Kksr v. Clh
Read the full judgment text of FCMC 13299/2019 on BabelCite. This Family Court judgment was delivered on 19 April 2021 before District Judge K.K. PANG.
Maintenance Pending Suit – Matrimonial Proceedings and Property Ordinance – Reasonableness – Financial Resources – Divorce Ancillary Relief – Whether maintenance pending suit should be granted and quantum determined based on reasonableness and ability to pay – Court orders H to pay W HK$17,500 per month – Costs reserved.
Legal issues: Quantum of Maintenance Pending Suit
Outcome: Maintenance Pending Suit order made; H ordered to pay W HK$17,500 per month; costs reserved.
Cites 1 case
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FCMC 13299/2019 [2021] HKFC 63 IN THE DISTRICT COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION MATRIMONIAL CAUSES NUMBER 13299 OF 2019 -----------------------------------
----------------------------------- Coram: District Judge K.K. PANG in Chambers (Not open to public) Date of Hearing: 19 March 2021 Date of Judgment: 19 April 2021 ----------------------------------- J U D G M E N T (Maintenance Pending Suit) ----------------------------------- Background 1.The parties were married in 1996. The parties adopted the child of the family (the ‘daughter’), a girl born in 2009, in 2010. The petitioner husband (‘H’) petitioned for divorce on behaviour on 7 November 2019. By the consent order dated 30 June 2020, joint custody of the daughter was granted to the parties, with care and control to the respondent wife (‘W’) and reasonable access including staying access to H. The Decree Nisi was pronounced on 30 September 2020. 2.By the summons dated 17 December 2020, W made an application for an order that:
3.This is the hearing of W’s application by the summons dated 17 December 2020. W contends that the present application is occasioned by a change in W’s financial circumstance including a reduction in her salary and a loss of her rental income so much so that, with her current income and the voluntary payment of the sum of HK$10,000 per month from H, she is unable to cover the household expenses and the other expenses for herself and the daughter. While H opposes W’s present application, he offers to continue the voluntary monthly payment of $10,000 per month for the benefit of the daughter until the determination of the ancillary relief proceedings. The Applicable Principles 4.W’s application is governed by section 3 of the Matrimonial Proceedings and Property Ordinance, Cap. 192. 5.The court has a wide discretion in the matter, subject to the result being reasonable: TL v ML & Ors (Ancillary Relief: Claim Against Assets of Extended Family) [2006] 1 FLR 1263 per Deputy High Court Judge Mostyn QC (as he then was) at 1289:
6.In HJFC v KCY [2012] HKFLR 27, Hartman JA said at §37:
W and the daughter’s reasonable needs 7.W, now aged 49, is a flight attendant. According to W’s Form E filed on 11 September 2020, the bulk of her assets includes three residential properties in Hong Kong, namely (1) the Seaview Crescent property (‘Seaview Crescent property’) and (2) Flat C and (3) Flat D ((2) & (3) collectively the ‘Matrimonial Home’) all of which are registered in W’s sole name. The net values of the Seaview Crescent property and the Matrimonial Home are HK$9,411,692 and HK$12,673,242 respectively. She also had HK$567,616 in bank, value of insurances policies of HK$59,910, value of debts owed to her of HK$35,000, value of valuable personal items of HK$70,000 and value of pensions of HK$1,350,526, and debts of HK$32,028. The net value of her assets and liabilities was HK$24,135,958. Besides, W is the registered owner of an apartment in Nanning, China, of which the market value is about RMB400,000. At the present hearing, it was updated that W’s cash in bank was diminished to HK$281,000. 8.According to W’s Form E filed on 11 September 2020, her average monthly earned income was HK$29,998.48 and she also received rental income from the Matrimonial Home of HK$35,000 per month, and her monthly general expenses, personal expenses and child expenses were HK$47,497, HK$23,900 and HK$27,455 respectively, totally HK$98,852. Due to the outbreak of COVID-19 and the restructuring of W’s employer, her basic salary and fringe benefits have been reduced. In addition, the tenant of the Matrimonial Home quitted the tenancy in January 2021. At the present hearing, it was updated that her income after salary reduction and loss of rental income from the Matrimonial Home was HK$39,577 per month until March 2021, HK$34,577 per month for the period from 1 April 2021 to 31 December 2021 and HK$21,544 per month thereafter. 9.She has since trimmed her monthly expenses down to HK$44,497 for general expenses, HK$14,000 for personal expenses and HK$27,106.5 for child expenses, totally HK$85,603.5 per month, details of W’s updated general expenses and personal expenses are as follows: - General
Personal
10.W has not provided the details of the daughter’s updated monthly expenses. According to her Form E filed on 11 September 2020, the details are as follows: Child
11.Despite that H takes the position that some items of W’s expenses are inflated, he has not provided the particulars of his comments on W’s expenses. 12.W contends that the parties lived a comfortable living standard during the marriage. Despite that it seems indisputable to me that the parties lived a comfort living standard during the marriage, I take the view that the parties have to face the reality that once the divorce process has started, the parties’ standard of living will drop. Many factors combine to lower the parties’ standard of living after divorce. Expenses will begin to mushroom as soon as the divorce process starts, for example legal fees, new living expenses and myriad other costs will drain their financial resources. Money previously used to support one household must now stretch to support two. 13.I take notice that most of the monthly expenses are flexible. I regard that W should consider cutting down on the food expenses and her personal expenses. After having carefully considered, I take the view that the food expenses under general expenses should be reduced to HK$6,000 per month and that W’s total expenses on meals out of home, transport, clothing/ shoes, personal grooming and entertainment/ presents should be reduced to HK$4,500 per month. Given that there has been around 50% reduction of W’s earned income, I presume that W’s tax downward adjustment is not less than HK$2,000 per month. Without going to an item by item forensic examination of each and every item of the child expenses, I accept the child expenses at HK$24,000 per month. In summary, I assess W’s monthly expenses at $43,000 (≒42,997) + 7,000 + 24,000= HK$74,000 per month. I accept W’s earning was HK$39,577 per month until March 2021, HK$34,577 per month for the period from 1 April 2021 to 31 December 2021 and HK$21,500 (≒21,544) per month thereafter. I however take notice that there is no evidence that the Matrimonial Home will not be rented out for comparable rent in the near future. I see no reason why I should not assume that W will continue to receive rental income from the Matrimonial Home of around HK$35,000 per month. In the circumstance, W has/ will have a shortfall of around HK$17,500 per month, the breakdown of which is as follows: HK$74,000 - 56,500 (21,500 + 35,000) = HK$17,500 per month. H’s ability to pay 14.H, now aged 60, a retired businessman. According to his Form E dated 7 October 2020, the net value of his assets and liabilities was HK$15,538,670, including the net value of HK$15,149,500 of 9 Hong Kong and overseas landed properties, all registered in his sole name, and the Cambodia property registered in the joint name of the parties, cash in bank of HK$343,105.52, value of stocks of HK$26,064 and value of valuable personal items of HK$20,000, and he had no debts. 15.According to H’s Form E dated 7 October 2020, he had the following monthly rental income: -
16.According to H, due to COVID-19, some of his properties have become vacant so that the monthly rental incomes has decreased. In his opposing affirmation, he gave an update of his monthly rental income as follows: -
17.According to H’s Form E dated 7 October 2020, his general expenses, personal expenses and child expenses were HK$23,300, HK$35,000 and HK$6,000 per month respectively, totally HK$64,300 per month. In his opposing affirmation, he gave an update of his monthly expenses as follows: -
18.It appears from the above that his monthly rental income is insufficient to meet his monthly expenses and accordingly he argues that there is no room for any upward variation of the MPS. At the same time, he makes complaint that his financial situation was worsen as a result of W’s withdrawal of AUD14,700 and JPY1,230,000 from the parties’ joint bank account on 9 October 2020. 19.W contends that, on top of his monthly rental income, H has resources that can reasonably be deployed for the purpose of MPS payment: - (1) H sold a landed property in Osaka, Japan for JPY8,300,000 in January 2020; (2) During the period from 15 November 2020 to March 2021, H sold totally 26,400 HSBC shares for the net value of HK$1,160,206.18 and withdrawn HKD1,154,607 from the same account; (3) H sold the Melbourne property for AUD575,000 in March 2021 and after having taken care of the outstanding mortgage loan of around AUD264,043.41 he should have received the proceeds of sale of around AUD310,956.59. 20.It is worthy of noting that H does not take issue on either the said sale of HSBC shares or the withdrawal of the said sum of HKD1,154,607. About the sale of the Osaka property, H has provided a breakdown of the sale proceeds showing that the net sale proceeds are around JPY6 to 7 million[1]. As to the sale of the Melbourne property, H argues that the Melbourne property was jointly owned by his older brother living in Singapore and him and the sale proceeds have been divided between them in equal shares. According to him, what he has received is only around HKD769,130[2]. Despite that W takes great exception on the argument that H’s older brother was beneficially interested in the Melbourne property, as I am not in a position to resolve the parties’ factual disputes on the beneficial ownership of the Melbourne property at this stage, I must leave the parties’ disputes in this regard to be dealt with in the third party proceedings, if any, or the substantive ancillary relief proceedings. For the present purpose, I consider that I can safely assume that H has been sitting on the net proceeds of sale of the HSBC shares and the Osaka property as well as not less than 50% of the net proceeds of the sale of the Melbourne property, i.e. totally not less than around HK$2 million, since around January 2020. 21.W takes the position that H has deliberately inflated his monthly expenses and reduced his rental income to put him in a situation that he cannot pay towards W and the daughter’s expenses. 22.I now turn to H’s monthly expenses. As shown by the receipt produced, the hotel rental is HK$9,900 per month instead of the claim of HK$10,800. Taking into consideration W’s expenses on food for W, the daughter and the helper, i.e. totally around HK$9,000 per month, I regard that his meals out of home expenses should be reduced to HK$6,000 per month. I have said in the above that the parties have to cut down on expenses. I regard that it is fair to assume that the parties should have similar standard of living and on a broad brush basis I assess H’s personal expenses on transport, clothing/shoes, personal grooming and entertainment/ presents, supplements/ gym and Thai boxing at the same level of W’s personal expenses, i.e. HK$4,500 per month. I accept W’s position that many of the so-called costs and charges for vacant properties are one-off expenses and accordingly the claim of HK$20,280 per month is obviously excessive. I make a provision of HK$5,000 per month for the so-called costs and charges for vacant properties. In summary, I assess H’s monthly expenses at HK$9,900 + 6,000 + 4,500 + 500 + 700 + 5,000 = HK$26,600 exclusive of MPS payment. 23.As per H’s Form E dated 7 October 2020, his monthly rental income was around HK$54,100. Against such backdrop, W is incredulous to H’s account of his current monthly rental income of only HK$33,995. She takes the position that H’s current rental income is around HK$57,325. By reason of the matters in the above, I take the view that it is unnecessary to resolve the parties’ disputes in this respect for the purpose of the present application. No matter whether his true rental income is HK$33,995 or HK$57,325, nonetheless, I remark that H’s rental income is way more than sufficient to meet his reasonable monthly expenses. 24.Looking at the matter in the round, I have little doubt that H has the ability to pay W HK$17,500 per month as MPS for her immediate and reasonable needs. 25.In conclusion, it is ordered that H do pay W HK$17,500 per month as MPS, the 1st payment to be made on the date of this order and subsequent payments on the 19th day of each succeeding month until further order. Despite H’s argument to the contrary, it is directed that W can make use of all of the rental income from the Matrimonial Home for interim maintenance, until further order of the court. 26.Inasmuch as the MPS order in the above is adequate to meet W’s immediate and reasonable needs, I make no order as to the paragraphs (2), (3), (4) & (5) of the summons dated 17 December 2020. 27.I am aware that the issue on the parties’ respective financial positions remains a continuing source of disputes that will be sorted out at the later stages of these proceedings. In due course, any under provision or over provision in the MPS order may be set off if it is fair and just so to do. 28.Since broad brush approach is adopted and in view of the parties’ arguments on their respective financial positions are yet to be determined, I make an order nisi that costs of by this application be reserved. The order nisi becomes absolute 14 days after this order is made unless a party has applied to the court for varying the order.
The petitioner husband acting in person Ms. Valerie Tang instructed by Tang Lee & Co. LL.P. for the respondent wife [1] KKSR1-6 p.3 [2] Petitioner’s skeleton arguments #28 |
Cases cited in this judgment
Further hearings and rulings under FCMC 13299/2019