R, V v. A, A also known as Aa
Read the full judgment text of FCMC 7978/2017 on BabelCite. This Family Court judgment was delivered on 25 January 2019 before Her Honour Judge Sharon D. Melloy.
Matrimonial Causes – maintenance pending suit – interim maintenance – reasonableness – standard of living – Matrimonial Proceedings and Property Ordinance Cap 192 – District Court – Petitioner wife seeks maintenance for herself and two children – Respondent husband claims inability to pay due to lack of earned income – Court applies broad-brush approach to assess reasonableness and ability to pay – Court orders husband to pay maintenance pending suit HK$25,750 per month and interim maintenance for children HK$37,250 per child per month – Costs ordered on party and party basis
Legal issues: Quantum of interim maintenance
Outcome: Maintenance pending suit and interim maintenance granted
Cites 1 case
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FCMC 7978 / 2017 [2019] HKFC 25 IN THE DISTRICT COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION MATRIMONIAL CAUSES NUMBER 7978 OF 2017 ----------------------------
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------------------------------------------------------------ J U D G M E N T (Maintenance pending suit/Interim maintenance) ------------------------------------------------------------ Introduction 1.This is an application by a Petitioner wife for maintenance pending suit for herself pursuant to section 3 Matrimonial Proceedings and Property Ordinance Cap 192 (MPPO) and interim maintenance for two children of the family, two girls now aged nearly 13 and 6 years of age, pursuant to section 5 of the same ordinance. The main issues 2.In broad terms there is only one issue to be determined namely how much maintenance should the husband pay to the wife for herself and the children on an interim basis. 3.The wife seeks an order in the sum of HK$217,000 per month plus a continuation of payments by the husband of the children’s school fees, their school bus fees, insurances and the monthly bill at the X Club (X). In addition, the husband is currently responsible for payment of any expenses attributable to joint investments including a property in Singapore and other properties in India. The wife does not seek any order with respect to litigation funding at this stage, but she wishes to reserve her position in that respect. It is the wife’s case that she will continue to fund her own litigation costs for the time being from her own resources and that she will also be responsible for her own personal expenses from her income/financial resources. 4.It is of note that the parties have been unable to agree final arrangements in relation to the children and that a trial is scheduled in that respect in March. The parties currently have joint custody of the children. In addition, by virtue of a court order dated the 31 May 2018, the wife/mother has interim care and control of them, with interim defined access to the husband/father, who has the care of the girls on alternate weekends from Friday after school until 7:00 pm on Sunday. In addition, he has staying access on each Wednesday, from after school until the following Thursday morning and access on Monday after school until 6:45 pm on alternate weeks, when the children are not with him over the weekend. The father is seeking an order for shared care on a more or less equal basis. This is resisted by the mother. 5.The husband is currently paying the wife HK$50,000 per month (although he has historically also deducted the costs for one of the domestic helpers from this sum) plus he continues to pay for the girl’s school fees, their school bus fees, for insurances and for the monthly costs at the X. 6.Prior to the hearing the husband put forward the following open proposal to the wife:
This proposal was not accepted by the wife. It is trite but worth repeating, that the court has no ability to make an order for interim lump sums or interim orders for sale. Background 7.The parties married on the XX March 1999 and separated in or about December 2014, but continued to reside under the same roof. The wife is 43 and the husband is 45 years of age. They are both of Indian descent and they are both very well educated. The husband was previously employed as an investment banker and the wife has held a number of positions and is currently employed in a part time capacity in the executive search space. The wife issued a divorce petition on the 22 June 2017. The decree nisi has yet to be pronounced. 8.It is the husband’s case that, although originally in paid employment, that he made a conscious decision to leave banking in order to be able to spend more time with the children. It is his position that he was a full time care taking parent. This is strenuously denied by the wife. She says that although she has worked from time to time in either a full time or part time capacity, that she was essentially a “trailing spouse”, that it was the husband who was always financially responsible for the family and that she was primarily responsible for the children. She says that there’s was a “traditional” marriage in all respects. 9.In any event it seems reasonably clear that the husband is no longer receiving any remuneration from his previous employment, deferred payments having allegedly ceased in March 2017, and that all income is now derived from investments. It is the husband’s case that although he was able to maintain the family whilst the parties were living together, and the wife was working, that it is not possible for him to maintain two households at the level requested by the wife. 10.This in turn is not accepted by the wife, who accuses the husband of material non-disclosure. She also points out that the husband told the Social Welfare Officer that he had an income of between HK$3 – 5 million per annum. She says that he has the financial resources available to pay what she seeks. The law Maintenance pending suit and interim maintenance 11.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. Applications for interim maintenance under section 5 of the same ordinance are approached in the same way. As Rayden points out
12.Further
13.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 try to 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. 14.Although I was not specifically referred to the following authority by either side it seems to me that the following section from Jackson’s Matrimonial Finance 9th edition (paragraph 3.92) may also be of some assistance:
In this instance it is clear that the husband has borrowed from third parties. Further the parties have enjoyed a good standard of living that increased in line with the father’s income during the course of the marriage. 15.Reference has also been made by each side to the Court of Appeal decision in HJFG v KCY [2012] 1 HKLRD 95 where it was held inter alia that:
In this case it is clear that the parties enjoyed a high standard of living, consistent with an ex patriate lifestyle and their incomes and other financial resources, prior to the breakdown of the marriage. What are the wife’s reasonable needs? 16.The wife’s most updated schedule, which provides her most recent estimates of expenditure and also comments on the husband’s stated expenses, can be found in exhibit RV 3 – 3 attached to her 3rd affirmation dated the 27 August 2018. With respect to her general expenses, she states as follows:
17.In addition, she says that she has personal expenses of just over HK$56,000 per month, which she proposes to settle herself. These are as follows:
18.Finally she says that the children’s expenses amount to just under a further HK$53,000 per month as set out below:
Discussion 19.I should say at the outset that although in some cases it may be appropriate to split the costs for children on a 50:50 basis, that is generally where the parties are earning a similar amount, or they have similar financial resources otherwise. In this instance the wife seriously challenges the position taken by the husband. She simply does not accept what he says about his own financial situation, which in essence she says “beggar’s belief”. In contrast her own financial position is quite straight forward. She is currently earning HK$57,000 per month and she has some liquid assets at her disposal of approximately HK$4.4 million. In contrast the husband is said to currently have no earned income and his investments are also said to be longer term in nature. In such circumstances it is hard to see how the husband would have been able to sustain the parties and the children of the family, even if the family had remained intact. 20.I should add that given that both parties have a significant earning capacity, and in the event that the husband’s case is to be believed, that there will then likely be no alternative longer term but for both parties to do whatever is necessary to maximize their own earning capacity. 21.In the shorter term I am approaching this case on the premise that the wife shall be responsible not only for her own direct expenses, but also for a share of the general expenses and for some of the children’s expenses. In so far as the husband is concerned, I will expect him to pay for a share of the wife’s general expenses, the children’s share of the general expenses and for the children’s direct expenses save for the wife’s estimate for entertainment, presents and holiday expenses for when the children are in her care. General expenses 22.In so far as the wife’s general expenses are concerned, it is of note that they are also generally less than the husband’s schedule of general expenses (which appears to be a pre separation schedule in any event). However, it seems to me that both sides should be able to reduce some of these expenses, now that there are two households to run. In particular, both parties’ estimates for food seem very high. On a broad brush basis, I will allow each household HK$10,000 per month in that respect. I will also reduce the wife’s household expenses to HK$5,000 per month. I do not accept the suggestion that many of these expenses are recurrent expenses. Both parties shall also employ one domestic helper and I will allow HK$6,000 per month in that regard. The wife’s utility expenses are also likely to reduce now that she is living in a smaller flat. I will allow a further HK$5,000 per month for those expenses. In total then I accept that the wife has general expenses in the region of HK$103,000 per month as follows:
23.Half of this sum, rounded down, will be attributable to the children at HK$51,500 per month. The husband shall be responsible for this sum. In addition, the husband shall be responsible for 50% of the wife’s general expenses in the sum of HK$25,750 per month. The wife shall be responsible for the balance. 24.In so far as the wife’s personal expenses are concerned, she shall be wholly responsible for these. Some seem very high in any event and are clearly capable of reduction. Similarly, the husband should be able to reduce his own personal expenses by a significant amount. The children’s expenses 25.The husband has agreed to pay for the children’s school fees, school bus fees, insurances and for the X monthly chit. I will hold him to that agreement, which shall be expressed as undertakings in the preamble of the order. Some of the remaining expenses seem very much on the high side. For example, I have reduced the estimate for ECA’s to HK$10,000 per month i.e. HK$5,000 per month per child. It is for the wife to operate within this budget. In addition, it seems to me that the parties shall each be responsible for their own costs for entertainment and presents for the children and for the costs of holidays (which on the wife’s estimate seems very high in any event). I will therefore allow the following additional direct expenses for the children as follows:
In total this amounts to HK$22,777, which shall be rounded up to HK$23,000 per month. Standard living 26.In allowing these sums I have recognised that when a marriage breaks down and the parties begin to live in two separate households it is not possible, generally speaking, to maintain the same standard of living as before. There has to be, by necessity, some form of adjustment. This case is no exception. Conclusion 27.In conclusion then I will make an order that in total the husband do pay the wife HK$74,500 per month (i.e. HK$51,500 + HK$23,000 = HK$74,500) as interim maintenance for the two children of the family plus HK$25,750 per month as maintenance pending suit for the wife. He will also undertake to continue to make those payments set out in paragraph 25 above. It seems to me that the husband should be able to pay this sum by cutting down on his own expenses, borrowing as he has before and by restructuring his investments and that the wife should be able to support herself in the immediate to short term by relying on the maintenance together with her own income and other financial resources. Costs 28.Given that the wife really had no alternative but to seek the assistance of the court and notwithstanding the fact that the court has not made an order in the terms that she sought, I will nevertheless make an order nisi to be made absolute in 14 days’ time that the husband do pay the wife’s costs of this application on a party and party basis to be taxed if not agreed. Order 29.Consequently I shall make an order as follows:
IT IS ORDERED THAT:
Ms Mairead Rattigan instructed by Tanner De Witt for the Petitioner Ms Frances Irving instructed by Withers for the Respondent | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
Cases cited in this judgment