M D, Mp v. M, Mga
Read the full judgment text of FCMC 751/2018 on BabelCite. This Family Court judgment was delivered on 15 February 2022 before His Honour Judge G. Own.
Matrimonial Causes – Decree Absolute – Section 18 Declaration – Children’s Welfare – Financial Prejudice – Ancillary Relief – Big-money case – Respondent sought expedited Decree Absolute to marry new partner – Petitioner opposed citing financial prejudice and lack of child arrangements – Court held Section 18 declaration not granted as children’s welfare not satisfactorily arranged and personal wishes do not outweigh children’s interests – Court held Decree Absolute refused due to real financial prejudice, jurisdictional enforcement risks, and loss of maintenance pending suit rights – H’s Summons dismissed with costs.
Legal issues: Section 18 Declaration · Decree Absolute · Costs
Outcome: H's Summons dismissed; Decree Absolute not granted.
Cited by 1 case · Cites 1 case
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FCMC 751/2018 [2022] HKFC 33 IN THE DISTRICT COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION MATRIMONIAL CAUSES NO. 751 OF 2018 -----------------
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--------------------------------------- D E C I S I O N --------------------------------------- Introduction 1.The Petitioner was the Wife (“W”) and the Respondent was the Husband (“H”). 2.On 30/9/2021, H issued a Summons seeking, inter alia, for :-
Background 3.Parties married each other in February 1999. There are 2 children of the family whom I will refer to them as “C” and “K” respectively, who are at the age of 18 and 13½ at the time of this Decision. 4.In January 2018, W issued Petition for divorce relying on the fact of “Unreasonable Behaviour”. The divorce suit was uncontested by H. 5.In March 2019, Decree Nisi was granted. On the same day, H and W were granted joint custody of the 2 children. W was granted care and control of both children and H was granted reasonable access. 6.Ancillary reliefs were adjourned for further disposal. Parties have attempted several sessions of Private Financial Dispute (“FDR”) which turned out to be unfruitful. 7.It is common ground that this is a “big-money” case. The assets at stake, be it marital or non-marital, comprised of the former matrimonial home in Stanley, Hong Kong, worth around HK$330 million, properties in Beijing, Canada, Dubai and also land in Australia. There are also local and overseas bank accounts and investment brokerage accounts where substantial sums were kept. 8.W was at the age of 54. H was at the age of 55. The Law 9.Section 18 of the Matrimonial Proceedings and Property Ordinance, Cap. 192 (“MPPO”) reads :-
10.For Decree Absolute, the following provisions under the Matrimonial Causes Ordinance, Cap.179 (“MCO”) are of relevance :-
11.The Chief Judge (formerly Chief Justice) issued the Matrimonial Causes (Decree Absolute) General Order 1973 which reduced the period of 3 months after expiration of the Decree Nisi to 6 weeks for decree nisi pronounced on or after 3 July 1973. 12.Further, Rule 65(4) of the Matrimonial Causes Rules, Cap.179A (“MCR”) provides :-
Cases and Authorities 13.In the case of R, LH (also known as J, LH) v J, MS [2020] HKFC 209 where my learned sister Judge Melloy after referring to the statutory provisions of Section 18 of the MPPO, said :
14.In the leading case of JAH v VH [2013] HKFLR 664 where the petitioner wife in the case did not wish a decree absolute to be granted. She was concerned that she might be severely prejudiced financially if the decree absolute was granted before the ancillary reliefs order was effected. Mr. Justice Cheung JA referred to the UK case of Dart v Dart [1997] 1 FCR 21 and set out the proper test to be applied, said as follows :-
15.That said, this is the test that I will apply to the present case. Case Management Directions 16.H’s Summons was scheduled for a 15-minute call-over hearing on 8/10/2021. At the call-over hearing, the Summons was set down for substantive argument (with half day reserved) on the first available date to be fixed in consultation with Counsel’s diaries. Directions were also granted for the parties to exchange affirmations. 17.On 26/11/2021, upon H’s lawyers application (by letter) for the substantive hearing be conducted by way of VCF, this Court granted the following case management directions. The directions are :-
18.On 30/11/2021, W’s lawyers wrote to this Court confirming that W was not planning to attend the substantive hearing in person as she was also in the United States. In any event, it would not be feasible for W to attend the hearing via VCF given the extreme time differences between Hong Kong and the East Coast of the United States. 19.On 30/11/2021, this Court granted the following additional case management directions, namely :-
20.H’s Affirmation in Reply (unsworn) was then submitted as his 6th Affirmation under Exhibit “LTYN2-1” to his lawyer’s Affirmation. The parties’ positions 21.The reasons put forward by H for the need of an expedited Decree Absolute can be summarised as follows. 22.First, he had separated from W when he started his employment in Toronto, Canada, back in 2016. Since then, both of them had led two separate and different lives which, by the time of the trial on ancillary reliefs scheduled for July this year, would be around 6 years[1]. 23.Secondly, he has been in serious relationship with one Madam G since November 2018 with whom he had lived for the last 1½ years since March 2020[2]. He had now planned to marry Madam G and moved on his new life upon conclusion of these divorce proceedings which had lasted for around 3½ years by now. 24.Thirdly, Madam G is now pregnant and the expected date of delivery was 28/2/2022[3]. Given such fact, H wanted to be married to Madam G as soon as possible before their child was born in order to give Madam G and their child their proper status[4]. 25.Fourthly, he has concerns about stigma and discrimination, and further that in some areas, the law can be seen to treat illegitimate child with disfavour. To his understanding, his rights as a parent are restricted over an illegitimate child[5]. 26.W in her 21-page Affirmation in Opposition (unsworn) produced as her 7th Affirmation made reference to some other events which had taken place earlier and set out in her 1st, 4th and 6th Affirmations as well as H’s 1st and 4th Affirmations already produced before the Court. 27.In gist, W’s ground of opposition was that there would be real and tangible financial prejudice both to her and the children of the family if H’s Summons was granted and a Decree Absolute was made[6]. 28.First and foremost, there had not been any financial orders granted in respect of marital assets or maintenance. There are only 2 Orders granted, one on 26/3/2019 about custody, care and control of the 2 children; and another one on 14/7/2021 restricting H’s access over the younger child K[7]. Perhaps it is worth mentioning that there are serious psychological issues over the younger child K who had received intensive treatment in Hong Kong and lately in the United States. Anyway, W has accompanied K to the United States back in August 2021 and still there at the time of this Decision. H was also in the United States with Madam G expecting the birth of their baby. 29.According to W, the total marital assets are in the region of around HK$1.2 billion and this is a “big money” case by any measure. However, the only meaningful assets which she has control are (i) the former matrimonial home in Stanley (“Stanley Home”) where she was still residing whilst she was in Hong Kong; and (ii) the Land in Australia registered in her sole name which she had disclosed earlier in her 1st Affirmation. 30.On the other hand, H is the registered owner of all the brokerage accounts with Goldman Sachs, numerous bank accounts, numerous private investments, an apartment in Beijing, China (“Beijing House”), a new house purchased in Dubai. There was a house in Toronto, Canada (“Toronto House”) which W said H had sold egregiously without accounting her 50% share of the net sale proceeds which was around C$6.30 million. W had already issued a Summons for H to account for and pay her back the C$6.3 million. Such application had already been directed to be dealt with by way of paper disposal and the decision of which is pending. 31.H resigned from his Executive position in a prominent Government Bureau in Canada around February 2021. He was entitled to an Exit package which was believed to be of substantial sums where details of which had yet to be explored by W unless H voluntarily disclosed them. 32.Upon scrutiny of H’s belated disclosure of his updated bank statements on 22/10/2021 and with H’s answers to questions raised, W was able to confirm that H had spent at least US$7.2 million in the year 2021 which consists of the following :
33.It is also W’s case that the financial support provided by H for the last couple of years had been sporadic and at H’s whim[9]. There was a joint account with Standard Chartered Bank in Hong Kong (“SCB Joint Account”) where H, at his wish, transfer funds for the benefit of W and the children. Within the calendar year of 2021, H had made only 2 transfers totalling approx. HK$27 million into the SCB Joint Account as follows :-
34.Whilst the amount of approx. HK$27 million might appear to be a significant sum, the monthly expenses payable therefrom were for H, for her and for the children which are substantial and ongoing[10]. In summary, the expenses payable from the SCB Joint Account include :-
35.At this stage, it is unclear how long the younger child K would have to stay in the United States for her intensive and ongoing treatment. Thus, the exact amount of costs required for K’s treatment could not be ascertained save that it is fair to say those costs would certainly be significantly higher as compared to those in Hong Kong[12]. 36.There are other complaints by W over H’s manipulation of assets that he held solely or otherwise, which are or might be marital assets of which she and the children should be entitled upon the trial of ancillary reliefs. Amongst these complaints, there are :-
37.Furthermore, W said H had once asked her to sign a document to remove her as one of the directors of the company Mxx Txx which holds the ownership of the Stanley Home[15]. H also instructed the company secretary of Mxx Txx to stop sending correspondence to the Stanley Home[16]. Still further, H had instructed the company secretary of another company Ixx not to contact W by claiming that H himself would be the authorized representative of both H and W[17]. 38.Given all the above, W said no concrete Undertakings have been provided by H to safeguard hers and that of the children’s future financial position before the ancillary reliefs trial[18]. The Section 18 declaration should not be granted. 39.To oppose granting the Decree Absolute at this stage, W submitted that there was a real risk of financial prejudice arising from 3 perspectives; namely, that (i) H would lose incentive to participate in the ancillary reliefs proceedings; (ii) in the unfortunate event that H dies before the ancillary relief was concluded, she would be left with no alternative but to apply for inheritance under the existing statutory provisions; and (iii) she would be barred from applying maintenance pending suit/litigation funding. 40.H in his 6th Affirmation in Reply (unsworn) brought forward certain safeguards for the interim period (pending the outcome of the ancillary reliefs trial) to cater for W’s concerns. They are as follows :-
41.H in his Affirmation in Reply made the point that preserving family’s financial status quo necessarily involves exercising discipline and instilling safeguards to ensure that needs are met and assets are prudently managed. Done incorrectly, it permits wanton spending and needless depletion of hard-earned resources on reckless legal exercises. 42.H denied there was any disposition or dissipation of the assets under his control and certainly he was not in the manner which W had done with the funds that she had direct access. On 5/11/2021, he instructed his lawyers to put forward to W a so-called “Charman option” which suggested a sum of approx. HK$75 million be kept with W on her balance sheet as an advance payment and as part and parcel of her ancillary relief application[22]. Such proposal was, after exchange of lawyers’ correspondence, not accepted by W. 43.H also refuted W’s allegations made against him in her 7th Affirmation. I do not intend to go through each and every one of the allegations and replies since no finding of facts could be made at this stage without the benefit of hearing parties’ cross examination to determine veracities of the allegations and replies and also their credentials. Discussion Section 18 declaration 44.I noticed that there are solicitors’ correspondence where the notion or idea of undertakings were canvassed by the parties, however, no formal Undertakings had actually been filed by H with the Court at the time of or before he issued the present Summons for the Section 18 declaration. Leaving aside any Undertaking to financially support the children, there was not even an Undertaking filed by H that he would bring the question of children arrangement before the court within any specified time as prescribed by Section 18(2) of the MPPO. 45.Going through H’s financial portfolio and the actual children’s arrangements at present, and in the absence of any maintenance orders upon H or undertakings from H, I am not satisfied that the children’s welfare have been satisfactorily arranged or are the best that can be devised in the circumstances for a declaration to be granted under Section 18(1)(b)(i) of the MPPO. 46.The need for an imminent 2nd marriage of H and Madam G, and/or H’s wishes to ensure their unborn child’s legitimacy upon birth, in my decision, could hardly be accepted as circumstances desirable for granting the declaration under Section 18(1)(c) of the MPPO. 47.Although H’s wishes and desire to lead a new life after the failed marriage and the legitimacy of the unborn child are of importance on public policy grounds, the interests of the children within the failed marriage, on the other hand, should not be curtailed or compromised. In my view, this is the rationale behind or legislative intent for the need of a Section 18 declaration preceding making the final Decree Absolute. This is especially so where the children, as in the present case like K and, to a lesser extent also C, requires additional care and special needs and attention for their upbringing. The best interests of the children have always been of paramount importance which, in my view, should not give way to their parents’ personal wishes or aspirations. 48.For these reasons, I decided that no declaration should be granted under Section 18(1)(c) of the MPPO. Decree Absolute 49.Paragraph 2 of H’s Summons sought abridgment of time for W to apply for the Decree Nisi to be made absolute. H also sought leave for him to do so on an expedited basis if W did not do so within 1 week of the Section 18 being granted. 50.As Section 18 should not be granted under whichever limb, be it under (1)(b)(i) or (c) for the above reasons, such relief sought by H became nugatory. 51.Admittedly, W had transferred from the SCB Joint Account a sum of US$2.9 million (which is approx. HK$22.6 million) on 1/10/2021 to her personal account. There was also refund of the excess withholding tax of US$1,531,007.71 (approx. HK$11.9 million) into the SCB Joint Account on 25/5/2021. 52.On the other hand, H had withdrawn a sum of around C$6.32 million in early October 2021 which allegedly was W’s 50% interests of the sale proceeds of the Toronto House from the CIBC joint account. According to the “Charman option”[23], H admittedly had spent around HK$75 million which, if added to the C$6.32 million (approx. HK$38 million) that he had withdrawn, was around HK$113 million. 53.That said, I accept W’s contention that, if the Decree Absolute was granted at this stage, she would be financially prejudiced given the fact that there was substantial disparity between her and H over the disclosed liquid cash, not even mentioning the value of any other assets, disclosed or undisclosed, or investment income or cash balances. 54.W’s first concern of H’s losing incentive to participate the ancillary reliefs is well-founded. H needed the Decree Absolute for him to be able to marry Madam G and; once that had happened, it is perfectly legitimate for H to arrange financial planning for his new family with Madam G in whatever way he chooses or wishes. The marriage would, as a matter of law, also avoid any prior wills or codicils from being effective or operative, had there been any in favour of W. 55.Given H’s disclosure of his bank statements belatedly after W had issued a Summons on 1/9/2021 for specific discovery, I find that it is likely or probable that H would lose incentive to progress with W’s ancillary relief after he had obtained the Decree Absolute that he wanted. 56.The ramification upon the unfortunate event of H’s death, after obtaining the Decree Absolute and his marriage with Madam G but before conclusion of W’s ancillary reliefs, is more far reaching than W so submitted. Apart from Madam G would be receiving H’s estate as his spouse, the child whom F and Madam G are expecting would also have dependant interests in H’s estate which W would also have to compete with. 57.W’s third concern of losing right to seek maintenance pending suit/litigation funding after Decree Absolute is beyond any doubt as a matter of matrimonial rules and procedures. 58.In addition, W’s Counsel Mr. Wood in his legal submissions raised a jurisdictional issue along two aspects. 59.First, since most of the substantial family wealth are located outside Hong Kong and that H himself also based outside Hong Kong, whether any ancillary relief orders could be enforced is unclear so long as H’s domicile or place of residence remains unclear[24]. 60.Secondly, there is the jurisdictional requirement under section 3(1) of the Inheritance (Provision for Family and Dependents) Ordinance, Cap.481 that H must have been domiciled in Hong Kong or having been ordinarily resident in Hong Kong for 3 years immediately preceding his death. Thus, any inheritance and succession issues regarding H’s moveable property would likely be determined under the law of H’s domicile wherever it was, be it Dubai or the United States[25]. 61.I accept these two potential jurisdictional issues are properly raised which further support my decision for the Decree Absolute to be granted at this stage. 62.For all the above reasons, I find in W’s favour that the Decree Absolute should not be granted at this stage. Having so decided, there is no question of abridgment of time for W to apply for Decree Absolute sought by H. The other reliefs for H to do so if W did not apply also falls apart. Decision 63.In conclusion, I find H completely fails in his application. Costs 64.Since H completely failed in his application, I decided that the usual costs order should follow. H has to pay W’s costs of his application, including all costs reserved (if any), to be taxed if not agreed. 65.I also grant Certificate for Counsel. Orders 66.I now grant the following Orders :-
67.This is a costs order nisi which would become absolute if no application is made by any party to vary the same within 14 days from the date of this Decision.
Mr. James Wood instructed by Messrs. Gall, Solicitors for the Petitioner Mr. Jeremy S.K. Chan instructed by Messrs. Withers, Solicitors for the Respondent [1] See paragraph 5 of H’s 5th Aff [2] See paragraph 6 of H’s 5th Aff [3] See Exhibit “”MMGA-5-2” of H’s 5th Aff [4] See paragraph 10 of H’s 5th Aff [5] See paragraph 11 of H’s 5th Aff [6] See paragraph 9 of W’s 7th Aff [7] See paragraph 17 of W’s 7th Aff [8] See paragraphs 24 and 25 of W’s 7th Aff [9] See paragraph 27 of W’s 7th Aff [10] See paragraph 30 of W’s 7th Aff [11] See paragraph 31 of W’s 7th Aff [12] See paragraph 32 of W’s 7th Aff [13] See paragraph 37 of W’s 7th Aff [14] See paragraph 38 of W’s 7th Aff [15] See paragraph 43 of W’s 7th Aff [16] See paragraph 43 of W’s 7th Aff [17] See paragraph 43 (iii) of W’s 7th Aff [18] See paragraphs 44 to 45 of W’s 7th Aff [19] See paragraph 26 of H’s 5th Aff [20] See paragraph 27 of H’s 5th Aff [21] See paragraph 28 of H’s 5th Aff [22] See paragraph 26 of H’s 6th Aff [23] See paragraph 42 of this Decision [24] See paragraph 12(c) of W’s Counsel’s written submissions [25] See paragraph 12(d) of W’s Counsel’s written submissions |
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