Ybh v. Tyc
Read the full judgment text of FCMC 1091/2015 on BabelCite. This Family Court judgment was delivered on 21 February 2018 before Deputy District Judge K. K. PANG.
Matrimonial Causes – Ancillary Relief – Sharing Principle – Needs – Pre-marital Property – Matrimonial Home – Clean Break – District Court – 8-year marriage – No children – Colonnade sold and proceeds equally divided – Pacific View retained by Husband – 35/65 asset split – Wife pays Husband HK$1,000,000 – Husband pays Wife's costs
Legal issues: Classification of Assets · Application of Sharing Principle · Departure from Equal Division
Outcome: Ancillary relief granted; Clean break; Colonnade sold and proceeds equally divided; Wife pays Husband HK$1,000,000; Husband pays Wife's costs.
Cites 4 cases
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FCMC 1091 / 2015 [2018] HKFC 31 IN THE DISTRICT COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION MATRIMONIAL CAUSES NO. 1091 OF 2015 ----------------------------
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----------------------------------- J U D G M E N T ----------------------------------- 1.I would refer the petitioner wife as the “Wife” and the respondent husband as the “Husband”. This is the trial on the Wife’s application for ancillary relief. Background 2.The Husband was born in 1950 and brought up in Hong Kong. He was graduated from the University of Hong Kong in 1972 and obtained his MBA from the University of British Columbia in 1976. Between 1976 and 1997, he worked at an international bank. Between 1998 to 2006, he was the Managing Director of an international travel agency. He was retired from work in September 2005. 3.The Wife was a Malaysian Chinese born in 1961. She obtained the Diploma in Office Administration from the University of Cardiff in 1980. Between 1992 to 2000, she carried on a partnership business in travel and tourism in Singapore. 4.The parties met in Singapore in 1999. In June 2000, the Husband signed an agreement for the purchase of a flat (the “Colonnade”) in Tai Hang. At that time, the Colonnade was a development under construction that was scheduled to be completed in May 2001. The parties were married in July 2000 in Hong Kong. Soon after their marriage, the Wife moved to live with the Husband in a flat (the “Pacific View”) in Tai Tam that was purchased by the Husband in 1992. In early 2001, the parties moved to live in the Colonnade. 5.In 2002, the Wife closed her business in Singapore and set up a travel business in Hong Kong. In 2004, she closed her business in Hong Kong. In about 2005, she invested in her cousin’s restaurant in Penang. Between September 2006 to February 2007, she worked for a start-up sales office of jewel products in Hong Kong. 6.In July 2007, the parties had an altercation that was reported to the police. Both parties were detained in police station overnight and sent to the Magistrates Court. Both were charged and fined. 7.In about November 2007, the Wife became the executive producer of a digital audio-visual production company. Between 2006 to 2008, the Wife was the Chairperson of the Malaysia Association of Hong Kong. 8.In July 2008, the parties were separated and the Wife moved to the guest room. 9.In January 2009, she stepped down as Chairperson but remained an executive committee member from 2009 to 2010. Between 2011 and 2013, she was the Chairperson of the Malaysia Association of Hong Kong again. 10.In January 2015, the Wife petitioned for divorce on the ground of the parties having lived apart with each other for a continuous period of at least 2 years. There are no children of the family. The petition went on uncontested. Decree Nisi was granted in September 2015. 11.The Wife is 56 years old. She is still occupying the guestroom in the Colonnade. 12.The Husband is 67 years old. He has been retired since September 2005. The Wife’s case and her open proposal 13.The gist of the Wife’s case is that, even with a generous assessment of the parties’ needs, the family assets available for distribution is more than enough to meet the parties’ needs and accordingly this is a sharing case. Assuming that the parties’ marriage that lasted for 8 years is not a short marriage and this is a classic case that the Husband made the financial contributions and she made non-financial ones, she contends that there should be no departure from equal division of the family assets. That is to say, both the Pacific View and the Colonnade are family assets and should be equally shared between the parties. 14.She proposes that, to achieve clean break, the Husband will pay a lump sum payment of HK$26,600,794.60 to her, upon which she will transfer all of her title and interests of and in the Colonnade to him, on the premises that the Wife and the Husband will share the parties’ assets 40/60 respectively. The Husband’s case and his open proposal 15.The gist of the Husband’s case is that this is a needs case. The Husband agrees with the Wife that there should be a clean break. He contends that in the longer term the Wife will live in Malaysia where the living costs are much lower than those in Hong Kong. He contends that the Wife needs not more than $30,000 per month regardless of whether she will be in Hong Kong or Malaysia, and he proposes to pay her a lump sum of HK$5.57 million by way of 2 instalments while she is keeping her own assets of not less than HK$2,253,475. The Husband suggests that, being aged 67, retired and with his limited income generating ability, he has been running on a negative cash flow since 2005. He intends to make the lump sum payment of HK$5.57 million with the proceeds of the sale of the Pacific View. In the unlikely event that the Court accepts that this is a sharing case instead of a needs case, he proposes the Court to exclude a considerable percentage of the value of the Pacific View and the Colonnade and/ or ring fence some of the assets from the principle of sharing. The Law 16.The jurisdiction of the court in granting financial relief for a party is governed by sections 4, 6 and 6A of the Matrimonial Proceedings and Property Ordinance, Cap 192 (“MPPO”) which provides,
17.Section 7(1) of the Matrimonial Proceedings and Property Ordinance (the “MPPO”), Cap 192, sets out the governing principles in relation to the distribution of assets upon dissolution of the marriage. The Court will have regard to the conduct of the parties and all the circumstances of the case. Section 7 provides as follows,
18.In LKW v DD, (2010) 13 HKCFAR 537, the Court of Final Appeal set out the steps to be taken by the courts in undertaking a section 7 exercise. In brief, they are:
Issues 19.In the present case, the main issues to be considered are likely to include: -
My View Identification of Assets 20.The Wife has interests in 3 properties in Penang, including 25% interest in a house that the Wife purchased with her sisters in 1994, and two apartments that she purchased in her sole name in 2004. There is 1 mortgage presently outstanding on the said apartments. The Wife accepts that her properties in Malaysia should be included in the computation of the assets available for distribution. 21.The great bulk of the parties’ assets comprises of the Pacific View, the Colonnade and the Husband’s stock portfolio. 22.The Pacific View 1,477 sq. ft. in size is a luxurious apartment situated at Tai Tam and was purchased by the Husband for HK$6,480,000 with a staff loan in June 1992. The loan was fully paid in February 1998. He took out a loan for HK$1.5 million on the Pacific View in February 2012. He took out mortgage on the Pacific View for HK$5 million in January 2014. Part of the loan was used to pay off the outstanding of the loan that he took out in February 2012. He obtained mortgage on the Pacific View for HK$10 million in January 2016. HK$4.426 million of the same was used to pay the outstanding of the loan that he took out in January 2014. He invested the balance of HK$5.56 million in stocks and i-bond. At present, he has two investment accounts, totally valued at HK$6,223,857. He obtained the funds for both investment accounts from the re-mortgage of the Pacific View in 2016. 23.The Colonnade 1,805 sq. ft. in size is a luxurious flat situated at Tai Hang and was purchased by the Husband, via his previously dormant company (“Postal Power”) for HK$18,651,000 in May 2000. At the time of purchase, Postal Power was owned by the Husband and his brother with a share each in the company. The Husband paid HK$7,651,000 of the purchase price, and the remaining purchase price was paid with a mortgage loan. His brother transferred his 1 share to the Wife in April 2006. The mortgage loan was fully paid in May 2006. 24.It is the Husband’s case the Pacific View (valued at HK$25,600,000 less outstanding mortgage of HK$9,165,038 = HK$16,434,962) should be excluded from the matrimonial assets for sharing, as it is pre-marital asset which was purchased solely from his resources prior to the marriage and not in contemplation of the marriage. It is also his case that in calculating any final ancillary award to the Wife, the Court should only take into account 48% of the value of the Colonnade (i.e. HK$49,900,000 X 48%) to acknowledge his sole financial contribution in the acquisition of the asset, lack of contribution from the Wife and the shortness of the marriage. The law on non-matrimonial property 25.In LKW v DD Riberio PJ stated that the source of an asset may provide a reason for excluding it from the sharing principle on the basis that it was not an item of matrimonial property.
26.The Court of Appeal in PW v PPTW (CACV 224/2013) (unreported, judgment dated 12 March 2015) stated :
27.The Court went on to state that:
28.In ATV then known as MAM v VNT (CACV 234/2014) (unreported, judgment dated 3 July 2015), the Court of Appeal stated :
29.In WLK v TMC (2013) 13 HKCFAR Riberio PJ stated at [84]:
30.I propose to adopt the approach as expressed by Riberio PJ in WLK v TMC in the above when dealing with the Wife’s claim for ancillary relief. The Colonnade 31.Despite the Husband’s arguments to the contrary, I accept the Wife’s contention that the close proximity in time of the marriage to the purchase and her first visit to the Colonnade supports her assertion that at the material time the Colonnade was intended to be a matrimonial home. I reject the Husband’s allegation that the purchase of the Colonnade in 2000 “was a mere coincidence”, and that he “had an open mind… as to whether [he] would sell it, rent it or live in it” without hesitation. I also take note that the Colonnade is beneficially owned by the parties in equal shares through their respective 50% shareholding in Postal Power. With this in mind I accept that the 100% of the value of Colonnade must be included in the computation of assets available for distribution. The Pacific View 32.It is the Husband’s case that it is unfair if the Wife will have a share from the value of Pacific View that he purchased and fully paid so many years prior to the meeting of the parties. The Wife argues that “source” is not the only determinative factor, and the Court is required to consider other relevant factors such as the question of duration and mingling: see ATV then known as MAM v VNT (at §6.6) in the above. Despite that the Husband remains strongly of the view that the Wife should have no claim against the Pacific View and the fact that the Wife did not make financial contribution to the purchase of the Pacific View might be a reason to depart from the yardstick of equality, in the meantime I regard that prima facie the property must be included in the computation of assets available for distribution. Given the above what is the computation of assets available for distribution? 33.The parties filed a Joint Agreed Schedule of Assets and Liabilities on 17 November 2017 which has now been updated to include the updated values on the two Hong Kong properties as follows :
34.The above-mentioned YKG is a Malaysia company set up by the Wife’s brother in 2010. She has been a company director and shareholder of YKG since 2012. Despite that the Husband previously queried the amount that the Wife claims she has lent to YKG and what has been repaid to her and the disposal by the Wife of her Singapore CPF and Malaysian pension, he now accepts the Wife’s proposed book valuation of YKG and, through legal representatives, he has confirmed that he agrees to the contents of the above updated Joint Agreed Schedule of Assets and Liabilities. 35.The Husband accepts that he has provided financial support to his new girlfriend and his sister’s family in New Zealand since February 2008 but he denies that he supported the Wife and the girlfriend at the same time. Between February 2010 to May 2015, the Husband gave totally about HK$900,000 to HK$1,000,000 to his girlfriend. Between February 2008 to September 2014, he remitted totally HK$828,637 to his sister in New Zealand. The Wife has not asked the Court to add back the sums given by the Husband to his girlfriend and his sister’s family. Through legal representatives, the Wife has also confirmed that she agreed to the contents of the above updated Joint Agreed Schedule of Assets and Liabilities. 36.As per the updated Joint Agreed Schedule of Assets and liabilities, the total net asset is HK$74,835,674. Section 7 considerations The Wife’s income and earning capacity 37.The Wife does not work and has been living off the Husband since their marriage. The Husband contends that the Wife is able to work and to forge an independent life for herself, while the Wife is contesting that she does not presently work and has no income. It is trite that the court will look at a spouse’s ability and qualification to assess his or her earning capacity and will not confine it to current earnings. I take the view that the Wife, aged 56, is fit for work. It is beyond dispute that she had an impressive commercial background. She has no responsibility for caring for a child. I take the view that there is no obvious reason that she should remain a housewife. There is also evidence showing that she has had business connections in London, Paris, Milan, Johannesburg, Penang, Singapore and Hong Kong, that she has/ had investment in a restaurant in Penang, that she has been a company director and shareholder of YKG since 2012, and that despite her denial of having any role in the management of YKG she has received payments of petty cash, salaries and director’s allowance from YKG. The above all suggest that she will be able to return to the workforce within a short period of time. I expect the Wife to work again, even though with the evidence before me I cannot put an accurate figure on her income in the future. 38.I also accept that the Wife can take steps to rent out one of her 2 apartments in Malaysia, which will provide her with a modest rental income, despite that there is no evidence that she currently receives any rental income. The Husband’s income and earning capacity 39.It is not in dispute that the Husband has been retired since September 2005. His last salary was HK$178,000 per month excluding bonus. He used to receive rental income from the Pacific View in the range of HK$50,000 per month until the last lease ended in June 2017, but the Pacific View is now vacant and the Husband has been taking steps to sell it. He earns dividends of about HK$110,000 per year. He is making profits from his stock portfolio. The Husband’s receipt from his stock accounts is HK$608,000 for 2014, HK$492,000 for 2015, HK$268,800 for 2016 and HK$808,200 from January to May 2017. With the unpredictable probability of a stock going up versus that of it going down, again I cannot put an accurate figure on his income in the future. The Wife’s financial needs 40.During the hearing, Scott schedules were helpfully produced summarizing the contentions of the parties. 41.The Wife states that her monthly expenses are HK$70,465. The Husband’s Scott schedule on the Wife’s monthly expenses is as follows:
42.Before embarking on a discussion on the parties’ contentions about the Wife’s expenses, I propose to firstly deal with the following two matters: - (1) the parties’ standard of living during the marriage; and (2) whether the Wife lives/ will live in Malaysia and/or Hong Kong after the divorce. 43.In assessing financial needs, the Court will have regard to the parties’ age, health and standard of living during the marriage. The Wife and the Husband is aged 57 and 67 respectively. It is not seriously disputed that they are not suffering from serious illness. They however take issue on the accustomed standard of living of the parties. The Wife contends that the parties have lived a high standard of living. The Husband’s case is that the standard of living during the marriage was far from being “sensibly high”. It is accepted that the parties lived in an approximately 1,805 sq. ft. spacious upmarket apartment, hired a live-in maid, drove a BMW 5 series vehicle, and they were members of prestigious and renowned private clubs and associations and took several overseas golf and holiday travels every year during the marriage. Given all the above, after having carefully considered, I accept that they lived a comfortable standard of living during the marriage. 44.According to the Wife, she has left Malaysia for 25 years and has no intention of moving back to Malaysia. Her monthly expenses living in Hong Kong are HK$70,465 that is exclusive of her future housing costs in Hong Kong when she moves out of the Colonnade. The Husband takes notice that, after they were separated, the Wife has spent the bulk of the time away from Hong Kong, and he contends that, once these proceedings concludes, the Wife’s ties to Hong Kong will further diminish and she will move back to live in Penang in full time. As part of the Husband’s needs case, he argues that the Wife’s costs of living in Malaysia is lower than those in Hong Kong. On this footing, the Husband seeks to argue that the Wife’s needs are lower than what she states. The Wife asserts that she has not moved back and has no intention of moving back to Malaysia. 45.It is accepted by both parties that the Wife was socially very active in Hong Kong. She was the Chairperson of the Hong Kong Malaysia Association for 7 years. She also involved in church activities, charities, social work and other business in Hong Kong. It is accepted that the Wife has spent a lot of time out of Hong Kong. From 2000, her time in Hong Kong was probably about 300 days per year based on her movement record for 2007. From 2000 to 2005, she always travelled to Malaysia on Chinese New Year and on her deceased mother’s birthday in December to visit her close relatives. Apart from that, she travelled for leisure and for charitable humanitarian work from time to time. As such, she is a person who travel frequently for various reasons but be that as it may I accept that she treated Hong Kong as her place of residence during the marriage. 46.I do not lose sight that the Wife was born in Malaysia and retains her Malaysian passport. She has 11 brothers and sisters in Malaysia and maintains extremely close ties and relationship with them. During the last 15 years, she spent Christmas, New Year and Chinese New Year with her family in Malaysia. During non-festive seasons, she would travel to Malaysia frequently. She owns 25% interest in a house and solely 2 apartments in Penang. She has invested in her cousin’s restaurant and is the director and shareholder of YKG. She keeps her Malaysia home town golf membership. On the contrary, the Wife does not own landed property or any interest in business in Hong Kong, nor does she have any club membership here. It is also worthy of noting that, since the parties were separated in 2008, the Wife’s numbers of days in Hong Kong (see below table) have been remarkably reduced:
47.In June 2014, the Wife’s eldest nephew was diagnosed to have suffered from leukaemia and lymphoma cancers and had to receive chemotherapy treatment. In October 2014, her 5th brother fell sick and was diagnosed to have suffered from acute pulmonary lung disease and needed to go to hospital frequently. His nephew had a bone marrow transplant in January 2015. Her 5th brother passed away in September 2016. During their treatments, she paid them frequent visits to take care of them. She explained that the above is why she travelled to Malaysia frequently between 2014 to 2016. She nonetheless did not afford any explanation as to why she has spent even less time in Hong Kong since the pass away of her 5th brother. 48.Despite that the Wife exerted herself to show that she regards Hong Kong as her home, after having carefully considered, I accept that, after the divorce, her ties with Hong Kong will be dissipated and more likely than not she will live with her family and to take care of her family and business in Malaysia in full time. In Malaysia, she can live in one of her 2 apartments. Items in dispute Mortgage instalments 49.The Wife now accepts that her monthly loan repayment is MYR903 (HK$1,662). Utilities, Management fees 50.When the Wife lives in her apartment in Malaysia, she will have to pay utilities, etc. With the evidence before me, I cannot put an accurate figure on her expenses under this item. I can only approach the matter on a broad brush basis. I propose the sum of HK$2,000 per month. Meals out of home 51.I accept that the Wife is a socially very active woman. She will have plenty meals out of home. I propose the sum of HK$10,000 per month. Transport 52.The difference between the parties under this item is only HK$4,000 - 3,125 = HK$875. I propose the sum of HK$3,500 per month. Clothing/ Shoes 53.The claim is for HK$10,000 per month. On the face of it, I accept that it seems a little on the high side. I prefer the Husband’s figure of HK$4,000 per month. Entertainment/Presents 54.The difference between the parties under this item is only HK$4,000 - 3,000 = HK$1,000. I accept that the Wife probably goes to many social events and that as is customary it is expected that she buys a present and card. I accept her claim of $4,000 per month. Holidays 55.The claim is for HK$14,000 per month. The Husband suggests HK$5,000 per month. The parties took several holiday travels every year but mostly were short haul trips. I propose the sum of HK$7,000 per month. Medical/ Dental 56.The Wife has not provided any receipts to support her claim for HK$4,000 per month. When the Husband was working, his employer provided medical benefits to the parties. The Wife does not have medical insurance. I accept that she needs provisions for medical/ dental expenses. I propose the sum of HK$2,000 per month. Insurance premia 57.The premium of the Wife’s 3 policies in Singapore is SGD1,671.25, 2,862.5 and 1,105.5 per year respectively, and the premium of 2 policies in Malaysia is MYR3,469.96 and 3,859.82 per year respectively. According to the Husband’s calculation, the total payment is only HK$3,404 per month. The Wife’s claim is for HK$6,409. She explained that she took into account her travel insurance, golf insurance, etc. for her claim. Taking an overview, I propose HK$4,500 per month. Dependent family members 58.The Wife pays two of her sisters and her god daughter MYR1,000, MYR1,000 and HK$1,000 per month. Such payments are voluntary in nature and are made out of her love and concern for them, which may not be necessarily shared by the Husband. I shall disregard the said payments for the purpose of the Wife’s claim for ancillary relief. 59.Accordingly, I find that the Wife’s monthly expenses are HK$43,662. 60.Despite that I have found in the above that the Wife has the ability to work, I cannot make any credible estimate as to how much she will earn in the future. The Court of Final Appeal has stated in LKW v DD at 564 to 565 that the parties’ needs should be generously interpreted. So, I shall ignore her future income in my assessment of her needs. No Duxbury calculation is made available. Doing a simple calculation, taking that the Wife will live to about 90 years old, I assume that she needs HK$43,662 X 12 X (90 – 56) = HK$17,814,096 in the future. The Husband’s financial needs 61.The gist of the Wife’s contentions on the stated expenses have been set out in the Wife’s Scott Schedule of the Husband’s monthly expenses as follows:
Items in dispute Mortgage 62.In view of that the Husband has placed the Pacific View on the market for sale since the last lease ended in June 2017, I shall disregard the monthly mortgage repayment of HK$68,550 for the calculation of his future expenses. Utilities 63.With the evidence before me, I cannot put an accurate figure on his expenses under this item and I can only approach the matter on a broad brush basis. I propose the sum of HK$3,500 per month. Household expenses 64.The difference between the parties under this item is only HK$4,000 - 3,000 = HK$1,000. I propose the sum of HK$3,500 per month. Car expenses 65.The Husband was always driving. He has provided the particulars of his expenses. I accept his figure of HK$10,000 per month. Insurance premium 66.The claim is for HK$1,000 per month, but the documentary evidence shows that the premium of the Husband’s 1 life policy is only HK$201.25 per month. I accept the sum of HK$201.25 per month. Domestic helper 67.I accept that the Husband may take into account the liability for long term service payment. I accept his figure of HK$6,000 per month. Entertainment/Presents 68.The difference between the parties under this item is HK$3,000 - 1,000 = HK$2,000. I have allowed HK$4,000 per month under the same item to the Wife. I accept the Husband’s claim for $3,000 per month. Medical/ Dental 69.The Husband has not provided any receipts to support his claim for HK$6,000 per month. I have allowed HK$2,000 per month under the same item to the Wife. I propose the same amount of HK$2,000 per month. Dependent family members 70.For the same reason that I have stated in the above paragraph 58, I shall disregard the Husband’s payments under this item for the present purpose. Bank instalment loan 71.The said bank instalment loan has already been fully paid in September 2017. 72.Given my view that the Husband might be going to sell the Pacific View as well as the Colonnade (see paragraph 87 below), I shall take away the Husband’s stated monthly expenses of management fees of HK$15,450 and real estate tax and government rent of HK$7,838 from his future monthly expenses, despite that as current expenses they are accepted by the Wife. At the same time, I shall add the Husband’s future housing costs into his monthly expenses. With the evidence before me, I cannot put an accurate figure on this item and I can only approach the matter on a broad brush basis. I propose the sum of HK$30,000 per month. 73.Accordingly, I find that the Husband’s monthly expenses are HK$73,201.25. 74.The Husband is making profits from his stock portfolio. Yet he may experience losses. Coupling with my treatment to the Wife’s future income in the assessment of her needs, I consider that it is not unfair to disregard the profits and losses that he may make with his stock portfolio altogether for the present purpose. Doing a simple calculation, taking that he earns dividends of about HK$10,000 per month, and that he will live to about 90 years old, I assume that he needs HK$(73,201.25 – $10,000) X 12 X (90 – 67) = HK$17,443,545 in the future. The sharing principle and departure from equal division 75.I take notice that the assets available to distribution is enough to meet the parties’ respective needs. With that said I agree with the Wife that it would be appropriate to approach this case on the sharing principle. The next step will be for the court to apply the sharing principle to the parties’ total assets, with a yardstick of equal division as part of that principle. This means that the total assets should be divided equally between the parties unless there is good reason for departing from an equal division. 76.The Wife proposes that she receives a lump sum payment of HK$26,600,794.60, while she is keeping her assets. This represents a 40% share of the assets available for distribution. The Husband proposes to pay a lump sum payment of HK$5.75 million to the Wife, while she is keeping her assets. The Husband’s offer represents a 10.69% share of the assets available for distribution. 77.About the question of whether there are good reasons exist for departing from equal division, applying the principle laid down by LKW v DD, the answer is to be found in the terms of section 7(1) and the implicit objective of a fair distribution of the assets. Standard of living enjoyed by the family before the breakdown of the marriage 78.I have accepted in the above that the parties lived a comfortable standard of living during the marriage. The age of each party and the duration of the marriage 79.The Wife is now 56 years old and the Husband is about 10 years older. I accept that the period after the parties were separated should not be counted towards the duration of the marriage. The parties were married for 8 years and they have been separated for approximately 9 years. This is a medium length marriage of some 8 years. There are no children of the family. Physical or mental disability of either of the parties 80.This is not in issue. Contributions to the welfare of the family 81.I reject the Husband’s contention that the Wife has only negligible contributions both financially and otherwise to the welfare of the family for the following reasons. The Wife worked for at least half the time of the marriage. It is accepted that she spent a lot of time with her family in Malaysia and she was socially very active. As busy as she was, there is credible evidence showing that time was set aside to look after the Husband such as she cooked for him, that she worked at the household duties as for example during the period from July to December 2000 when the parties were living in Tai Tam and they did not have live-in domestic helper she took care of the housework with the help of a part-time cleaner, and to befriend with the Husband’s family. The instance of the Wife’s discovery of the Husband’s tumour is another fine example showing that she was caring for him. I agree with the Wife the fact that she went through two failed attempts of IVF demonstrates her role as home maker in the marriage. While the IVFs were the Wife’s idea, the Husband was going along with it and he regretted that they were not successful. I believe that it was the parties’ common wish to have child. The first 30 IVF injections started in or about October 2004. In early 2005, she was pregnant but this was miscarried after 8 weeks. She tried for a second time from October to December 2005 with 30 more IVF injections. On the other hand, the Husband made valuable financial contribution to the family. Broadly speaking, financial and non-financial contributions should not receive different treatment. For the avoidance of doubt I accept that each party has made valid contribution to the welfare of the family. I do not accept that either party has made a greater contribution than the other. The value to either of the parties to the marriage of any benefit which, by reason of the dissolution or annulment of the marriage, that party will lose the chance of acquiring 82.The Wife seeks to put up compensation as a material factor. The Wife was running a travel business in Singapore when the parties were married in 2000. After the marriage, she continued carrying on with her business until 2002. Following the close of her business in Singapore in 2002, the Husband funded the setting up of her travel business in Hong Kong. The Hong Kong business was closed down two years later because of the SARS epidemic and the unfortunate event that one partner committed suicide. In 2005, she invested in her cousin’s restaurant in Penang. She briefly worked for 6 months between late 2006 and early 2007 in Hong Kong. In November 2006, when the Wife was working, having learnt about a job opportunity through a head-hunter that he personally knew, the Husband voluntarily ventured to provide her resume to the head-hunter. In about November 2007, she was the executive producer of a digital audio-visual production company. All the above suggest that the Husband has been very supportive to her career ambition. As such, I do not accept that her marriage to the Husband has thwarted her career ambition. I reject as having no foundation at all the Wife’s suggestion that she has suffered relationship-generated disadvantage. How should the assets be divided bearing in mind the principles identified in the Court of Final Appeal’s decision in LKW v DD? 83.The Husband is currently 67 years old and the Wife is currently 56 years old. The Husband was born and raised in Hong Kong. I have indicated that the Wife needs HK$17,814,096 and the Husband needs HK$17,443,545 in the future. I take notice that the future financial needs of the parties are roughly in the same ballpark. 84.The Wife disagreed that the Husband paid HK$2,842,890 to her since the parties’ separation in the past. She now sensibly accepts that H paid the said sum of HK$2,842,890 to her between July 2008 to December 2014. The Husband previously maintained that the said sum of HK$2,842,890 should be taken into account by the Court in making any final Order. He is now prepared to not pursue this claim but requests that the Court acknowledges that he has made these payments to her. It is not in dispute that he did not pay any maintenance to the Wife after December 2014. 85.As per the updated Joint Agreed Schedule of Assets and liabilities, the total net asset is HK$74,835,674. The Pacific View (valued at HK$25,600,000 less outstanding mortgage of HK$9,165,038 = HK$16,434,962), the Colonnade (valued at HK$49,900,000) and the Husband’s stock portfolio and bonds (valued at HK$5,167,982 and HK$1,055,875 respectively), together valued at approximately HK$72.5 million, make up the great bulk of the parties’ total net assets. 86.I have accepted the Wife’s contention that the Colonnade was at all material times intended to be a matrimonial home. The Wife puts much stress on that the matrimonial home takes a central place in the marriage and has a particular identity in ancillary relief proceedings so much so that the guiding principle being the entitlement of each party to a share of the matrimonial property is the same however long or short the marriage may have been. She requests a 50% share of the 100% value of the Colonnade. In this respect, the following passage in LKW v DD at [98] per Riberio PJ is on point:
87.On the opposite position, the Husband contends that the above guiding principle should not be an absolute one. The Husband suggests that in calculating any final ancillary award to the Wife, the Court should only take into account 48% of the value of the Colonnade to acknowledge his sole financial contribution in the acquisition of the asset, lack of contribution from the Wife and the shortness of the marriage. I accept that the guiding principle stated on behalf of the Wife in the above cannot usurp the broad discretion of the Court under s.7(1) of the MPPO. In the present case, I take notice that this is not a short marriage and I have found that each party has made valid contribution to the welfare of the family. Having largely dealt with the section 7(1) considerations when discussing the different issues as set out above, I have no doubt that the parties should have an equal share of the Colonnade. In the premises, I propose that the Colonnade should be sold and the net proceeds of sale be equally divided between the parties. 88.The Husband vigorously protests that it will be extremely unfair if the Wife has any share from the value of Pacific View that he purchased and fully paid so many years prior to the meeting of the parties. The Wife argues that “source” is not the only determinative factor, and the Court is required to consider other relevant factors such as the question of duration and mixing. This is a marriage of some 8 years. I regard it neither a long or short marriage. It is of medium length. During the course of the marriage, the parties mostly kept their assets separate. Despite that during the marriage the Pacific View was rented out and provided the Husband with a source of income that was used by him for the family budget, I regard that there was no mixing or intermingling with the Pacific View and matrimonial activities in circumstances in which it may be said that the Husband must have accepted that the Pacific View should not be excluded from sharing. I take notice that the Husband was significantly wealthier than the Wife. So long as needs are already addressed, I accept that in the present case the fact that the Husband purchased and fully paid the Pacific View so many years prior to the meeting of the parties should be taken into account as a reason for departure. In the circumstances, I accept it is fair and reasonable that the Husband should retain 100% value of the Pacific View as well as his stock portfolio and bonds that was sourced from the re-mortgage of the Pacific View in 2016. 89.Weighing the various factors and striking the balance of fairness, I regard that the Wife should retain her 25% interest in the house in Penang (valued at HK$299,000) that was purchased and paid by her well before the marriage. 90.I have dealt with the parties’ joint property, i.e. the Colonnade, the Wife’s pre-marital property, i.e. her 25% interest in the house, and the Husband’s pre-marital property, i.e. the Pacific View, his stock portfolio and bonds. The Wife still holds net assets to the value of HK$2,253,475 – 229,000 = HK$2,024,474 and the Husband holds HK$22,682,199 – (16,434,962 + 5,167,982 + 1,055,875) = HK$23,380. Largely, they are family assets that were accrued during the marriage. I propose that the parties should have an equal share of them. In broad terms I propose that the Wife shall pay HK$1 million to the Husband. 91.The end result is that the Wife will have about HK$2,253,475 + 23,950,000 = HK$26,203,475 and the Husband will have about HK$16,434,962 + 5,167,982 + 1,055,875 + 24,950,000 + 1,000,000 = HK$48,632,199. The above represents that the Wife and the Husband will have 35/65 share of the total net assets respectively. 92.With the said sums at their disposal, presumably the parties might consider investing in low risk fixed-income investments in the capital market that yield a regular income. With the evidence before me, however, I cannot put any figure on the returns that they may offer. 93.It appears to be common ground that this matter should be dealt with on a clean break basis and this is clearly the sensible way to proceed, especially as there are no children of the marriage. Sometimes the assets of the parties do not allow for a clean break solution, but such was not the case here. The Disposal 94.In conclusion, it is ordered that :
Costs 95.On the whole, the Wife is the successful party. It is ordered nisi that the Husband shall pay the Wife’s costs of the ancillary relief proceedings, including reserved costs with certificate for counsel, to be taxed, if not agreed. The order nisi becomes absolute 14 days after the order is made unless a party has applied to the court for varying the order. 96.It is also ordered that there be declaration that there are no children of the family to whom the section 18 applies. 97.I am most grateful for Counsel’s assistance.
Mr Jeffrey Li instructed by Chong & Yen, Solicitors for the petitioner wife Ms Sasha Allison instructed by Oldham, Li & Nie, Solicitors for the respondent husband | ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
Cases cited in this judgment