It is true that after the High Court settlement in 1983 the Wife began to rely on her son who derived income from his share of the Tso's assets and hence the "indirect maintenance" from the Husband has since ceased. The evidence is that the Wife had then thought about claiming against the Husband but did not because WS was against it. It is argued that WS's decision was consistent with the evidence that she was old-fashioned and was against any divorce between the parties. It is also the Wife's evidence that she did try to ask the Husband for maintenance everytime she ran into him but he was always trying to avoid her. Apart from WS's objection, I believe another reason for the Wife's non-action between 1983 and the late 90s must be because she was then well-maintained by her son and there was simply no urgent reason to bring legal proceedings until after WS's death and when the son's support started to decrease. For whatever reasons, it is a fact that the Wife did not take any proceedings until year 2000, some 17 years after the Husband's "indirect maintenance" ceased, during which the Husband built up most of his wealth of today. Would it then not therefore, one must ask, put the case in the same position of Chambers ?

85. In the Chambers case, the Wife sought a lump sum of ￡5,000 to purchase a long lease on a flat where she lived with her son of the association with her cohabitant. At the hearing however it turned out that the son had actually been able to obtain a mortgage and loan totalling ￡5,000 and the lease safeguarded the Wife's right to occupy the flat for her life. Her application failed after Wood J held that :-

(i) she had not shown a need for a lump sum to secure accommodation;

(ii) had she brought proceedings in 1957, ie. soon after the breakdown of the marriage, there would have been no power in the court to order a lump sum, as the law then was, and it was unlikely that, in the circumstances, any order for periodical payments would have been made;

(iii) it is now the policy of the matrimonial legislation that on the breakdown of a marriage there should, if possible, be a clean break financially which infers that financial issues should be decided within a reasonably short time of the breakdown;

(iv) after a certain lapse of time as party to a marriage is entitled to the view that there will be no revival or initiation of financial claims against him or her, and the longer the lapse of time the more secure he or she should feel and the less should any such claim be encouraged or entertained;

(v) the provisions of s.25 of the Matrimonial Causes Act 1973 had to be applied, but those provisions, which inter alia required the court "to have regard to all the circumstances of the case", do not exclude the three considerations set out in (ii) to (iv) above and, in this case, those considerations would lead to a rejection of the wife's application;

(vi) having regard to the husband's financial position, as well as all the other circumstances, it would not be reasonable for him to be expected to raise ￡5,000.

86. It seems to me that the lapse of time is an important factor but clearly not the only one. The Court is still required to have regard to all the circumstances of the case, and having considered and found that the wife in that case was not in need for a lump sum and that it would not be reasonable to expect the husband, in his financial position, to raise it, it went on to reject the wife's application. What are the respective financial positions and needs of the parties in this case, I shall next consider.

The Husband's financial situation

87. I shall start with the Husband's financial situation which is relatively straightforward and largely undisputed. He is now 72 years old and lives with his common law wife Madam Y and their elder son in a modest Tuen Mun flat of about 600 sq ft purchased in his son's name under the Home Ownership Scheme in exchange for their former public housing unit. He is unemployed but manages those lands and properties which he has inherited from his father jointly with his brothers. His main source of income comes from his share of the rental received from those lands plus interest on his various bank deposits as well as dividends from his shareholdings, the total of which amounts to between $80,000 and $100,000 per month on average.

88. As aforesaid his assets are mainly of 3 categories :-

(i) cash in bank deposits of about $31 million;

(ii) stocks and shares now worth about $8.4 million;

(iii) sole and joint interests in lands and properties as disclosed in his various affirmations the value of which he claims to be unknown as they are mainly agricultural lands and unless and until they are purchased by the Government under the land resumption scheme, they have no actual value.

89. The first 2 categories of his assets are mainly undisputed as they are well documented save for the fact that the Husband did on 2 occasions in 2000, after the start of these proceedings, give a total sum of $1.5 million to his 2 daughters born to Madam Y. His explanation for these payments is that they were gifts for them. Although the Wife did question the motive behind these payments and that the Husband was unable to explain why he chose to be so generous to his daughters at this particular time, I make no adverse findings against him over these payments in view of their comparatively insignificance in his total assets and that they would not have any impact on his ability to meet whatever financial provisions, if any, that I may order him to make for the Wife at the end of the day.

90. The valuation of the Husband's landed properties is more complicated. These properties are mainly farm lands and are set out in various affirmations of the Husband and more comprehensively in the Schedules of Properties annexed to his written submission. They are of 3 main groups. Those properties derived from his father's estate are in joint names with his brother. Those derived from his 40% of the properties of TKW Tso are in his sole name. The last group consist of properties of the 6 Entities of which the Husband is entitled to 1/12 or 1/24 of their sale proceeds or resumption compensation.

91. There is no formal valuation of any of these properties, partly because of the numerous lots involved that it is financially impractical for either parties to obtain, and partly because the Husband claims that it is impossible to value them in light of the facts that he cannot sell them without his brother's consent, that there is a lack of demand for agricultural land in the New Territories today, that the Government would demand a very substantial premium for a changer of their use, and because of the high costs of maintaining them against abuse by trespassers. For these reasons the Husband does not believe that they are of much significant value.

92. The Wife obviously does not agree with the Husband. She believes that these properties are of very substantial value and at one stage put them at not less than $20 million, although it is not clear on what basis that she made such an assertion.

93. There is no dispute that the Husband made his fortune of today mainly from the proceeds of sale and resumption compensation of such properties in the past. It is also his own admission that the total value derived from the properties of his father's estates since 1976 but mostly between 1989 to 1992 amount to more than $60 million and his share was more than 1/3 thereof. In addition he also received more than $5 million from the 6 Entities over the years, all of which form the bulk of his bank deposits and stock portfolio of today, which should give a fair indication as to the value of the remaining lands in the schedules.

94. I accept that there might have been less demand for these lands in recent years due to economic downturn and slump in the property market, but it would be wholly wrong for me to ignore their potential value in particularly in view of the ever expanding population in Hong Kong and its consequential demands for more housing and other land uses in particularly in the New Territories. In conclusion I agree with the Wife that these plots of lands of the Husband do have significant potential value.

95. The Husband claims to need about $100,000 on average per month for his ordinary living expenses which were never itemised in any of his affirmations but according to his evidence given at the hearing, they seem to be divided into 2 main groups, ie. his personal and family expenses including frequent restaurant meals with his relatives and friends, gifts for birthdays and weddings and other entertainment expenses as well as paying Madam Y $20,000 - $30,000 for household expenses and her use; the 2nd group being expenses for managing his lands and estates including hiring helpers and workers as well as various government charges and expenses. It is not clear in what proportion is each of these 2 groups of expenses in his claimed monthly sum of $100,000, but I would have thought that his personal and family expenses should account for the bigger portion since he is a joint owner of most of the lands with his brother and hence he should not have to be solely responsible for their management expenses. I believe that his personal and family expenses should be at least half of $100,000 per month, if not more, which cannot be said to be extravagant, and in fact quite modest when compared with his overall wealth.

The Wife's financial situation

96. The Wife is now 69 years old and it is also accepted that she has no earning capacity. She has disclosed one property, i.e. her present residence at Yuen Long which has been valued for mortgage purpose in June 2001 at $700,000 when it was mortgaged to G.E. Capital (HK) Ltd for $400,000 to assist with her legal fees and living expenses. The Husband believes that valuations by mortgagee banks are usually conservative and that the Wife had previously put the property at $1 million. The issue over its today's value is not really significant since it is the Wife's intention to sell it as it is too old and dilapidated and to seek a lump sum from the Husband to purchase another flat close to her daughter's home in Shatin. The Wife has disclosed no other property or assets of significant value but the Husband suspects that she may be beneficially entitled to some income and / or assets of TKW Tso and that she may still be a manager of the Tso. I am however unable to find any evidence to suggest that is the case. Furthermore, there is no evidence as to what assets or income that the Tso may still have. As far as the Wife is concerned, there is none left according to her son and hence his monthly maintenance to her has been severely reduced from the good old days of $60,000 to $90,000 per month to the present meagre sum of a few thousand dollars each. She also says that her daughter gives her $5,000 per month in addition to a monthly Government assistance of $625. Lastly she also receives yearly cash gifts of $10,000 to $20,000 from her brother which works out to be about $1,250 per month on average.

97. As pointed out by the Husband, the Wife's claims as to her monthly expenses have varied through the period of these proceedings from $61,171 in July 2000 to $28,900 in February 2002. Her explanation is that since she lives primarily on money given to her by her children, her expenses over the years depended on the amounts which she received, and when they have been reduced recently due to her son's financial difficulties, her expenses have therefore become much more limited but they should not be taken to represent her future needs.

98. Great issues have been taken of the Wife's alleged expenses for dining out with friends and relatives, gifts to grandchildren and above all for her entertainment which included playing mahjong games, gambling on the Star Cruises and overseas trips. According to the Husband, it is impossible to ascertain the truth of the Wife's claims in this regard, since she has not maintained bank accounts or credit cards as would be consistent with a person spending each month the amount she claims. He argues that her monthly needs are more accurately reflected on the current maintenance which she receives and which more realistically conform with her statement that $10,000 per month should adequately cover the Husband's expenses when she applied for an injunction to freeze his bank accounts.

99. I agree with the Husband that other than the Wife's words, there is no documentary evidence such as bank statements or credit card statements to support those of her expenses which are in dispute such as dining out with relatives or gifts to grandchildren. There is however nothing unusual or suspicious about such expenses in view of her background. The Husband himself also claims to enjoy dining out everyday with his friends and relatives. She may no longer be able to afford the amounts as before, but I simply fail to see anything wrong with the nature of such expenses.

100. It is of course different with gambling, which the Husband argues that the Court should not condone.

101. In fact the Husband argues that such conduct of the Wife in frittering away million of dollars in her pursuit of gambling should weigh heavily in the consideration of all the circumstances. I was referred to the case of Martin v. Martin [1976] Fam 335 which held that the Court could properly take into account fact that the husband had entered into transactions beyond his resources and put his wife's money in jeopardy.

102. "Such conduct", said Cairns LJ sitting in the Court of Appeal, "must be taken into account because a spouse cannot be allowed to fritter away the assets by extravagant living or reckless speculation and then to claim as great a share of what was left as he would have been entitled to if he had behaved reasonably".

103. There is no doubt that the Wife did regularly go on the Star Cruises back in the late 90s up to the year of 2000 which is well evidenced by the monthly statements exhibited to her 3rd Affirmation. Her evidence is that at the time when her son was financially well off, he would pay her sufficient maintenance each month to enable her to spend as much as $35,000 on such entertainment expenses which she says was well encouraged by her children for her to enjoy life while she still could at her age.

104. The Court of course does not condone gambling, but a distinction should be made between gambling and recreational or entertaining activities which involve some gambling such as playing mahjong with friends on a Saturday afternoon, which is a popular part-time in Hong Kong, or for that matter going to horse races from time to time. It is all a matter of degree. The Wife's evidence is that she liked going on cruises with her friends where they did not just play a few games of baccarat but also enjoyed dining, singing and chatting, generally to have some good time over the weekends, and just to enjoy life while she could, as encouraged by her children.

105. It was not a case that she did it every day or every other day. Nor is there any evidence that she had frittered away millions of dollars as alleged by the Husband, or ended up in gambling debts as a result. If she indeed had a gambling habit as alleged by the Husband, it seems odd that she would have taken the trouble of getting on these cruises and back instead of simply indulging herself at the local mahjong parlours or gambling dens, or even taking the shorter and easier trip to the Macau casino. I accept that her trips on the Star Cruises were part of her recreational activities which were, at the time when her son could well afford, neither unreasonable nor excessive in the circumstances. So were her various trips to Mainland China and Southeast Asia during that period.

106. The question of course is whether the amount claimed for her future expenses is reasonable in the circumstances. In fact according to the Husband, many of the Wife's stated expenses have been inflated and that the evidence points to a more realistic and reasonable sum in the region of $10,000 - $12,000 per month per month. It is also argued that any reference to the Husband's expenditure is totally inappropriate as he has a lot of expenditure which is necessary to maintain the assets of the TKC clan which have prudently been preserved, and that the monthly expenditure that he claims, is not extravagant in the context of his assets and position as the head of that clan, and is certainly no more than the Wife or the TKW family expended at such time as that clan had assets preserved.

107. I agree part of the Husband's expenditure is necessary for managing his assets and hence any reference to such in considering the Wife's expenses may be inappropriate. However it is also true that some of his personal expenses such as entertainment and restaurant meals as well as his household expenses are indeed in common with the Wife's, and granted that the Wife's household consists only of herself and hence her such expenses should be less, I do not think it is inappropriate to take into account of his such expenses when considering hers. However, before coming to any conclusion as to what would be her reasonable needs, I should first consider her next most contentious claim, ie. the need to purchase a flat in the Shatin area close to her daughter's home.

108. The Wife has been residing for over half of her life in her present residence, which was purchased in 1959 by WS with some assistance by her father. As pointed out by the Husband, it was in this house that the children were brought up. It has a floor area of 803 sq ft with 2 bedrooms and 673 sq ft of roof top where the Wife uses and enjoys for morning exercises and planting. It is argued by the Husband that the Court should not entertain any further claims by the Wife to the capital assets of the TKC clan since she already has her own property in an area where her friends live and the standard of which she is long accustomed to, and that since the Husband lives in accommodation of no higher standard. If this Court should be tempted, argued by the Husband, to provide in some manner for the Wife's request as to a flat, such flat should be of equivalent size and standard as her present flat, and that as it would be unjust for such flat to be available now or eventually to the descendants of the TKW family, it should be purchased in the name of the Husband, subject to a life tenancy by the Wife and the Husband should also benefit from the proceeds of sale of the Wife's present flat.

109. As referred to earlier, the reasons given by the Wife for a new flat are that her Yuen Long residence is too old and dilapidated for her to live in for the rest of her life, and that because of her advancing age, it is necessary for her to live close to her daughter so that she can be looked after by her. Both reasons sound perfectly valid to me and I agree that at this stage of her life the Wife is entitled to a secured and comfortable roof over her head by moving to her daughter's neighbourhood.

110. I do not however agree that she should require as much as $6 million to $7.5 million to purchase such a flat. As pointed out by the Husband, the list of flats for purchase as exhibited by her were mostly in excess of 1,100 sq ft with 2 bedrooms and a storeroom or amah's room. She may have the use of some 1,479 sq ft of space including the roof in her present flat, but it is not appropriate to equate that to her actual need. I believe a flat of about 700 to 800 sq ft with 2 bedrooms, in comparable size and standard to the Husband's should cater to her reasonable needs and this means a purchase price within $5 million which should include decoration and furnishing costs.

111. The last item of the Wife's expenses that I am required to consider is her need for a domestic helper which she says is not unreasonable given her age and that she is under medication for hypertension, and the fact that the Husband is living with Madam Yp and their son and is undoubtedly being looked after by Madam Y. A domestic helper will cost the Wife about $4,000 per month and given her age and needs, I agree that such request is not unreasonable. In conclusion I am of the view that a monthly sum of $35,000 would be an appropriate amount to meet the Wife's reasonable needs and requirements for a comfortable life in comparable standard with that of the Husband, and at the same time to enable her to pursue leisure activities which bring her pleasure. Taking a life expectancy of 84.5 years for her, this would represent a capitalization of about $4.5 million under the Duxbury calculation to meet her reasonable needs for her expected remaining life.

112. Having considered the parties' respective financial position, I now return to the Husband's question that after a lapse of some 17 years since the High Court settlement in 1983, was he not entitled to the view that there would be no revival or initiation of financial claims against him, and if so whether the Wife's claim should in the circumstances be entertained. As I have found earlier in the judgment, the 1983 High Court order was not, and could not be, a settlement of the parties' claims arising out of their marital relationship. Nor am I convinced that it is a case in which the Husband could be said to have been led into a false sense of security that there would be no financial claims by the Wife as it was clear to him that she was no longer entitled to the support of the Tso after 1983 and has since become dependent on her son. As she is now clearly in needs and in view of the Husband's financial resources and the circumstances of this case, it would not be fair or just to reject her application on that basis.

The standard of living enjoyed by the Family before the breakdown of the marriage

113. I have dealt with this matter in details above. In view of the many unusual features of this case, it is essential to consider the standard of living of the parties at various stages of their marriage up to the presence, which I have already done above.

Contribution

114. It is argued by Ms Chow for the Wife that while the Husband chose not to have a family life with her and there was nothing she could do to prevent his desertion, the fact that the Wife did everything that she possibly could qua wife in the context of an extended and traditional family by bringing the children up under very difficult circumstances without any form of support or assistance from the Husband, and by assisting the Husband's father and WS in their management of the clan's assets, by looking after the Husband's grandmother and WS, and, despite the Husband's behaviour, by remaining a loyal and faithful wife in the marriage, are contributions of great significance which the Court should take into account in considering her claims.

115. It is also argued that although as an adopted son the Husband had acknowledged his responsibilities and duties towards WS, the fact is that not only had he never fulfilled these duties, he also upset her by inheriting a share of his father's estate and after WS refused to distribute the income of TKW Tso to him, he would badger her for money and to appoint him as additional manager, and would become violent when his demands were not met, cumulating in bringing proceedings against her in the High Court in 1978. On the other hand, his duties towards WS as an adopted son were all properly discharged by the Wife instead.

116. The Husband does not dispute that the Wife has been a mother to the 2 children of the family but argues that she has already been compensated for such contribution by the High Court settlement, and that as she has never made any contribution qua "wife" to the marriage, it would be singularly unjust for her to be awarded any capital sum from the wealth that has comparatively recently accrued to the TKC side of the family.

117. There is no question that the Wife single-handedly brought up the children under very difficult circumstances, financially and otherwise, as the Husband was never involved, as admitted by him, and even when he was, he never helped. There is the evidence that in 1956 he refused to let the Wife and their son live at the vacant cockloft of his pawnshop premises which would have saved them the long and hazardous journey each day to and back from the son's school. He also refused to pay for his son's studies in Canada and objected to the sale of some of the Tso's assets by WS for such purpose. Such behaviour and total lack of any responsibilities towards his children deserve criticism and reflect on the Wife's difficult job as being both parents to the children throughout the marriage.

118. The definition of "contribution" in section 7(1) of the Ordinance includes past and likely future contributions and specifically refers to "any contribution made by looking after the home and caring for the family". In Wachtel v. Wachtel [1973] 1 ALL ER 829, CA it was said that the wife who look after the home and family contributes as much to the family as the wife who goes out to work. The one contributes in kind, the other in money and money's worth. Whilst it remains the case that a wife who contributes by doing everything expected of her as wife and mother has that contribution recognised by the Court, a wife may, by her exceptional contribution to the achievement of the family's wealth, receive an enhanced award, as in the case of Preston v. Preston [1982] 1 ALL ER 41, CA where the Court found that the wife had made an exceptional contribution to the wealth generated during the relationship and marriage, a contribution greater than that often made by wives after long marriages, and was therefore given an enhanced award. Such a wife has, in the words of Ormrod LJ in Page v. Page [1981] 2 FLR 198, CA, earned her share.

119. It may be true to say that the Wife has made no contribution qua "wife" if the marriage were one of those which we are all familiar with today, but this was a traditional customary marriage and the evidence is that she did contribute by doing everything expected of a principal wife in such a marriage. In that sense such contribution should be recognized and it would not be just or fair to allow the Husband, whose desertion had prevented the Wife from contributing qua "wife", to use this as a reason to trivialise or minimize her contribution.

120. A case in point to which I was referred by the Wife is Pearce v. Pearce [1980] 10 Fam Law 209 where the husband and wife aged 53 and 45 respectively married in 1959 and had 3 children. The marriage was dissolved in 1969 and custody of the children was given to the wife. A nominal order in respect of financial provision was made against the husband who had been unable to keep any employment and was an undischarged bankrupt at the time of the order. Since 1969 the parties lived on social security and the husband provided no financial contribution to the wife and children. In 1978 the husband inherited his father's house together with a cash sum of about ￡15,000 from his father's estate. The wife applied for a lump sum payment and was awarded ￡12,000 for herself and ￡1,000 respectively for the 2 younger children. The husband's appeal was dismissed by the Court of Appeal where Ormrod LJ said :-

"That does not mean to say however that the Court should give any encouragement to persons, wives or husbands, to make application for lump sum or property adjustment orders long after the divorce has taken place. At the same time it makes it clear that the Court retains its jurisdiction to entertain such applications in cases where the circumstances are unusual or where there are good reasons for thinking that the justice of the case requires the Court to make a lump sum order even though a long period of time has elapsed since the marriage was dissolved. In other words, lapse of time is an important factor to be taken into account in the exercise of discretion under s.25 of the 1973 Act. It is part of "all the circumstances of the case", and in some cases it will be a very important circumstance; it may be a decisive circumstance, but in this case the facts are so extreme. One has here a husband who has never paid a penny piece for the maintenance of his former wife or his three children since, at the latest, 1969, and it means that the wife has lived in great difficulty on social security with all the responsibilities for bringing up these three girls unaided, all that length of time, so that on the merits, in my judgment, she has a strong case. Her claim on the merits certainly goes a long way to eliminating the contrary factor, the lapse of time ...... These two people, the husband and wife, are tied by the fact that they have three children. The husband has never attempted to discharge his obligations in relation to these three children. The whole responsibility has been placed on the wife, whose lift must have been made very difficult all these years. Is there any reason whatever why, now that the husband has come into a certain amount of money, she and the children should not have the opportunity of benefiting to some extent from it ?

Then the last point taken in the notice of appeal is the point that the money and the source of the fund was acquired by gift or inheritance nine years after the dissolution had been made. Again, that is clearly a matter which the Court must take into account in exercising its discretion in these matters. It may be again a very important consideration. For my part I would say that having regard to the peculiar facts of this case, the fact that the father has never discharged his responsibility at all to the children and his former wife; the fact that he has inherited these resources, is not a ground for treating them in any way exempt from the operation of ss.23 and 25. In those circumstances it was a proper case to give leave to the wife to apply for a lump sum order a long time out of time. It was a proper case to make a lump sum order".

121. The Wife's position in the present case, submitted by her Counsel, is very similar in that she brought up the children without any assistance or contribution from the Husband. Furthermore, it is argued that the Husband's failure to carry out his duties as husband and father throughout the marriage is such gross and obvious conduct that the Court should take into account in considering her application. She refers to Robinson v. Robinson [1983] 1 ALL ER 391 where Slade LJ said:-

"The past conduct of a wife should cause the Court in the exercise of its statutory discretion to reduce or eliminate the amount of maintenance which it would otherwise have awarded to her if it has been shown to be such that it would offered a reasonable person's sense of justice to disregard such conduct".

122. In West v. West [1977] 2 ALL ER 705 the wife refused to cohabit with the husband from the outset of the marriage. The trial judge found that she was in desertion but thought that her conduct did not reach the "gross and obvious" standard. On appeal Sir John Pennycuick said :-

"I do not think the judge was right when he held that the wife's conduct in this matter, as he found it as a fact, was not obvious and gross misconduct in relation to his marriage. It seems to me and I find it difficult to think of any conduct more gross than totally to fail to set up any marriage life at all and it is no fault of anyone else, and that for reasons which the judge held to be predominantly her own fault. It seems to me that that was gross and obvious misconduct ...... I suspect that the word "gross" had given rise to some misunderstanding in this connection and that the word "gross" has been given an imputation of moral blame. In fact, I do not think the word "gross" really caries any sort of moral judgment. It means I think no more than "of the greatest importance" ......"

123. In J v. J [1980] 1 ALL ER 156, it was also said that :-

" ...... in assessing the gravity of a party's conduct on the financial provision, the test to be applied is similar to that propounded by Lord Reid in Williams v. Willmas [1964] A.C. 698 in regard to "cruelty" ...... that is to say that a party's conduct would be of sufficient gravity to affect the issue if the facts are such that, after making all allowances for his disabilities and for the temperaments of both parties, the character and gravity of his behaviour was of such a nature that it would be repugnant to anyone's sense of justice to ignore it in deciding the provision to be made by one for the other or what should be their appropriate shares in the family assets ......"

124. Following these cases, it is argued that since a wife claiming financial relief may have her claim reduced by reason of her conduct, by the same token her award may be increased by reason of her husband's conduct. She relies on the case of Jones v. Jones [1975] 2 ALL ER 12 where the husband's conduct in attacking the wife was taken into account when considering the wife's claims. Orr LJ sitting in the Court of Appeal said :-

"It was argued that conduct is to be considered as relevant only for the purpose of cutting down a claim by a wife to a share of matrimonial property and cannot be applied so as to increase it. I for myself cannot accept the validity of this contention. As was pointed out in argument, the question in cases of this kind involve conflicting claims to matrimonial property, and an increase of one involves inevitably a decrease of the other. Moreover, in my judgment this was a case in which the conduct of the husband had been of such a gross kind that it would be offensive to a sense of justice that it should not be taken into account".

125. It is clear that the Husband's failure in his duties and responsibilities towards the Wife and the children throughout the marriage is one of the relevant matters to be taken into account. However, given the circumstances of this case, and the fact that she had never played any part in the accumulation of the Husband's wealth of today, I do not agree that her contributions are such that they should necessarily enhance her award, but I have no doubt that they justify her claims.

126. In her final submission Ms Chow for the Wife seeks a lump sum of $7.64 million to $11.46 million being capitalization of her monthly needs of $60,000 to $90,000 respectively based on her life expectancy up to the age of 84.5 years. She also seeks a further sum of $5.68 million to $7.5 million for the purchase of a new home. She also submits that in applying the recent House of Lords decision in White v. White [2000] 3 WLR 157, the Court should take into account of the Wife's wish to leave money for her children or grandchildren as the Husband's available assets clearly exceed the parties' financial needs.

127. While accepting that the case of White for the first time indicated that it was reasonable for "big money" cases for a spouse to be awarded capital in excess of her needs so that she may leave such excess to their issue, it is submitted by the Husband that such a concept in this case would be severely unjust to the Husband and / or the issue of the TKC side of the family, as it is quite apparent that there is no love lost between the Husband and his children by the Wife. It is alleged that the entire driving force behind these proceedings is their son TTC who, having squandered with the Wife the vast majority of their substantial inheritance, now has to resort to living with the Wife and utilizing funds borrowed from G.E. Capital (HK) Ltd and secured against the very roof over her head. In fact, I am told, that TTC has issued and pursues proceedings against the Husband in another High Court action in 1999 which should lead one to surmise that he is the driving force behind these proceedings.

128. In the White case, the facts of which are no doubt widely known by now but would be useful to be repeated here, the parties had both farmed independently before they married in 1961 and continued farming in equal partnership thereafter. Following the breakdown of their marriage in 1994 the wife petitioned for divorce and applied for ancillary relief so as to cede the farms to the husband and seek a lump sum of ￡2.2m to enable her to continue farming on her own. The judge found that the net assets were ￡4.6m, of which ￡1.5m belonged to the wife. He declined to break up the farming enterprise and, having capitalized the wife's income needs and assessed the cost of buying a home for her, awarded her a lump sum of ￡800,000 on a "clean break" basis, leaving the farms and business with the husband. The wife appealed, contending, inter alia, that the judge had failed to give sufficient weight to the duration, extent, diversity and value of her contribution to the partnership and to recognise that her contributions were the dominant factor in the balancing act required by section 25 of the Matrimonial Causes Act 1973, as substituted, and that an award of one-fifth of the total net assets was manifestly unfair and plainly wrong. The Court of Appeal held, allowing her appeal, that an approach based on the wife's future needs or reasonable requirements was inappropriate and that, having regard to all the circumstances of the case in accordance with section 25 of the Act of 1973 as substituted, she was entitled to a lump sum of ￡1.5m reflecting her contribution both to the business and to the family. The husband appealed to the House of Lords and the wife also cross-appealed.

129. In dismissing both appeals, Lord Nicholls of Birkenhead said :-

"Self-evidently, fairness requires the Court to take into account all the circumstances of the case. Indeed, the statute so provides. It is also self-evident that the circumstances in which the statutory powers have to be exercised vary widely. As Butler-Sloss L.J. said in Dart v. Dart [1996] 2 F.L.R. 286, 303, the statutory jurisdiction provides for all applications for ancillary financial relief, from the poverty stricken to the multi-millionaire. But there is one principle of universal application which can be stated with confidence. In seeking to achieve a fair outcome, there is no place for discrimination between husband and wife and their respective roles. Typically, a husband and wife share the activities of earning money, running their home and caring for their children. Traditionally, the husband earned the money, and the wife looked after the home and the children. This traditional division of labour is no longer the order of the day. Frequently both parents work. Sometimes it is the wife who is the money-earner, and the husband runs the home and cares for the children during the day. But whatever the division of labour chosen by the husband and wife, or forced upon them by circumstances, fairness requires that this should not prejudice or advantage either party when considering paragraph (f), relating to the parties' contributions. This is implicit in the very language of paragraph (f): "the contributions which each ...... has made or is likely ...... to make to the welfare of the family, including any contribution by looking after the home or caring for the family". (Emphasis added). If, in their different spheres, each contributed equally to the family, then in principle it matters not which of them earned the money and built up the assets. There should be no bias in favour of the money-earner and against the home-maker and the child-carer. There are cases, of which the Court of Appeal decision in Page v. Page (1981) 2 F.L.R. 198 is perhaps an instance, where the Court may have lost sight of this principle.

A practical consideration follows from this. Sometimes, having carried out the statutory exercise, the judge's conclusion involves a more or less equal division of the available assets. More often, this is not so. More often, having looked at all the circumstances, the judge's decision means that one party will receive a bigger share than the other. Before reaching a firm conclusion and making an order along these lines, a judge would always be well advised to check his tentative views against the yardstick of equality of division. As a general guide, equality should be departed from only if, and to the extent that, there is good reason for doing so. The need to consider and articulate reasons for departing from equality would help the parties and the court to focus on the need to ensure the absence of discrimination.

This is not to introduce a presumption of equal division under another guise. Generally accepted standards of fairness in a field such as this change and develop, sometimes quite radically, over comparatively short periods of time. The discretionary powers, conferred by Parliament 30 years ago, enable the courts to recognise and respond to developments of this sort. These wide powers enable the courts to make financial provision orders in tune with current perceptions of fairness. Today there is greater awareness of the value of non-financial contributions to the welfare of the family. There is greater awareness of the extent to which one spouse's business success, achieved by much sustained hard work over many years, may have been made possible or enhanced by the family contribution of the other spouse, a contribution which also required much sustained hard work over many years. There is increased recognition that, by being at home and having and looking after young children, a wife may lose for ever the opportunity to acquire and develop her own money-earning qualifications and skills. In Porter v. Porter [1969] 1 W.L.R. 1155, 1159, Sachs L.J. observed that discretionary powers enable the Court to take into account "the human outlook of the period in which they make their decisions". In the exercise of these discretions "the law is a living thing moving with the times and not a creature of dead or moribund ways of thought".

Despite these changes, a presumption of equal division would go beyond the permissible bounds of interpretation of section 25. In this regard section 25 differs from the applicable law in Scotland. Section 10 of the Family Law (Scotland) Act 1985 provides that the net value of matrimonial property shall be taken to be shared fairly between the parties to the marriage when it is shared equally or in such other proportions as are justified by special circumstances. Unlike section 10 of the Family Law (Scotland) Act 1985, section 25 of the 1973 Act makes no mention of an equal sharing of the parties' assets, even their marriage-related assets. A presumption of equal division would be an impermissible judicial gloss on the statutory provision ......"

130. It is not suggested by the Wife in this case that she should be entitled to an equal division of the Husband's assets. In fact she seems to have abandoned, quite rightly so, her claims for a share of the Husband's lands, and that in her claim for a lump sum, she is not even asking for half of his liquid asset of shares and cash of about $40 million, although the maximum amount of her claims based on a monthly expenditure of $90,000 for a Duxbury type fund plus a new flat happens to be close at $18.9 million. I have however already put her reasonable needs at a more realistic level of $35,000 per month which would require a Duxbury capitalization of about $4.5 million plus a further sum of $5 million for the purchase of a flat in Shatin. This would bring us to a total sum of $9.5 million. This is on the basis that she can keep or sell her Yuen Long Property which has an outstanding mortgage of $400,000. The Husband claims that its net equity should be more substantial than that valued by the bank. I do not think the difference, if any, is significant, after all, the flat is more than 40 years old and not in good condition.

131. There is a dispute over whether I should increase the Wife's award by taking into account of her wish to leave money for her children or grandchildren. The Husband argues that the Wife should only be given a life interest in the flat which is to be reverted back to him or his estate. I do not think that would be appropriate. There is no doubt that the Wife is extremely close to her 2 children while there is absolutely no love lost between them and the Husband, as admitted by him, and that whilst the son may have assisted the Wife in these proceedings, which is not at all surprising in view of their good relationship, there is however no evidence that he was the driving force behind these proceedings or that he is to get any benefit directly out of them other than the fact that any award to his mother may release him of his financial support for her.

132. In White, Lord Nicholls said about this matter as follows :-

"I must mention a further matter on which, through her counsel, Mrs. White advanced submissions. It arises out of observations made in Page v. Page, 2 F.L.R. 198 Ormrod L.J. at p.201, expressed the view that when assessing the amount of a lump sum provision under section 25 it is not legitimate to take into account the wife's wish to be in a position to make provision by will for her adult children. Dunn L.J., at p.203, made a similar statement. Ormrod L.J. repeated this in his third general proposition in Preston v. Preston [1982] Fam 17, 25 Brandon L.J. was of the same view: see p.36.

I agree with this proposition to a strictly limited extent. I agree that a parent's wish to be in a position to leave money to his or her children would not normally fall within paragraph (b) as a financial need, either of the husband or of the wife. But this does not mean that this natural parental wish is wholly irrelevant to the section 25 exercise in a case where resources exceed the parties' financial needs. In principle, a wife's wish to have money so that she can pass some on to her children at her discretion is every bit as weighty as a similar wish by a husband. A Duxbury type fund is intended to provide money for living expenses but not more. The amount of the Duxbury fund is calculated on the basis that the capital as well as the income will be used. The calculation assumes that nothing will be left when the wife dies. This was put graphically by Peter Singer Q.C. in a challenging paper presented to the Family Law Bar Association in May 1992. The Duxbury fund calculation involves using income and ultimately exhausting the capital at the theoretical point when the wife would down her last glass of champagne and expire as predicted by the life tables.

In my view, in a case where resources exceed needs, the correct approach is as follows. The judge has regard to all the facts of the case and to the overall requirements of fairness. When doing so, the judge is entitled to have in mind the wish of a claimant wife that her award should not be confined to living accommodation and a vanishing fund of capital earmarked for living expenses which would leave nothing for her to pass on. The judge will give to that factor whatever weight, be it much or little or none at all, he considers appropriate in the circumstances of the particular case".

133. Having considered all the facts and circumstances of the case, and in reference to what was being said in White that a Duxbury calculation is just a guide in assessing the amount of money required to provide for a person's financial needs, a means of capitalizing an income requirement which is but only one of the factors to be taken into account in arriving at the amount of an award, I am satisfied that in this unusual case where resources clearly exceeds needs, I should take into account the wish of the Wife that her award, in Lord Nicholls' words, "should not be confined to living accommodation and a vanishing fund of capital earmarked for living expenses which would leave nothing for her to pass on". I have come to the conclusion that a total lump sum of $12 million for her would be most fair and appropriate in the circumstances of the case. It should, as I have pointed out, provide her with the security of a good roof over her head and sufficient means to live out her remaining life comfortably and at the same time to pursue her favourite leisures in a reasonable manner. This award also gives proper recognition to her various contributions to this unusual marriage, and is one which is well within the Husband's means and one which should leave him with more than sufficient assets to meet his own needs as well as those of his own family in particularly that I have left his interest in his landed properties intact. Above all it is a fair and just award for the Wife in all the circumstances of the case and one which will hopeful bring closure to the long running dispute between the parties.

134. The final matter which I have to deal with is of course the issue of costs of the ancillary relief aspects of these proceedings. As the Wife is no doubt said to be successful with her application, and having regard to the parties' financial resources, it would be appropriate to allow costs to follow the event in awarding her costs which should, in my view, also cover her application for maintenance pending suit but not her application to freeze the Husband's assets. In the light of the evidence, I agree with the Husband that there was no real justification for that application where there should be no order as to costs. These costs orders shall of course be order nisi. Last but not least, I wish to express my gratitude to Counsel for both parties for their most valuable assistance both at the hearing and in their written submissions in this complicate and difficult case.

135. My order is therefore as follows :-

1. The Respondent Husband shall upon decree absolute pay to the Petitioner Wife a lump sum of $12,000,000.00 in full and final settlement of all her claims for ancillary reliefs against him which claims shall stand dismissed;

2. The Respondent shall pay the Petitioner's costs of and incidental to her application for ancillary relief including all costs reserved with certificate for Counsel save for her application for injunction with no order as to costs. This is an order nisi to be made absolute at the expiration of 21 days. The Petitioner's own costs to be taxed on Legal Aid Regulations.