Lm v. Fw

CACV 345/2024

[2026] HKCA 1737

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 345 OF 2024

(ON APPEAL FROM FCMC NO 7076 OF 2022)

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REASONS FOR JUDGMENT

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Hon Au JA (giving the Reasons for Judgment of the Court):

A. INTRODUCTION

1.The Petitioner wife (“W”) and the Respondent husband (“H”) were married in July 2019.  Before the marriage, W was a private banker and the president of a finance company.  H was (and still is) the founder and CEO of a private equity fund.  They signed a pre-nuptial agreement dated 14 June 2019 (“the PNA”).  W gave birth to a child (“Child”) in November 2019.

2.W petitioned for divorce in August 2022 (and hence the present proceedings in the Family Court), and in October applied by way of Summons (“the MPS Summons”) for maintenance pending suit (“MPS”) for herself, interim periodical payments for the Child and litigation funding.  In December, H applied by Summons (“Crossley Application”) for the purposes of enforcing the PNA.

3.After hearing the MPS Summons, on 22 March 2024, Deputy District Judge W Y Ho (“the Judge”) made an Order (“the Order”), ordering H to pay to MPS of HK$406,000 per month for W and interim maintenance of HK$232,000 per month for the Child, and various expenses by direct settlement/reimbursement.  She refused the application for litigation funding.  The Judge has set out in detail her reasons for making the Order in her written decision (“the Decision”)[1] of the same date.

4.H applied for leave to appeal against the Order only in relation to the part relating to W’s MPS.  For convenience, we will refer to this part of the order as “W’s MPS Order”.  In other words, H did not seek to appeal against the part of the Order in relation to paying interim maintenance for the Child.

5.In the said leave application, the Judge refused to grant leave on most of the proposed grounds of appeal relied on by H.  However, she considered that “in the interest of justice”, leave should be granted to H on the question (“the Question”) of “[w]hether and how should the court consider a pre-nuptial agreement in a maintenance pending suit and/or interim maintenance application when there is a pending decision and/or hearing on the validity of the pre‑nuptial agreement?”  See the Judge’s decision dated 16 August 2024 (“the Leave Decision”), at [15].

6.After leave was granted based on the Question, H filed the Notice of Appeal (“NoA”) in which H seeks an order from this court to dismiss the MPS Summons insofar as it relates to W’s application for MPS for herself.  In it, H raises several grounds of appeal which are said to pertain to the Question.

7.At the end of the hearing, we dismissed H’s appeal with costs, and indicated that we would hand down our reasons for judgment in due course.  These are our reasons.

B.  RELEVANT BACKGROUND

8.Most of the background facts are uncontroversial and not in dispute.  For present purposes, they can be briefly highlighted as follows[2].

9.H and W met each other in 2014, and after co-habiting since March 2019, they were married in July 2019.  The Child was born in November 2019.

10.Before the marriage, H and W were already successful middle-aged individuals engaged in the finance and private banking industries.  They are wealthy individuals.  According to their respective Form Es, W’s net worth is at least HK$77m and H’s net worth is HK$75m, while the matrimonial assets are potentially over HK$150m[3].

11.Before signing the PNA, H and W had provided to each other written disclosures as to their broad means and resources at that time.  They had each also sought and received separate and independent legal advice on the terms of the PNA.

12.As summarized by Mr Eugene Yim (together with Ms Bonnie Cheng) for H, the salient terms of the PNA include the following:

(1)  Neither party will acquire any beneficial interest in the “Separate Property”[4] of the other which has been respectively set out and provided in Schedules B (for H) and C (for W) of the PNA.

(2)  On the “Permanent Breakdown of the Marriage”[5], the parties shall each retain his or her Separate Property.  Their “Matrimonial Property”[6] shall be divided equally.

(3)  H and W’s Separate Property as at the date of the PNA are respectively set out in Schedule B and Schedule C.

(4)  The parties will maintain all children to the best of their ability and means, and each will abide by any court order setting out their obligations in respect of any children following the Permanent Breakdown of the Marriage.

13.As mentioned, W petitioned for divorce in August 2022 and took out the MPS Summons in October 2022.  As W was of the view that H had grossly failed to make proper disclosure in his Form E about his assets, on 1 November 2022, W filed an application for H to comply with the basic Form E disclosure requirements.  Then on 5 December 2022, H made the Crossley Application by summons (“Crossley Summons”).  When the Judge heard the MPS Summons on 22 September 2023, the Crossley Application was yet to be heard.

14.In the meantime, in relation to the then pending various applications made by W and H (including the Crossley Application):

(1)  at the 2^nd case management hearing in October 2023, the Family Court, among other things, gave leave to W to apply for specific discovery against H[7]; and

(2)  at the 3^rd case management hearing in August 2024, the court expressed the view that it should hear W’s specific discovery application first before making any directions in the Crossley Application and thus adjourned the Crossley Summons sine die[8].

15.After a 2-day hearing in December 2024, by way of its judgment dated 31 March 2025, the Family Court found that H’s discovery so far was “woefully unclear and thereby inadequate”[9]. The court allowed W’s application and ordered H to comply with his disclosure obligations under the Form E and make various specific discovery as sought with costs.

C.  THE DECISION

16.The MPS Summons was heard before the Judge on 22 September 2023.  As mentioned above, at that time, the Crossley Summons was yet to be heard and there were heated disputes as to whether H had grossly failed to make proper disclosure as to his assets in the Form E[10].

17.By way of the Order, the Judge ordered H to pay W MPS and Child interim maintenance, but refused W’s application for litigation fund.  The Judge has explained her reasons in the Decision.

18.As H in this appeal only seeks to challenge the W’s MPS Order, we would only focus on the Judge’s determination in the Decision in relation to this question.

19.Relevant for the present purpose, before the Judge:

(1)  There was no issue of H’s ability to pay as H accepted that he had the financial ability to pay any sums of maintenance the court may order[11].

(2)  H however disputed W’s claim for any MPS as:

(a)  principally, such a claim was inconsistent with the terms of the PNA which the court must have to have regard to (“the PNA Issue”)[12], and

(b)  in any event, W has her own sufficient financial means and/or resources and thus no MPS should be granted (“the Sufficient Means Issue”)[13].

20.In relation to the PNA Issue, Mr Scott SC (then leading counsel for H), relying on BN v MA[14] and SPH v SA[15] contended that, as a matter of principle, the court should adhere as closely as possible, if not entirely, to the terms of the PNA, and refuse to grant W MPS in the present case as the making of the claim was inconsistent with those terms: Decision at [11].

21.On the other hand, Ms Rattigan SC for W submitted that, given (a) W had provided evidence on the reasons why the PNA should be vitiated (and hence this case was distinguishable from the other cases relied on by H) and (b) that the pending Crossley Summons was yet to be determined, the court should “ignore the terms of [the PNA] and proceed to assess” (emphasis added) W’s application in accordance with her needs: Decision at [12].

22.After quoting the various relevant and salient terms of the PNA at [13] and considering counsel’s submissions, the Judge expressed her view that the approach to be taken in the present application was a “half-way-house between Mr Scott SC and Ms Rattigan SC’s suggested approach”: Decision at [15].  The Judge then adopted at [17] the principle set out by Mostyn J in BN[16], and held in substance that:

(1)  In a case (like the present one) where there is a “pending determination of the validity and enforceability of the nuptial agreement”, the court must be mindful of the unresolved dispute and should not proceed “blindly” in adhering to the provisions of the pre-nuptial agreement.  It is thus neither proper nor appropriate for the court to engage in any preliminary assessment of whether the pending Crossley Application is likely to be successful: Decision at [19].

(2)  The court should treat the pre-nuptial agreement as one of the factors to be considered in considering whether in the exercise of its discretion MPS should be granted: Decision at [20].

(3)  In this respect, the court’s primary consideration would be to consider the reasonable needs of the parties, the payer’s ability to pay and the financial resources of the paying party.  Once the court has formed a preliminary view as to whether maintenance should be ordered (and the amount of it in the absence of any pre-nuptial agreement), it should then consider the effect of that agreement on the ultimate MPS order to be made.  Fairness is an overriding principle when considering what weight should be attached to the pre-nuptial agreement:

(a)  If the application of the pre-nuptial agreement would result in “a great disparity” on what the court has found to be a reasonable maintenance order, or result in injustice to the parties, the court should be slow to give weight to it at the interim stage: Decision at [21].

(b)  If the application or adherence of the pre-nuptial agreement would cause an “ultimate redistribution of assets” such that the trial court’s discretion on the proper distribution of marital assets is hindered or limited, the court should also be slow to give weight to the pre-nuptial agreement at the interim stage: Decision at [22].

23.Adopting the above approach, the Judge went on to consider all the evidence adduced and:

(1)  assessed and concluded that W’s reasonable monthly expenses was HK$240,568 and her share of general expenses HK$165,000: Decision at [55].

(2)  accepted that W was currently unemployed and did not earn a regular income: Decision at [60].

(3)  rejected H’s submissions that W was financially independent and was in possession of sufficient liquid financial resources to meet her own immediate financial needs: Decision at [64].

(4)  further held that payment of MPS was not contrary to its terms.  In particular:

(a)  on a proper reading of the terms of the PNA, “the parties were protecting their pre-marital assets.  The terms of the [PNA] do not pre-empt parties from making ancillary relief applications on matrimonial assets in general”: Decision at [65] ‑ [66].

(b)  insofar as if any MPS might result in the division of assets contrary to the terms of the PNA, it was always open to the trial judge to make proper adjustments at the ancillary relief trial when considering the division of matrimonial assets.  Given H’s wealth and financial ability, an order of interim maintenance would not prejudice H’s position at the ancillary relief trial or at the hearing of the Crossley Application: Decision at [67].

24.The Judge therefore concluded that she would grant W’s MPS Order ordering H to pay W MPS at HK$406,000 (rounded up) per month: Decision at [69] and [75(1)(a)].

D.  THIS APPEAL

D1.  Grounds of appeal

25.By way of the Leave Decision, the Judge gave leave to H to appeal only on the Question.  It is convenient to repeat the Question again:

“Whether and how should the court consider a pre-nuptial agreement in a maintenance pending suit and/or interim maintenance application when there is a pending decision and/or hearing on the validity of the pre-nuptial agreement?”

26.In the NoA, H raises a number of grounds of appeal, said to be “[f]or the purposes” of the Question, to complain that the Judge had erred, and was plainly wrong, in ordering payment of MPS while failing to give proper effect to the terms of the PNA.  These grounds can be summarized as follows:

(1)  Ground 1: The Judge erred in adopting what she described as the “half-way-house” approach at [15] and [21] of the Decision, as this is wrong in principle and contrary to authorities, and has the effect of relegating the effect of a pre‑nuptial agreement to be “merely a secondary consideration/factor”, making the effect of the agreement to be considered by the court only when assessing the ultimate or overall effect of the MPS and not otherwise: paragraphs 2(1) ‑ (5) of NoA.

(2)  Ground 2: Given the above error in principle, the Judge made further errors when assessing the evidence to consider whether to grant MPS or not[17], as:

(a)  the Judge failed to make any preliminary assessment on W’s prospect of satisfying the court that the PNA should not be upheld, contrary to the principle set out in BN at [33]: paragraph 2(7) of NoA.

(b)  the Judge declined to take into account or ignored W’s assets to the tune of HK$220m as disclosed in the PNA, and W’s own failure to give full and frank disclosure and/or proper explanations of these assets in these proceedings: paragraph 2(8) of NoA.

(c)  the Judge failed to give or have sufficient regard to the fact awarding MPS to W is against or in tension with the terms of the PNA: paragraph 2(9) of NoA.

(d)  the Judge failed to have any or any sufficient regard to the fact that the PNA makes no provision for the payment of MPS or spousal periodical payment to either party: paragraph 2(10) of NoA.

27.We will now turn to consider the merits of these grounds.

D2.  Discussion

28.In our view, given the way in which the submissions are advanced by Mr Yim (together with Ms Bonnie Cheng) in their skeleton and at the hearing, these grounds can be conveniently considered together.

29.As we understand it, Mr Yim’s contentions are in substance as follows.

30.First, in recognition of the underpinning important principle of the parties’ personal autonomy and the fairness of their wishing to protect non‑matrimonial property[18], the Judge has righty adopted at [16] and [18] of the Decision that the court should, as a starting point, give effect to a pre-nuptial agreement freely entered into by each party with full appreciation of its implications unless it would not be fair to hold the parties to it in the circumstances prevailing.

31.Second, in relation to MPS applications where there are pre‑nuptial agreements, the Judge also rightly adopted at [17] of the Decision the principle laid down by Mostyn J in BN at [33], which was stated as follows:

“33. In my judgment, when adjudicating a question of interim maintenance, where there has been a prenuptial agreement, the court should seek to apply the terms of the prenuptial agreement as closely and as practically as it can, unless the evidence of the wife in support of her application demonstrates, to a convincing standard, that she has a likely prospect of satisfying the court that this agreement should not be upheld. In the absence of any evidence of that nature from the wife, it is my judgment that it is appropriate for me to seek to apply the agreement to this case as closely as I can, provided that the wife is not left in any real predicament of need...” (emphasis added)

32.Third, given the above principles, the Judge ought to have in the present case:

(1)  first carried out a preliminary assessment on whether W can demonstrate with evidence to a “convincing standard” a “likely prospect” of showing that the PNA would not be upheld in the pending Crossley Application (“Step 1”); and, if she cannot,

(2)  applied the PNA as closely and practically as it can in deciding the MPS application, as it is plain that W would not be in a predicament of need after applying those terms (“Step 2”).

33.However, the Judge erred in principle in:

(1)  refusing to carry out the said preliminary assessment as required under Step 1.  The Judge instead wrongly held at [19] of the Decision that, when there was a pending determination of the Crossley Application, “…the court must be mindful of this unresolved dispute and should not proceed blindly in adhering to the provisions of the nuptial agreement.  I am of the opinion it is not proper or appropriate for this court to engage in any preliminary assessment on whether the impending Crossley Application is likely to be successful” (emphasis added).

(2)  adopting the “half-way-house” approach whereby she wrongly first considered the MPS application on its own merits by looking at W’s reasonable needs and the parties’ respective financial capability and, only after finding that an MPS should in principle be made, then considered the impact the PNA’s terms might have on the making of the order.  This has rendered the effect of the PNA to be of secondary importance and thus is wholly inconsistent with and contrary to the above principles, where the court should have regard to the agreement and try to adhere “as closely as practicable” to its terms when it cannot be shown by evidence that there is a likely prospect that the agreement should not be upheld.

34.Had the Judge applied the proper approach as stated above, she ought to have further found under Step 1, that W had not been able to show that there was a likely prospect the PNA should not be held against her.  This is so as all her allegations made in the Crossley Application as to why she should not be bound by the PNA[19] are invalid when they are considered in the context of the indisputable fact that the parties, who are mature, well‑educated, sophisticated and wealthy middle-aged individuals, entered into the PNA voluntarily after having received separate independent legal advice on its terms.

35.Similarly, under Step 2, the Judge ought to have also found that, after applying the terms of the PNA as closely and practically as required, the ordering of any payment of MPS to W is inconsistent with those terms.  This is so as:

(1)  Reading paragraph 5, Schedules A, B and C of the PNA together and properly[20], it was clear that the intention of the parties under the agreement was that they would not make any interim ancillary relief applications (including MPS).  This is so because these terms show that the parties contemplated that, upon divorce, there would be a clean break without any periodical payment on an ongoing basis, and that (a) there is only to be a division of their joint matrimonial assets (Schedule A), and (b) the parties are to retain their respective Separate Property.  This is particularly so as paragraph 5.3 further provides, among others, that upon divorce, the parties should obtain an order by consent for “dismissal of their respective financial claims and potential financial claims against each other of whatever nature and in whatever jurisdiction in relation to their Separate Property…”; and/or

(2)  Having regard to the value of W’s Separate Property as set out in Schedule C, it was plain that she had sufficient financial resources and assets to meet her own needs and reasonable expenses, and thus it does not support any order for payment of MPS.

36.For the following reasons, it is plain to us these contentions are without merits.

37.First, even assuming for the present moment Mr Yim’s submissions are correct as to the proper approach in dealing with an MPS application based on the BN principle as set out at [32] above, H can only succeed in challenging the W’s MPS Order if it can be shown (as Mr Yim also contends) that the making of the order is contrary to the terms of the PNA.  However, it is clear to us that the W’s MPS Order is not inconsistent or contrary to those terms as the Judge found.

38.As Mr Yim rightly accepts, there is no express provision in the PNA which prohibits the parties from making any interim financial relief applications to the court upon divorce.  Mr Yim’s above contentions as to the effect of those terms in the PNA at its highest only amount to saying that the parties intended to have a clean break upon divorce and to have the final ancillary relief premised upon a division of only the joint Matrimonial Property (as defined in the PNA) without any ongoing periodic payment[21], and the parties are to retain their respective Separate Properties (also defined[22] and listed out in the PNA).  Moreover, it is pertinent to note that Article 5.4 further provides that “If either [H] or [W] were, notwithstanding the terms of this Deed, to make any application to a court for any financial provision (save in respect of any Children), [H] and [W] agree that the court should take fully into account the terms of this Deed” (emphasis added).

39.When these terms are read together properly and objectively, the effect of these terms clearly does not mean that the parties have also agreed not to make any interim financial application before a final ancillary relief order is made.  Put at the highest, as Mr Yim accepts, the parties only agreed through these terms that the court should take into account the terms of the PNA when considering any such interim financial applications which are plainly encompassed under Article 5.4.

40.In this context, it is important to note:

(1)  taking the effect of the terms of the PNA to the highest, any MPS order can only be said to be contrary to or inconsistent with its terms if that would result in W ultimately getting more than what she would have been entitled to under a division of the Matrimonial Property as provided in the PNA;

(2)  as recognised by the Judge, the trial judge can and should take into account the sums paid under the W’s MPS Order and make adjustments in ordering the final ancillary relief to make sure that the final order would fall within the scope of the division of the Matrimonial Property;

(3)  as fairly accepted by Mr Yim at the hearing in answer to this court’s question, there is nothing in the evidence to show that there is a chance that the W’s MPS Order made by the Judge might result in W ultimately getting more than she would have been entitled to in the division of the Matrimonial Property.

41.These matters have in fact been rightly considered and explained by the Judge at [65] ‑ [67] of the Decision as follows:

“65. In considering the effect of the Pre-Nuptial Agreement on the Petitioner’s MPS application, I have considered the terms therein. I do not find payment of maintenance pending suit to be contrary to the terms of the Pre-Nuptial Agreement. It is clear that on a proper reading of the Pre-Nuptial Agreement, the parties were only protecting their pre-marital assets. The terms of the Pre-Nuptial Agreement do not pre-empt parties from making ancillary relief applications on matrimonial assets in general.

66. As set out earlier in this Decision, I have taken into account the terms of the Pre-Nuptial Agreement when considering the Petitioner’s claim for maintenance provision on the mortgage repayments of Unit 1901. For reasons already given, having considered all factors, I have not allowed this item of expenditure when considering the proper amount of maintenance pending suit to be awarded.

67. In so far as any maintenance pending suit order may result in the division of assets contrary to the terms of the Pre‑Nuptial Agreement, I note it is always open to the trial judge to make the proper adjustments at the ancillary relief trial when considering the division of matrimonial assets. Given the Respondent’s substantial wealth and his ability to meet any interim maintenance order I may make, I am of the view an order of interim maintenance will not prejudice the Respondent’s position at the ancillary relief trial or at hearing of the Crossley Application.” (emphasis added)

42.The Judge in arriving at the conclusion that the W’s MPS Order was not contrary to the terms of the PNA had already borne in mind all the relevant terms of the PNA[23] and assessed in some detail the value of the assets which can be said to be possessed by W at this stage[24].  We find these findings to be reasonably if not in fact plainly open to the Judge to make, given the state of the evidence.  In this respect, it is pertinent to remind ourselves Hartmann JA’s observation that the court should only adopt a “broad-brush” approach in assessing the finances of the parties in an interim maintenance application in HJFG v KCY, infra, at [38]:

“38. Finally, it is to be noted that in applications for interim maintenance, when the amount to be paid is for a limited period only and not all of the evidence is necessarily before the court, it is not appropriate, nor indeed in most cases possible, for the court to conduct a detailed investigation into the finances of the parties. While, in order to determine what is or is not reasonable, some analysis is always required, that analysis can be conducted on a ‘broad-brush’ basis.” (emphasis added)

43.In our view, the Judge’s above conclusion is plainly correct.  In the premises, for the above reasons alone, the appeal must be dismissed.

44.We would now turn to consider the question of what is the proper approach of the court in dealing with an MPS application when there is an existing pre-nuptial agreement which is subject to challenge.

45.The court’s jurisdiction to award MPS is derived from section 3 of the Matrimonial Proceedings and Property Ordinance (Cap 192) (“MPPO”).  It provides the court a wide and broad discretion to order one party to pay the other such periodical payments for his or her “maintenance” as the court thinks “reasonable” during divorce proceedings.  As observed by Hartmann JA, the discretion is to be exercised to order payments “necessary to meet the recurring costs of living at whatever standard of living is appropriate” by “looking to the immediate and reasonable needs” of the partying seeking MPS.  The guiding principles in matters of interim maintenance have been summarized as follows:

(1)  The sole criterion to be applied in determining the application is “reasonableness”, which is synonymous with “fairness”.

(2)  A very important factor in determining fairness is the marital standard of living.  This is not to say that the exercise is merely to replicate that standard.

(3)  In every maintenance pending suit application there should be a specific maintenance pending suit budget which excludes capital or long-term expenditure, more aptly to be considered on a final hearing.  That budget should be examined critically in every case to exclude forensic exaggeration.

(4)  Where the affidavit or form E disclosure by the payer is obviously deficient, the court should not hesitate to make robust assumptions about his ability to pay.  The court is not confined to the mere say-so of the payer as to the extent of his income or resources.  In such a situation, the court should err in favour of the payee.

See: HJFG v KCY [2021] 1 HKLRD 95 (CA) at [33] ‑ [37].

46.Given the above observations and the wording of section 3 of MPPO, it is not disputed that the discretion is a very broad and wide one, which discretion has been described as one which is “as wide and as unfettered discretion as can well be imagined” in relation to a similar provision under the Matrimonial Causes Act 1973.[25]

47.The starting position under this issue must therefore be that there cannot be any restriction on how the court should exercise its discretion in considering whether or not to grant an MPS, other than that it is to be guided by the overriding principle of “fairness” and “reasonableness”.

48.Once understood in such a context, it is plain that no pre‑nuptial agreement, no matter how the terms are drafted, can per se exclude the court’s statutory jurisdiction and discretion in granting MPS if, after taking into account all the circumstances of the case, it comes to the view that is “fair” or “reasonable” to do so, both as to the granting of the order and the amount of the periodic payment to be ordered.  We do not think Mr Yim is submitting otherwise.

49.In the premises, the terms of any existing pre-nuptial agreement could only be a factor (being part of the relevant circumstances) that the court should take into account in assessing and weighing all the relevant factors together to decide whether or not it is fair to order MPS in the particular circumstances of each case.

50.We now turn to consider BN which Mr Yim has relied on heavily to support his contentions.  BN must be understood on its own facts.

51.In BN, the husband and wife entered into a pre-nuptial agreement and the marriage lasted for only some 15 months or so before the wife petitioned for divorce.  The court observed that this agreement was entered into freely by the parties with independent and separate legal advice and the principal object of the agreement (as in every case where a pre-nuptial agreement was signed) was “to avoid subsequent expensive and stressful litigation”[26]. In the divorce proceedings, the wife applied for MPS, and in that application indicated that she should not be bound by the terms of the pre-nuptial agreement.  It is pertinent to note that the husband in that case did not oppose the granting of MPS and through his counsel made a proposal as to the terms of that order which he said was in line with the terms of the pre-nuptial agreement.  The wife however did not accept it but asked for something different.

52.After emphasizing the well-established principle that the court should give regard and respect to parties’ autonomy and the court’s strict policy of requiring the demonstration of something unfair before it would allow parties to depart from the terms of a pre-nuptial agreement, Mostyn J observed repeatedly that the wife in that case had not advanced anything (in evidence or otherwise) in support of any basis for saying that it would be unfair for her to be bound by the terms of the agreement[27]. It was in such context that Mostyn J made the observation at [33] of the judgment (as quoted above) and stated that the court should seek to apply the terms of pre-nuptial agreement as “closely as practically as it can”, unless the wife could by evidence demonstrate “to a convincing standard, that she has a likely prospect of satisfying the court that this agreement should not be upheld.”  It is however also important to note that at [33], after finding that the wife had not been able to show any such evidence, Mostyn J continued to state as follows (as italicized below):

“33. In my judgment, when adjudicating a question of interim maintenance, where there has been a prenuptial agreement, the court should seek to apply the terms of the prenuptial agreement as closely and as practically as it can, unless the evidence of the wife in support of her application demonstrates, to a convincing standard, that she has a likely prospect of satisfying the court that this agreement should not be upheld. In the absence of any evidence of that nature from the wife, it is my judgment that it is appropriate for me to seek to apply the agreement to this case as closely as I can, provided that the wife is not left in any real predicament of need. In these circumstances, I am satisfied that the proposal advanced by Mr. Molyneux in paragraph 8 of his skeleton argument is reasonable and should be adopted. The fact that the parties may have agreed further things is no concern of mine. If the parties wish to make a voluntary agreement in relation to further aspects, that is a matter for them, but it is not something I am going to impose on the husband. It will be a matter for him.”

53.In other words, Mostyn J in fact granted the MPS in the terms as proposed by the husband as those were regarded to be in line with the terms of the pre-nuptial agreement.

54.In our view, when BN is considered in its proper context as explained above, it does not add anything further to the requirement that the court, when considering whether to exercise its discretion to make a MPS order, should take into account all relevant factors, including where one exists, the terms of a a pre-nuptial agreement, in deciding whether it is fair in all the circumstances of each case to grant MPS.

55.As to Mr Yim’s submission that, given Mostyn J’s observation that the court should apply “as closely as practically as it can” the terms of a pre-nuptial agreement, the court must treat a prima facie valid pre-nuptial agreement as a weighty or predominant factor in considering whether or not to make an MPS order, we are unable to agree.

56.The weight that should be given to a particular factor is generally a matter for the first instance judge after considering all the circumstances in each case.  Unless it is clearly and expressly stated, it is unusual and thus unlikely for a judge to intend to lay down in a particular case a general guide on what weight should be given to a specific factor in all other cases, in particular when the subject statutory discretion in issue is a wide one.

57.We do not think Mostyn J is intended to do so when he stated that the court would apply “as closely as practically as it can” the terms of a pre-nuptial agreement as submitted by Mr Yim.  Properly read in its context, we are of the view that what Mostyn J intended by that statement was only to say how the court should consider and apply the effect of the pre‑nuptial agreement as a factor in considering whether and on what terms the order should be made.  If the agreement is prima facie valid, in line with the autonomy principle (as Mostyn J had emphasized in BN), the court should insofar as practicable apply its terms “as closely” as possible in formulating the order.  But this does not mean that as a factor, it must be given a predominant weight.  Whether the terms of the pre‑nuptial agreement as a factor should be given predominant weight against all the other relevant factors must be left to the judge to decide on the particular facts of each case in considering whether it is fair to grant MPS.

58.In this respect, we should also address Mr Yim’s submissions that the court should consider as the first step in an interim financial application the question of whether the applicant can by evidence demonstrate, “to a convincing standard, that she has a likely prospect” that the pre-nuptial agreement should not be upheld.  Otherwise, Mr Yim contends, this factor would be rendered to be of “secondary” importance.

59.Again, we also do not regard what Mostyn J has said at [33] in BN as intended to set out such a straight-jacket step by step approach.  As it cannot be disputed that the terms of a pre-nuptial agreement would be a relevant factor that the court should take into account in the exercise of its discretion in an MPS application, it is obvious that at a certain point of the assessment, the court would have to consider the question of whether the agreement is prima facie binding on the applicant and thus whether any weight is to be given to its terms. 

60.In most cases, in our view, at which stage that exercise is to be carried out (ie, whether this should be considered as the first step or later) would not make any material difference as to the outcome, as the ultimate question in the overall exercise is still whether the order intended to be made is contrary to or inconsistent with the terms of the agreement[28].  For the same reason, we also do not agree with Mr Yim’s contention that if the assessment as to whether the pre-nuptial agreement is likely to be upheld at a later stage, it would render that factor to be of secondary importance.  When is the most appropriate stage to carry out this preliminary assessment exercise should be left to the judge to decide by reference to the particular facts of each case.

61.Finally, we should also deal with Mr Yim’s complaint under Ground 2(1) that the Judge had erred in failing or refusing to carry out a preliminary assessment as to whether W had adduced evidence to a “convincing standard” to show that there was a “likely prospect” that the PNA should not be upheld against W.  The complaint is focused on the Judge’s observations at [19] ‑ [22] of the Decision as follows:

“19. However, in instances such as the present case where there is a pending determination of the validity and enforceability of the nuptial agreement, the court must be mindful of this unresolved dispute and should not proceed blindly in adhering to the provisions of the nuptial agreement. I am of the opinion it is not proper or appropriate for this court to engage in any preliminary assessment on whether the impending Crossley Application is likely to be successful.

20. I am of the opinion that this court, in this particular case, should treat the Pre-Nuptial Agreement as one of the factors to be considered in arriving at a decision on the proper order to be made in respect of maintenance pending suit. This court should consider all factors, as one would in other maintenance pending suit applications, and then consider whether the Pre-Nuptial Agreement can or should be given any weight in all the circumstances. Fairness is, of course, an override principle when considering whether any weight should be attached to the Pre‑Nuptial Agreement.

21. This court’s primary consideration would be to consider the reasonable needs of the parties, the payer’s ability to pay, and the financial resources of the receiving party. Once this court has a preliminary view on whether the maintenance should be ordered and the sum to be ordered in absence of any nuptial agreement, this court should then consider the effect of the Pre‑Nuptial Agreement on the ultimate maintenance pending suit order. If the application of the Pre-Nuptial Agreement results in a great disparity on what this court finds to be a reasonable maintenance order to be made, or results in injustice to the parties, this court should be slow to give weight to the agreement at the interim stage.

22. Moreover, the court should bear in mind the parties’ ability to meet any subsequent orders made at the ancillary relief trial regarding overpayments or underpayment. I am of the view that if the application or adherence to the Pre-Nuptial Agreement will cause an ultimate redistribution of assets such that the subsequent trial court’s discretion on the proper distribution of marital assets is hindered or limited, this court should also be slow to give weight to the Pre-Nuptial Agreement at the interim stage. This is especially so in circumstances where there is a pending Crossley Application.” (emphasis added)

62.In this respect, in answer to the court’s question, Mr Yim has rightly accepted that the term “convincing standard” is a reference to the quality of the evidence W was required to adduce, and “likely prospect” means it is more likely than not on a balance of probability that the pre‑nuptial agreement should not be upheld.

63.There is some force in Mr Yim’s complaint that the judge had erred in failing to make an assessment based on W’s evidence as to the likelihood of showing that the PNA would not be upheld.  However, we are not persuaded that this is a valid ground of appeal, as the Judge in fact went on to consider the terms of the PNA as one of the factors and found (rightly so, as explained above) that the W’s MPS Order she intended to make was not inconsistent or contrary to its terms at [20] ‑ [22] and [65] ‑ [68] of the Decision.

64.In other words, the Judge’s said error, even if established, is not material to the Judge’s conclusion in making the W’s MPS Order: had she found that W had not been able to adduce such “convincing” evidence, and applied as closely as practically as she can the terms of the PNA (which she has rightly found not to be inconsistent with the making of an order), she would still have made the W’s MPS Order as she had already taken them into account when making the order; had she on the other hand carried out the exercise and found that there was such convincing evidence adduced by W, she would have most likely attached less weight to the terms of the PNA, and a fortiori, would have made the same order.

E.  DISPOSITION

65.For all the above reasons, there was no merit in any of the grounds of appeal, and we therefore dismissed the appeal with costs, to be taxed if not agreed.

66.It is therefore also unnecessary for us to deal with W’s Respondent Notice[29] which seeks to affirm the W’s MPS Order on additional or alternative grounds.

67.Before leaving this judgment, we find it necessary to make the following observation in relation to how leave to appeal was granted in this case.

68.As we raised at the hearing, it is most unusual for leave to appeal to this court to be granted on an open‑ended question like the Question.  Leave should only properly be granted on grounds of appeal which set out in a succinct and clear way the errors that are said to be committed by the judge as reasons for the appellate court to interfere with the judgment below.  This must still be the case even if leave is granted on the basis that it is in the interest of justice to do so.  Cf: section 63A of the District Court Ordinance (Cap 336), and paragraphs 20 ‑ 22 of Practice Directions 4.1.

69.In the present case, the Question by itself does not even set out what specific errors that H said the Judge has committed in the Decision, and the bases why this court should interfere with it.  It is also pertinent to note that the Judge has specifically found all the other intended grounds of appeal relied on by H in the leave application to be unarguable and refused to grant leave on any of those grounds.  See: the Leave Decision at [11], [16] ‑ [22].

70.This therefore has left H to draw up various grounds of appeal in the NoA, which contain 2 main paragraphs and 10 subparagraphs spreading over 4 pages, which he says are “pertaining” to the Question.  This in turn leads to the position that W has sought to argue (with some merits) in the appeal that many of these grounds are not open to H as no leave to appeal has been specifically granted on them.  It is most unsatisfactory that, given the leave to appeal requirement, this court is still put in a position of having to deal with arguments as to whether most of the grounds of appeal contained in the NoA are open to H as no specific leave to appeal was granted.

71.At the end of the day, for the sake of saving time and costs, we have in the above dealt with all the grounds on their merits.  However, in our view, the courts below should be reminded that they should only grant leave to appeal in relation to formulated specified grounds of appeal either on the basis that they are reasonably arguable or, even if they are not, it is in the interests of justice to do so.

Ms Mairead Rattigan SC and Mr Cristian Tsang, instructed by Rita Ku & Ser, for the respondent (petitioner)

Mr Eugene Yim and Ms Bonnie YK Cheng, instructed by Hugill & Ip, for the appellant (respondent)