Yky v. Wsm
Read the full judgment text of FCMC 9167/2017 on BabelCite. This Family Court judgment was delivered on 7 December 2018 before Deputy District Judge Doris To.
Divorce proceedings – Decree absolute – Application by Respondent for leave to make decree nisi absolute – Core issue whether Petitioner can establish real financial prejudice if decree absolute is granted – Maintenance pending suit – Ancillary relief proceedings – Inheritance (Provision for Family & Dependents) Ordinance – Risk of death of Respondent before conclusion of ancillary relief proceedings – Court finds real financial prejudice due to Respondent’s conduct, age, and refusal of undertakings – Decree nisi absolute refused – Costs follow event
Legal issues: Deprivation of W’s right to apply for MPS · Stifling W’s claim for ancillary relief and the right to challenge ownership · H losing incentive to proceed expeditiously and risk of death
Outcome: Respondent’s Summons dismissed; Decree nisi absolute refused.
Cited by 1 case · Cites 4 cases
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FCMC 9167/2017 [2018] HKFC 224 IN THE DISTRICT COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION MISCELLANEOUS PROCEEDINGS NO. 9167 OF 2017 -----------------
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---------------------------- Decision ---------------------------- 1.This is the hearing of the Respondent/Husband (“H”)’s application by Summons dated 21 March 2018 pursuant to section 17(2)(a) of the Matrimonial Causes Ordinance (Cap. 179) (“MCO”)for leave to have the decree nisi granted in favour of the Petitioner/Wife (“W”) on 8 November 2017 be made absolute. Core Issue & Relevant Law 2.As a starting point, H emphasized that unless with good reasons, the decree should be made absolute within a reasonable time without delay. He referred to the public policy consideration for exercising the judicial discretion to grant a divorce, discussed by Viscount Simon LC in Blunt v Blunt [1943] AC 517 at 525:-
3.The said public policy consideration is considered in Manchanda v Manchanda [1995] 2 FLR 590 where Thorpe LJ observed that “the public policy of ensuring a marriage that has been irretrievably broken down be put to an end without further ado must be subject to an equally important public policy of ensuring the spouse who opposes the making of a nisi absolute, must not be prejudiced in terms of financial provisions by way of ancillary relief.” 4.In light of the above policy consideration and the instructive authority of JAH v VH (Decree Absolute) [2013] HKFLR 664, parties have agreed that for the purpose of this hearing, the core issue is whether W can establish real financial prejudice in that there will be a real risk that she will be deprived of her financial entitlement if the decree absolute is granted. In other words, to resist H’s application, W is not required to establish special or exceptional circumstances. 5.By Wickler v Wickler [1998] 2 FLR 326, I shall consider the following questions in exercising my discretion: -
Relevant Factual Background 6.H (currently 79 years old) and W (currently 81 years old) married in Hong Kong in May 1967. This is indisputably a very long marriage of around 50 years. 7.There were 3 daughters born in the wedlock. They are now respectively aged 50, 44 and 41; all are married and independent. 8.In about 1978, H started the business of manufacturing electric fans (“the Business”).The Business thrived and substantial wealth was accumulated therefrom. 9.In 1984, the entire family emigrated to Canada. The parties acquired a large number of properties in Canada using the substantial profits generated from the Business. W stayed in Canada to raise the daughters and to take care of the properties in Canada; H travelled to and from Hong Kong to look after the Business. 10.In about 1994, H started an extra-marital affair with a Thai female who gave birth to a son for H in August 2001(“the Mistress”). 11.In 1996, H purchased a property in Hong Kong which is currently held in the sole name of the Mistress (“Property 1”). H also purchased 7 other Hong Kong properties respectively in 2007, 2010 and 2014 (“Properties 2-7”) which were held by H and the Mistress as joint tenants until they become tenants in common in equal shares pursuant to the Notices of Severance executed on 5 June 2015. 12.On 30 June 2015 (shortly after execution of the said Notices of Severance), H petitioned for divorce under FCMC 8306/2015 based on two-year separation since June 2004 (subsequently amended to December 1993). The Petition was dismissed after trial by HH Judge C.K. Chan on 10 July 2017. 13.On 17 July 2017, W filed a divorce petition based on two-year separation since July 2015. The Petition was undefended. On 8 November 2017, a decree nisi was pronounced in W’s favour. 14.According to W’s Form E filed on 22 September 2017, she had assets of net value of no less than HK$43 million; H had assets of net value of no less than HK$565 million as disclosed in his Form E filed on 4 January 2018. 15.W’s claim for ancillary relief is on-going (“the AR proceedings”). The ownership of Property 1 and Properties 2-7 is currently the subject matter of a preliminary issue trial fixed to be heard in July 2019 (“the TL v ML proceedings”). W’s Objections 16.W asserted that if decree absolute is granted before the conclusion of AR proceedings, she would suffer the following financial prejudice:-
Discussion & Analysis Deprivation of W’sright to apply for MPS 17.It is not in dispute that W will be disentitled from applying for MPS under section 3 of the Matrimonial Proceedings and Property Ordinance (Cap. 192) once the decree absolute is granted. However, H argued that in light of the level of W’s liquid assets (over HK$14 million is in the form of cash deposited in banks), there is no question of any immediate needs for recurring costs of living on the part of W. Hence it is unlikely W would be able to establish any entitlement for MPS. H relied on the following authorities. 18.In HJFG v. KCY [2012] 1 HKLRD 95, Hartmann JA stated: -
19.Further, as opined by Mr Justice Coleridge in Moore v. Moore [2010] 1 FLR 1413 at §22 :-
20.W relied on CWK v YCHS & Anor FCMC 6082/2014 (unrep) (10 December 2015). In that case, the petitioner wife who applied for MPS had a total capital sum of around HK$14 million. When the same aforesaid argument of H was raised by the 1st respondent husband, it was rejected by the Court. 21.In that case, DDJ G Own (as he then was) observed at §39 that since there was no urgent and immediate need of cash for the wife nor was there any shortage of cash for the husband, the focus would fall upon whether it is “reasonable” for granting MPS, rather than the wife’s immediate needs for it or the husband’s ability to pay for it. 22.After considering the fact that there was a long established pattern of payment to the wife by the husband, which ceased in the month following his departure from the wife and the wife’s commencement of the divorce proceedings, the Court stated at §48:-
23.The Court therefore awarded the wife MPS. It was held that in all fairness, which is the guiding principle on MPS applications, the wife should be entitled to the same ‘established pattern of payment’. 24.In the present case, there is also an established pattern of payment by H for W’s maintenance. Although the ruling in the CWK case may give W the legal basis to pursue an application for MPS, the issue in the present context is not on merits of an intended application; it’s about deprivation of the right to do so. 25.The fact before me is that W ever since the petition(s) has not made any application for MPS, not even after H unilaterally and unreasonably stopped paying for her maintenance in around July 2017, as W complained about. There is no explanation why she has not done so. 26.Without evidence pointing to the contrary, W’s inaction only shows that she is not keen or serious about making such application, or she has not even intended to do so at all. While W could have exercised such right but elected not to, I do not think it is fair or reasonable for her to allege prejudice of being deprived of such right by the grant of a decree absolute. Stifling W’s claim for ancillary relief and the right to challenge the ownership of Property 1 and Properties 2-7 27.Since W cannot continue with her claim for ancillary relief if H dies before the conclusion of the AR proceedings, W therefore submitted that whether a decree absolute is granted by then would be determinative on her status to claim as a wife or an ex-wife. 28.There is no evidence on whether H has made any Will, and if yes, whether there is any provision in favour of W. Hence, in the scenario that H dies intestate, W said she would be prejudiced if the decree absolute is granted, because her only claim will be a dependent’s claim under the Inheritance (Provision for Family & Dependents) Ordinance (Cap.481) (“I(PED)O”). 29.W regards it crucial to remain as a spouse (without a decree absolute) because the position of a former spouse is less advantageous than that of a spouse due to the different applicable definitions of “reasonable financial provision” under the I(PED)O. 30.H disagreed and argued that it is totally incorrect that if the decree has been made absolute, W could not claim as a “wife” for financial provision under I(PFD)O. H relied on H v H, FCMC 1802/1999 (unrep) (1 March 2010)and Miller-Smith v. Miller-Smith (No. 2), [2009] EWHC 3623 (Fam), and raised the point that W may claim under section 16(1) of the I(PED)O. The Court would consider her dependent’s claim with the same “divorce standard” as if the decree has not been made absolute. 31.Section 16(1) of I(PFD)O provides,
32.In H v H, the petitioner wife alleged that if decree absolute is made before concluding the ancillary proceedings, she would lose the “wife” status and thereby suffer material prejudice, including inter alia (i) her claim as an “ex-wife” under I(PFD)O would be less advantageous than that as a “wife” and (ii) she would be a stranger to the estate if H dies intestate. The court found section 16(1) of I(PFD)O as a complete reply to the alleged prejudice (i), and stated the following: -
33.H also referred to section 5(2) of I(PFD)O which provides that the court shall also have regard to the provision which an applicant wife might reasonably have expected to receive if on the day on which the deceased died the marriage had been terminated by a decree of divorce. 34.While the authorities should not be disputable, W invited the Court to note that the power under section 16 of the I(PED)O to treat W’s application as if the decree has not been made absolute is merely discretionary; the Court will exercise such power only it considers it just to do so. However, for the time being, there appears to be no reasons or unjust factors that W would be excluded. 35.In light of the clear legal propositions, I agree with H that the grant of the decree absolute will make no material difference to W’s rights under I(PFD)O. 36.Having said these, it is noteworthy that there is one crucial factor which distinguishes the present case from H v H. The court in H v H was not faced with any consideration relating to TL v ML proceedings within the matrimonial proceedings. 37.In this regard, W submitted that there is no provision under the I(PED)O to enable W to commence any application equivalent to her current TL v ML proceedings. Hence, if H passes away, 100% of Property 1 and 50% of Properties 2-7 would remain in the name of the Mistress. In such an event and if the decree absolute is granted prior to H’s death, only the estate of H can litigate on the beneficial ownership of Property 1 and Properties 2-7; W will no longer be able to continue the TL v ML proceedings or commence new proceedings in relation to such interest in her personal capacity. 38.H submitted that the Court in considering a claim under the I(PFD)O, can also determine beneficial ownership in disputes in order to ascertain the size of the estate, akin to conducting a TL v ML trial under matrimonial proceedings to determine the size of the matrimonial pot. In advancing this argument, H concedes that there are so far no authorities in support. 39.I reject H’s argument. The I(PFD)O is legislated to empower the court to make orders for the making out of the estate of a deceased person of provision for person entitled under the Ordinance. There is no provision under the I(PED)O to enable the court to determine disputes concerning the size of the estate. Although section 4(4)(a) of the I(PED)O provides that the court can order any person holding property being part of the net estate to transfer, I do not think such power extends to investigating and determining whether someone is holding a property on trust for the deceased which forms part of the estate. 40.Further, when the deceased can no longer testify on how the property went into the hand of a third party, no investigation can be fairly conducted or any determination properly reached. 41.Therefore, although W’s rights are not prejudiced in having her dependent’s claim considered with the same“divorce standard” as if the decree has not been made absolute, the loss of opportunity to continue the TL v ML proceedings would prejudice her entitlement to a fair award. W is at risk of receiving a significantly reduced amount under the I(PED)(O) as compared to her entitlement in the AR proceedings. 42.Despite the above discussion and analysis, seeing the actual state of affairs, W’s interest or difficulty ahead of her in fact depends on the demise of H, not on whether the decree nisi is made absolute. As long as H survives conclusion of the AR proceedings, the aforesaid prejudice is irrelevant. That is to say, if H dies before conclusion of the AR proceedings, irrespective of whether the decree is made absolute, W’s claim for ancillary relief and the right to continue the TL v ML proceedings would still cease. 43.Therefore, I find that W failed to establish how her claim for ancillary relief and the right to challenge the ownership of Property 1 and Properties 2-7 are stifled by the grant of a decree absolute. H will delay and/or lose the incentive to proceed expeditiously the matrimonial proceedings once the decree is made absolute, hence putting W at real risk that H would die before the conclusion of the AR proceedings 44.W said due to H’s uncooperative and evasive attitude in the proceedings, and the tactical steps taken by H to deprive W of her fair share of the family assets, once the decree is made absolute, H would further delay or stall the AR proceedings, or lose the incentive to proceed expeditiously the matrimonial proceedings. 45.W’s complaints include, inter alia the following:-
46.Although H has refused to go by W’s proposals in terms of how proceedings should be better conducted, I do not think there are sufficient grounds to find that H has been feet-dragging and stalling the proceedings. However, there are cogent evidence of H taking steps to deprive W of her financial benefits and her fair share of the family assets as described in paragraphs 45(a), (b) and (f) above. 47.Further, it is noteworthy that, in some of the authorities that H relied upon, the husbands in those cases were willing to undertake to ensure the wives receive financial benefits even after their death:-
48.Shortly after H took out this Summons, W’s solicitors on 28 March 2018 wrote to H asking him to give an undertaking not to deal with his real properties, shares in his companies and stocks until the conclusion of the ancillary relief proceedings. H refused. 49.H has made no offer to give any undertaking to back up his application until the following are offered on the day of hearing. Considering the scope of protection, I well understand why W regarded them wholly inadequate and unacceptable:-
50.In my assessment of risk of prejudice, what is likely to happen after the decree absolute is granted must be considered against the past pattern of H seeking to cut W off financially, as well as H’s elderly age and poor health condition; even H himself is of the same concern that he might pass away at any occasion. Taking all these into consideration, I find it apparent that H would lose the incentive to proceed expeditiously with the AR proceedings, such delay would put W at real risk that H would die before the conclusion of the AR proceedings. Exercise of Discretion 51.Therefore, among the three objections raised by W as set out in paragraph 16 above, she succeeded on (c). W has established real financial prejudice in that there will be a real risk that she will be deprived of her financial entitlement if the decree absolute is granted. 52.The next question is what would be the prejudice done to H if the decree is not made absolute. The only reason given by H in support of his application is that he wishes the dissolution of the parties’ marriage to be completed before he dies. H is of concern that he might pass away at any occasion and lose the chance of a formal dissolution of the marriage. 53.The third question is whether the prejudice to W outweighs the prejudice to H. I shall not comment on H’s personal desire; he may feel aggrieved, resentful or prejudiced at risk of remaining as W’s spouse at the departure of his life. However, weighing of prejudice is a matter for the Court. 54.While there is a need of fair opportunity for W to exit the parties’ marriage of 50 years with a proper entitlement to the family assets, I find that W’s prejudice clearly outweighs H’s personal desire to have the parties’ marriage formally dissolved before his death. 55.In the exercise of my discretion, I refuse to make the decree nisi absolute. Conclusion 56.The Respondent’s Summons is dismissed. 57.Costs shall follow event. I make a costs order nisi that H do pay forthwith W’s costs of the application, with certificate for one counsel, to be summarily assessed if not agreed. Unless there is an application within 14 days to vary, the nisi order shall become absolute. Directions 58.It is directed that failing agreement on costs, W do lodge with the Court and serve on H her Statement of Costs for summary assessment within 7 days after the nisi order has become absolute. H’s comment on the Statement of Costs (if any) shall be submitted within 7 days thereafter. No further submission shall be lodged without leave. Dated this 7th day of December 2018.
Mr Selwyn Yu S.C.leading Mr Eugene Yim and Ms Fiona Chong, instructed by Messrs Alvin Cheng & Rosaline Choy for the Petitioner/Wife Mr Robert Pang S.C. leading Mr Ernest Koo and Mr Stony Chan, instructed by Messrs Yuen & Partners for the Respondent/Husband |
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