G S also known as S, G v. Sm Formerly Known As K, M

FCMC 11746/2016

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES NO. 11746 OF 2016

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Coram: Her Honour Judge Sharon D. Melloy in Chambers (Not open to public)

Date of Hearing: 3 November 2017

Date of receipt of additional documents from the Respondent: 8 November 2017

Date of Judgment: 24 November 2017

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JUDGMENT
(Maintenance Pending Suit)

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Introduction

1.This is an application by a Respondent wife for maintenance pending suit in the sum of HK$3,000 per month. In her summons dated the 25 November 2016 she originally sought a total sum of HK$14,000 per month. However, at the hearing of the 10 March 2017 it was agreed that the husband would pay the wife interim maintenance for the child of the family in the sum of HK$4,500 per month. In addition, he undertook to pay for half of the mortgage on the former matrimonial home in the additional sum of HK$4,517 per month. The issue of the wife’s maintenance pending suit was adjourned to the 26 April 2017. I set out what happened next in my Ruling on Recusal dated the 13 October 2017 as follows:  

4. … Up until that point both parties had been represented by solicitors. Unfortunately, however immediately prior to the hearing the wife’s legal aid certificate was discharged and she subsequently represented herself. The wife was very upset at the hearing and it seemed that the main issue was that she needed domestic help in order to be able to go out to work. As things stood she had no one available to look after the child. Consequently, a compromise was eventually reached. The husband undertook with immediate effect that he would pick the child up from the school bus stop at the end of each school day and that he would then look after the child until the wife returned from work or was otherwise available. On that basis the maintenance pending suit summons was adjourned sine die with liberty to restore, the idea being that the wife would be able to return to work and support herself.

5. Unfortunately, it seems that this negotiated solution was not acted upon. Ms. Manek maintains that immediately after the hearing the wife made another proposal which was not accepted by the husband, with respect to final settlement. At subsequent hearings the wife appeared agitated and wished to have the issue of the original maintenance looked at again, whilst not seeking to have the application formally restored. She subsequently issued the summons for recusal referred to above.

2.At the First Appointment hearing on the 27 October 2017 the wife confirmed that she wished to restore the hearing on maintenance pending suit.  The only remaining point in dispute was the amount to be paid to herself on an interim basis. She did not wish to disturb the interim order for maintenance for the daughter or the husband’s undertaking with respect to the mortgage repayments.   

Background

3.I also set out the background to this case in my Recusal Ruling which is repeated here as follows:

3.   This is a case concerning two ethnic Indians. The Petitioner husband was born and grew up in India and came to Hong Kong in order to marry the Respondent wife. The wife was born and raised in Hong Kong. According to the papers the parties met in 2006 and married later that year. They have one child, a daughter, who was born on the XX October 2010 and is now almost 7 years old. It seems that unhappy differences arose between the couple and on the 13 September 2016 the husband issued proceedings based on the wife’s unreasonable behavior. The decree nisi was granted on the 27 April 2017. The parties were also able to come to terms with respect to their daughter and on the 10 March 2017 an order was made by consent that the parties have joint custody of the child with care and control to the wife and defined access to the husband.

4.I would add that the Recusal hearing was heard on the 9 October 2017 and the mother’s application was dismissed on the 13 October 2017.

The issue

5.There is then only one issue to be currently determined namely how much maintenance, if anything at all, should be paid to the wife by the husband on an interim basis?

The law

Maintenance pending suit and interim maintenance

6.The law is well known and not in dispute. Section 3 Matrimonial Proceedings and Property Ordinance Cap 192 states that the only governing principle is that the court shall make such order as it considers reasonable in all of the circumstances of the case. Consequently, applications such as these are approached on a broad-brush basis. A detailed examination of the parties’ means may be examined at a later date at a full ancillary relief hearing if there is no agreement in the meantime, when there is then every opportunity to achieve fairness by means of a set off. In other words, if there is any overpayment or underpayment that can normally be rectified at a final ancillary relief hearing. As Rayden points out

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

7.Further

In practice, as oral evidence is rarely given, it will be unusual for the court on an application for maintenance pending suit to be in a position to make findings of fact on issues in dispute sufficient, for example, to deal with conduct or allegations of non disclosure.  However, if it is demonstrated that the paying party has not performed his duty to make full and frank disclosure of his financial resources, then the court can take a broad and robust view of his means, and it does not have to accept and proceed on the basis of the assertions of the paying party as to his means and an inability to pay.  The court can look at the reality of the situation …… Any under provision or over provision in the order for maintenance pending suit can always be corrected when the account comes to be taken at the substantive hearing when there are every opportunity to do fairness by set off ……” (See paragraphs 16.18 of Rayden, 18^th edition).

8.Likewise the court may look to the assertions made by the payee and take a similar approach when looking at her means and alleged reasonable requirements.  The court should look to the reality of the situation, in so far as it can, in relation to bare assertions made by either the husband or the wife.

9.Ms Manek for the husband also referred me in particular to the Court of Appeal decision in HJFG v KCY [2012] 1 HKLRD 95 where it was held that:

“(a) The sole criterion to be applied in determining the application is ‘reasonableness’, which is synonymous with ‘fairness’.

(b) A very important factor in determining fairness is the marital standard of living. That is not to say that the exercise is merely to replicate that standard.

(c) In every maintenance pending suit application there should be a specific maintenance pending suit budget which excludes capital or long-term expenditure, more aptly to be considered on a final hearing. That budget should be examined critically in every case to exclude forensic exaggeration.

(d) Where the affidavit or Form E disclosure by the payer is obviously deficient, the court should not hesitate to make robust assumptions about his ability to pay. The court is not confined to the mere say-so of the payer as to the extent of his income or resources.  In such a situation the court should err in favour of the payee.”

Discussion

The husband’s ability to pay     

10.It is the husband’s case that he simply cannot afford to pay more than he is paying at present.  He says that he is currently earning in the region of HK$17,150 per month, which includes his full time job plus another part time job. He points out that he does not speak Cantonese and that his earning potential is somewhat limited as a result. He also complains of some health issues namely varicose veins, which makes standing for extended periods difficult. He says that he is struggling to make ends meet and that he has had to borrow from friends in order to keep up with the current payments. He says that he only has HK$2,141 per month for his own living expenses once the maintenance and mortgage and other essential outgoings are paid.

11.The difficulty with the husband’s case is that he did have a more lucrative part time job at the beginning of these proceedings namely as a bouncer in a club. He is also reasonably young at only 33 years of age. Thus it seems reasonable to conclude that he should be able to earn a little more than he is currently earning.

The wife’s earning capacity    

12.There is similarly a lot of disagreement surrounding the wife’s earning capacity. There is no dispute that she has worked throughout the marriage and that her previous job came to an end on the 31 December 2016. It is the husband’s case that this was contrived – something that is vehemently denied by the wife. In any event the wife has not worked since. It is though reasonably clear that she will need to work going forward. It is the husband’s case that the wife’s earning capacity is greater than his whereas the wife argues that she needs more financial support from the husband, in order to employ a domestic helper and that without this she cannot work. Ms Manek points out that in any event the wife should be able to work part time during the daughter’s school hours. The husband is also of the view that the wife has been working in the interim period although there does not appear to be any hard evidence to support that proposition.

13.As with the husband it is also clear that the wife has some debt and that she is struggling to make ends meet. At one point during the hearing the wife even suggested that the daughter live with the husband and that the current difficulty might be resolved in that way.

14.In summary then I accept that this is one of those very difficult cases where there is simply not enough money to go around and where there is no alternative but for each side to maximize their earning capacity. The wife says that during the marriage the husband used to give her HK$23,000 per month and that in addition she had her own income to rely on. Although that may have been the case then, it is clear that the husband would not be able to pay such a high sum now and that he has his own outgoings to pay, including rent etc.

15.I have looked at both parties’ outgoings and neither seem to be particularly excessive – but together they are significantly more than the husband currently earns. I certainly accept that even if the husband was able to increase his income a little that he is unlikely to be able to afford an additional HK$3,000 per month. Similarly, I accept that infact the wife requires a lot more than HK$3,000 per month in addition to the maintenance for the child and the contribution towards the mortgage repayment. It seems to me that there is no alternative but for her to return to work and as quickly as possible. Other solutions may need to be explored for child care and she may need to make enquiries of the Social Welfare Department and other NGO’s in that respect.

Conclusion

16.In such circumstance I shall order that the husband pay an additional sum of HK$750 per month as maintenance pending suit for the wife, with effect from the 1 December 2017. I will not backdate this sum. In so far as costs are concerned given that this is a finely balanced application and that each side had an arguable case, I shall exercise my discretion and make an order nisi to be made absolute in 14 day’s time that there be no order as to costs. The husband’s own costs to be taxed in accordance with Legal Aid Regulations.

Ms Manek of Messrs B Manek & Co for the Petitioner

The Respondent appeared in person