Dorothea Isobel Park v. Jchn Mitchell Park and Another

FCMC000760/1975

IN THE DISTRICT COURT OF HONG KONG

HOLDEN AT VICTCRIA

DIVORCE JURISDICTION

ACTION NO. 760 OF 1975

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Coram: Mr. Registrar Stapp in Chambers.

Date of Judgment: 18th July 1977.

Miss J. Leong (Helen A. Lo & Co.) for Petitioner.

Mr. R. Mills-Owens (Johnson, Stokes & Master) for 1st Respondent.

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DECISION

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1. The petitioner-wife (hereinafter called "the wife") and the 1st respondent-husband (hereinafter called "the husband") were married on 5th March, 1960. The husband, a medical practitioner, was then aged 35 and had been married once previously. The wife, an education officer, was then aged 41 and had not been previously married. They have one daughter, Dorothy Ilia Park, born 10th December, 1960.

2. In 1959, prior to the marriage, the intended matrimonial home at 28 Lugard Road, The Peak, was purchased in the husband's name. After the marriage, the wife continued working for the Hong Kong Government as Head-mistress of the Peak Government Junior English School, until she resigned in 1962, in order to care of her husband and child and to look after the home.

3. At the beginning of 1973, the husband left the matrimonial home and has since been cohabiting with the 2nd respondent, whom he proposes to marry, and apparently they hope to have a family. As a result, the marriage was dissolved in January, 1976.

4. The wife and daughter have continued living in the matrimonial home, although the daughter has been attending boarding school in England since September, 1976, and since then has only lived in the home whilst on holidays.

5. As usual, the matrimonial home is the most important capital asset. It was purchased for $100,000, of which $40,000 was then paid by the husband, and the balance of $60,000 was advanced by the Hong Kong & Shanghai Bank Ltd., on mortgage to the husband. The wife contributed $11,580 towards that sum of $40,000. As a result of soaring real estate values, valuations now indicate that it is probably worth in excess of $2 million. It has been agreed by the husband and wife that the home be sold. If the highest bid is less than $2 million, the husband shall have the option of retention upon paying the wife her proportion of such bid. It remains for the Court to decide what proportion of the proceeds of the proposed sale or figure for exercise of option is due to the wife, as a lump sum payment under S.4(1)(c) of the Matrimonial Proceedings and Property Ordinance (Cap. 192) to consider the other assets, and to order periodical payments for the wife and daughter.

6. In Wachtel v. Wachtel [1973] 1 All E.R. 829 commencing at the foot of 839 Lord Denning M.R., in delivering the judgment of the Court of Appeal, stated, inter alia: "If we were only concerned with the capital assets of the family, and particularly with the matrimonial home, it would be tempting to divide them half and half, as the judge did. That would be fair enough if the wife afterwards went her own way, making no further demands on the husband. It would be simply a division of the assets of the partnership. That may come in the future. But at present few wives are content with a share of the capital assets. Most wives want their former husband to make periodical payments as well to support them; because, after the divorce, he will be earning far more than she; and she can only keep up her standard of living with his help. He also has to make payments for the children out of his earnings, even if they are with her. In view of these calls on his future earnings, even if they are with her. In view of these call on his future earnings, we do not think she can have both - half the capital assets; and half the earnings." Later he stated: "Giving it the best consideration we can, we think that the fairest way is to start with one-third of each."

7. There is considerable evidence before me of the matters to be considered under S.7 of Cap. 192 in relation to S.4, and I will briefly refer to a number of them.

8. The husband and wife lived together for slightly less than 13 years, which is not a life-time, as Mr. Mills-Owens pointed out. On the other hand, the wife gave up a successful career as a headmistress, which eventually would have entitled her to a substantial pension if she had continued until normal retirement. She contributed a considerable part of the down-payment for the purchase of the marital home, which was 11.58% of the total purchase price, and continued working until 1962. In 1963, she lent her husband $83,000, which represented her retirement gratuity and life savings, which considerable sum was subsequently lost in an unsuccessful knitting-business venture. That loan does give some indication of the degree of trust the wife had in her husband at that time.

9. The husband's conduct later on, when he caused the break-up of the marriage, falls short of being "gross and obvious" (Cuzner (formerly Underdown) v. Underdown [1974] 2 All E.R. 315). It is pointed out that he has continued to maintain his wife and daughter, without the need of any formal order. On the other hand, there is no evidence that any blame attached to the wife for the breakdown of the marriage. These matters are of some relevance to the orders sought for the wife. (Rogers v. Rogers [1974] 1 W.L.R. 709)

10. It was submitted by Mr. Mills-Owens that the wife has an earning capacity, and should now be seeking to use her professional skills and experience. Miss Leong pointed out that the wife is now 58 years old, and has not worked for the past 15 years, after she gave up work to attend to her home and family. In addition, she suffers from back trouble, which somewhat limits her activities. In the circumstances I do not consider that it would be reasonable for the husband to expect her to seek gainful employment, in order to ease his financial burden (Le Roy-Lewis v. Le Roy-Lewis [1954] 3 All E.R. 57).

11. Having regard to all the relevant circumstances of this case, I have concluded that the petitioner-wife is entitled to one-third of the proceeds of sale or option figure in respect of the matrimonial home.

12. Agreement has been reached as to certain life policies and furniture, and I agree with the submission by Mr. Mills-Owens that the remaining assets tend to balance out fairly between the parties. I therefore make no order in relation thereto. Nor do I consider it expedient to make any specific order concerning the half-rate income which will be derived by the husband for 3 years after he retires from Dr. Vio & Partners, as this will clearly be needed by him to meet financial needs, obligations and responsibilities over such period.

13. I turn now to periodical payments claimed for the wife and daughter. The husband is a senior partner in the above medical partnership. The partnership owns a small tax-minimization company known as Fingal Enterprises Limited. He is currently receiving an average total nett income from those two enterprises of just over $24,300 per month after tax, although there may be a slight drop shown this year when the final figures are to hand. He has to pay his first wife $2,500 per month which, Miss Leong fairly conceded, should be deducted from such nett income, before considering what periodical payments to order for the wife and daughter.

14. As a result of the agreement concerning the matrimonial home, the wife will receive a large sum of money, which will enable her to obtain very comfortable flat accommodation. She will not have to face as many outgoings as in the case of the large matrimonial home. However, there will still be such outgoings as a part-time amah, insurance, fares for leave in England, running a car and club-membership (perhaps curtailed) in addition to the usual personal and household expenses. It is necessary, of course, to consider, inter alia, the standard of living enjoyed by the family before the break-down of the marriage. Considering all the relevant circumstances, I conclude that a sum of $6,000 per month for the wife is appropriate. I further conclude that a sum of $2,000 per month is adequate for the daughter at this stage, although obviously her expenses may increase, if she later goes on to university. I therefore order such periodical payments for the wife and daughter, with effect from 1st June, 1977. In addition the husband has agreed to supply the daughter with a return economy airline ticket from the United Kingdom annually.

15. I reserve the question of costs for further submissions by counsel.

16. Dated the 18th day of July 1977.

Representation:

Miss J. Leong (Helen A. Lo & Co.) for Petitioner.

Mr. R. Mills-Owens (Johnson, Stokes & Master) for 1st Respondent.