Margareta Kristina Agell v. Lars Christer Agell and Another
Read the full judgment text of FCMC 817/1976 on BabelCite. This Family Court judgment before Mr. Registrar Barnett.
Divorce – Ancillary Relief – Maintenance Pending Suit – Earning Capacity – Wachtel v. Wachtel – The Petitioner, MARGARETA KRISTINA AGELL, applied for maintenance pending suit for herself and her three children aged 17, 13 and 10 following separation in July 1976. The Respondent, LARS CHRISTER AGELL, was employed by Volvo Company of Sweden earning a salary of $18,750 a month and was provided with a house. His employment terminated on 30th November 1976. Upon termination, he was paid $350,000 which he invested in a company formed by himself and the Co-Respondent, MARINA McCLUNG. The company raised a loan of $150,000 and rented premises. The Respondent had purchased an expensive yacht from England costing £30,000 and assigned it to the new company. He also has another boat worth $150,000. He is living rent-free in the house provided by Volvo until June 1977. The Respondent suggested the Petitioner move to cheaper accommodation to receive a $10,000 cash allowance from Volvo or work full-time. The Petitioner argued the Respondent knew his employment would terminate and should have made provision. The Court found the Respondent walked into the situation with his eyes open. The Court approached the problem on the basis that the Respondent is capable of earning $18,000 a month. Wachtel v. Wachtel lays down broad guidelines. The Court awarded $4,500 per month maintenance pending suit commencing 22nd October 1976, divided as $2,100 for the Petitioner and $800 for each child. Petitioner's costs were awarded. District Court – 1976
Legal issues: Quantum of maintenance pending suit
Outcome: Maintenance pending suit granted
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FCMC000817/1976 IN THE DISTRICT COURT OF HONG KONG HOLDEN AT VICTORIA DIVORCE JURISDICTION ACTION NO. 817 OF 1976 -----------------
----------------- Coram: Mr. Registrar Barnett in Chambers Date of Judgment: 9th day of December, 1976 Rodway (Fairbairn, Kwok & Wang) for Petitioner Pilbrow of Johnson Stokes & Master for Respondent ---------------------------------- Ancillary Relief ---------------------------------- 1. The petitioner has filed a petition for divorce and now applies for maintenance pending suit for herself and her 3 children who are aged 17, 13 and 10. 2. The facts of this case are somewhat unusual. Accordingly, I reserved my decision and now reduce it to writing. 3. It is not in dispute that the parties finally separated in about July 1976. At that time, the respondent was employed by the Volvo Company of Sweden, earning a salary of $18,750 a month and was provided with a house the cost of which was set at $10,000 by the company However, at that time the respondent was aware that his employment with Volvo was likely to terminate, and indeed, it terminated on the 30th November 1976. Upon such termination, the respondent was paid $350,000 by the company and this money the respondent has invested in a company formed by himself and the co-respondent. In addition, this company has raised a loan of $150,000, has rented premises at $17,000 per month. 4. Before the termination of his previous employment, the respondent had arranged the purchase of an expensive yacht from England which is costing in the region of £30,000. He has assigned this boat to the new company which will repay him the £10,000 already paid. He hopes to gain commission by the sale of other similar yachts. He also has another boat worth some $150,000 which he is seeking to sell. 5. The respondent came to an arrangement with Volvo, although which party actually instigated the arrangement is not clear, that he would be allowed to live in the house provided by Volvo rent free until the end of June 1977. Alternatively, if he moves out of the house before that date, he will be entitled to the housing costs of $10,000 in cash from Volvo for each full month until June 1977. In the event, the respondent has agreed to allow the petitioner and the children to remain in the house. 6. What all this means is that, although the respondent has a substantial amount of capital, none of the capital is at present producing income, the respondent has no other source of income, and he does not expect to have any substantial income for several months if not years in the future. The respondent has made no offer whatsoever. 7. For the petitioner, Mr. Rodway makes basically one point. He says that at all material times the respondent was perfectly aware that his employment with Volvo was due to terminate. It was terminated because the respondent did not wish to move to Djarkarta. However, knowing that by leaving his well paid job he would be jeopardizing his family, he should have made sure that proper provision was made for them. Upon the evidence, Mr. Rodway says that the respondent has shown on the one hand complete confidence in his financial future and on the other a lack of recognition that the petitioner and the children have a call upon him. The respondent has made no provision for his family and now must be shown that this requirement falls upon him. The fact that he is living with the co-respondent and her family and will have to contribute to their upkeep is a very secondary requirement. 8. The respondent has made what are termed as 2 possible practical solutions to the question of maintenance. First, he suggests that the petitioner and the children should move from the house into less expensive accommodation so that he will receive the $10,000 cash allowance from Volvo. He will then be able to pay the rent of new but less expensive accommodation and apply the balance by way of maintenance. To this suggestion Mr. Rodway for the petitioner has 2 objections. He says that it will lower the standard of living to which the petitioner and her children have become accustomed, and secondly, it may involve the petitioner in a further and unnecessary move to yet other accommodation for if the respondent at the end of June 1977 sets up the same plaint that he is now making, namely that he has no income, then it may not be possible for the petitioner to stay in the new premises but rather she will have to seek even less expensive accommodation. 9. The respondent's second suggestion is that the petitioner should work full time. At present, she is working part time at the International School as a teacher earning almost $2,200 per month and this entitles her to a 25% reduction from the school fees of her 3 children who attend the same school. If the petitioner was to work full time, she would then earn twice the salary and also be entitled to free education for her children. Again, Mr. Rodway objects saying that the petitioner has been used to a high standard of living, and that she should not be obliged to work full time merely to accommodate the respondent and supplement his lack of earning power. 10. It is also contended that, even had the parties not separated, the respondent would still have taken the course he has embarked upon and that the petitioner would willingly have gone along with him, accepting a temporary drop in her standard of living. 11. Upon careful consideration of the problem, I am persuaded that Mr. Rodway is right. It is true that in the short term the petitioner has the use of a luxurious house and that this house arises out of the respondent's previous employment. However, as I have already said, it is by no means certain whether the respondent or Volvo instigated this arrangement and in any event, it cannot be said that the respondent is doing anything actively to support the petitioner. Upon the evidence, it would appear that when this arrangement comes to an end in June next then the respondent will not be in a position to provide any support whatsoever for the petitioner apart from the payment of school fees amounting to some $23,400 p.a. which he says he is determined to find sufficient money to pay. The respondent walked into the situation with his eyes open. He must now accept the consequences. 12. I am of the opinion that I must approach the problem upon the basis that the respondent, who is a successful business man, is capable of and should be earning an income of some $18,000 a month. I have not been referred to any particular case except to the fact that Wachtel v. Wachtel lays down broad guide lines. In addition to that, I am aware that the same case says that it is necessary to view the situation broadly and see what award meets the justice of the case. 13. Apart from the figures already mentioned, the petitioner has some jewellery and some capital that should produce a small income. However, I do not consider these items relevant. 14. Mr. Rodway submits that the minimum award of maintenance in this case should be $5,000 per month. Looking at the situation broadly, I think this is about right. However, I have to take it into account the fact that the petitioner is enjoying the use of the comparatively expensive matrimonial furniture and the payment of the school fees. In the circumstances, I think the proper award is $4,500. 15. I accordingly order that the respondent should pay to the petitioner a sum of $4,500 per month for maintenance pending suit commencing from date of this application which is 22nd October 1976, that sum to be divided as to $2,100 for the petitioner and $800 for each of the children. 16. Petitioner's costs. 17. Fit for counsel. 18. Liberty to apply. 19. Dated the 9th day of December, 1976.
Representation: Rodway (Fairbairn, Kwok & Wang) for Petitioner Pilbrow of Johnson Stokes & Master for Respondent |