Luk Chan Lai Wah v. Luk Chi Man and Another
Read the full judgment text of FCMC 457/1972 on BabelCite. This Family Court judgment before Mr. Registrar Jones.
Divorce – maintenance pending suit – child support – financial circumstances – property disposition – Matrimonial Proceedings and Property Ordinance s.17 – District Court – Petitioner awarded maintenance pending suit of $750 per month and child periodical payments of $350 per month – Court found disposition of property to father intended to defeat claims – Respondent income assessed at $2,700 per month including rental income – Petitioner expenses $1,600 per month – Costs awarded to petitioner.
Legal issues: Assessment of maintenance pending suit and child support · Effect of property disposition under s.17 Matrimonial Proceedings and Property Ordinance
Outcome: Maintenance pending suit awarded $750 per month; Child periodical payments awarded $350 per month; Petitioner entitled to costs.
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FCMC000457/1972 IN THE DISTRICT COURT OF HONG KONG HOLDEN AT VICTORIA DIVORCE JURISDICTION ACTION NO. 457 OF 1972 -----------------
----------------- Coram: Mr. Registrar Jones in Chambers. Date of Judgment: 7th April, 1973. ----------------- DECISION ----------------- 1. This is an application by the petitioner for maintenance pending suit and for periodical payments for the child of the family. 2. The parties were married on the 23rd December 1961 and separated in March 1972. There is one child of the family Luk Po Chau aged 10. 3. A petition for divorce was filed on the 16th November 1972 alleging two grounds viz. adultery under section 11A(1)(a) and behaviour under section 11A(1)(b) of the Matrimonial Causes (Amendment) (No.2) Ordinance 1972. The 1st respondent has filed a notice of intention to defend the proceedings but todate no answer has been filed. 4. The 1st respondent was originally represented by solicitors but at the outset of this application filed a notice of change to act in person. 5. An affirmation of means was filed on behalf of the petitioner but no affidavit had been filed by the 1st respondent. However, the 1st respondent gave evidence on oath stating that he is at present employed in the sales department of a shipping company, Mesageries Maritimes as a canvasser earning $1,450 per month. Apart from double pay that he receives at Chinese New Year he does not receive any commission, bonuses or payments for overtime. In addition the 1st respondent receives rent of $250 per month in respect of a flat which he owns in Tai Kok Tsui. Accordingly his total income per month amounts to $1,820. The 1st respondent has two bank accounts where there is at present a total credit balance of just over $2,000. He has one thousand shares in Success Holdings, valued at $5.50 per share but has no savings bank accounts or fixed deposits. The 1st respondent owns a flat in Star Court which he purchased in 1966 for $70,000 of which sum he paid a deposit of about $25,000 - $26,000, the balance being raised by mortgage. The 1st respondent said that $39,000 is outstanding in respect of the mortgage and estimates that the present value of the flat is between $100,000 to $200,000. The flat is let at a rent of $1,800 per month but the agreement is with the 1st respondent's father and not with the 1st respondent. From the sum of $1,800 received by the 1st respondent's father a monthly sum of $898.80 is deducted for the mortgage repayment. The flat in Tai Kok Tsui was purchased about 10 to 11 years ago for $15,000.00 but the 1st respondent says that the present price of the flat would be very low for reasons that were not convincing. The 1st respondent said that he owns no other properties but in cross examination admitted that he was at one time the owner of a flat in Austin Mansion, Kowloon which was sold in 1964 or 1965. He said that he also purchased a property in Coral Court in December 1970 which he sold in May 1972 for $180,000, out of which money he purchased a flat at 14C Broadway Street where he now lives with his father and step mother. This flat was sold by the 1st respondent to his father for $120,000 on the 8th December 1972 but no money passed. A further property at one time owned by the 1st respondent Kiu Yip Mansion was sold for $50,000. 6. The 1st respondent has free accommodation and his only monthly expenses are for his food, clothing, travelling expenses and medical fees which he assesses to be about $800 per month which I find to be a rather generous figure. The 1st respondent at present pays to the petitioner a voluntary sum of $600 per month. 7. The petitioner lives alone with the child at the former matrimonial home, a flat at 23 Kim Wah St., 1st floor, North Point. The flat is in the name of the petitioner. She is not working which she claims is due to mental weakness and insomnia. She said that she worked full time during the marriage in a wig factory earning $450 per month. Apart from the $600 that she receives from the 1st respondent the petitioner has no other income and has to borrow money from her younger sister to pay for expenses over and above the monthly payment she receives from the 1st respondent. The petitioner's total monthly expenses amount to $1,600 made up as to food $600, electricity $100, clothing and medical expenses $300, school fees and miscellaneous expenses incidental thereto $100 and rent $500. Formerly there were two sub-tenants of the flat but they have now moved as there is a likelihood of the premises being demolished in the near future. 8. Although at one time alimony pending suit now called maintenance pending suit was awarded in an amount that would bring the income of the wife up to approximately one-fifth of the joint incomes there is no hard and fast rule as to assessment for each case now falls to be decided upon its own merits. Accordingly the court has an unfettered discretion to award what figure it considers to be just. 9. It is significant that the petition for divorce was filed on the 16th November 1972 and the property 14C Broadway Street was sold by the 1st respondent to his father on the 8th December 1972. It is clear in the absence of evidence to the contrary that this disposition was made with the intention to avoid or to defeat the claims of the petitioner as provided for in section 17 of the Matrimonial Proceedings and Property Ordinance. Such a disposition can be taken into account when considering an application for maintenance pending suit although it will be open to more severe scrutiny in later proceedings for ancillary relief. 10. I have found that the 1st respondent's total income is $1,820 per month but although he is the owner of the flat at Star Court he has voluntarily allowed his father to receive the rent of $1,800 per month. As a result taking into account the deduction for the mortgage repayment the 1st respondent's total income in these circumstances should be in the region of $2,700 per month. On the other hand the petitioner has no capital assets of any description and relies entirely upon the 1st respondent's voluntary payment and her sister for support. In these applications it is the practice to consider what the petitioner is actually receiving rather than to take into account her potential earning capacity and I shall adopt this approach to the present case. The 1st respondent's income is admittedly not high, but he is nevertheless possessed of considerable capital assets in the nature of property to which I have already referred. 11. On the evidence before me the sum of $600 per month which is being paid is quite clearly inadequate to maintain the petitioner and the child. In all the circumstances I am of the opinion that the correct figure to award the petitioner for maintenance pending suit is the sum of $750 per month and for the child a periodical payments order of $350 per month, payments to commence on the 1st April 1973. The petitioner is entitled to costs and there will be a certificate for counsel. 12. Dated this the 7th day of April, 1973.
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