K v. K

HCMC 2/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MATRIMONIAL CAUSES NO.2 OF 2004

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BETWEEN

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Before : Hon Hartmann J in Chambers

Date of Hearing : 3 February 2005

Date of Judgment : 3 February 2005

Date of Handing Down Reasons for Judgment : 21 February 2005

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REASONS FOR JUDGMENT

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Introduction

1.In 1998, the petitioner (the judgment debtor), a retired police officer in receipt of a government pension, instituted divorce proceedings against his wife, the respondent (the judgment creditor).  During the course of the proceedings it was agreed that the petitioner would pay maintenance to the respondent in the sum of $3,000 per month.  On 6 November 1998, upon the making of the decree nisi, that agreement was made an order of court and that order, unamended, still stands.

2.From August 2001, however, the petitioner failed to pay the respondent any of the maintenance due to her in terms of that order.  In the result, by way of a summons issued on 5 January 2004 — later sought to be amended by a second summons issued on 13 August 2004 — the respondent sought the assignment or transfer to her of so much of the petitioner’s government pension as was necessary to settle the arrears of maintenance due to her and to secure payment of her current maintenance.

3.When the matter came before me on 3 February 2005, although duly notified, the petitioner chose not to attend the hearing.  I therefore proceeded in his absence, agreeing to the amendment of respondent’s summons.

4.The evidence before me revealed that, as at 11 November 2003, the petitioner had been in receipt of a continuing government pension in an annual sum of $32,355.67, this making for a monthly payment to him of $2,696.31.  There was no evidence as to whether the petitioner had any form of employment or any income other than his pension.

5.Having heard submissions from Mr Clough, respondent’s counsel, I refused to exercise my discretion in terms of s.12 of the Matrimonial Proceedings and Property Ordinance. Cap.192, to enforce payment of those arrears of maintenance that had fallen due more than 12 months before the respondent’s proceedings had been instituted on 5 January 2004.  In the result, all arrears of maintenance which had fallen due before 1 January 2004 were remitted.

6.But that being said, I did make an order in terms of s.23(1) of the Crown Proceedings Ordinance, Cap.300, as read with s.12(1) of the Pensions Ordinance, Cap.89, and O.77 r.16 of the Rules of the High Court, that the Director of Accounting Services pay so much of the petitioner’s pension to the respondent as was required to serve two purposes; first, to settle the arrears of maintenance which had fallen due since 1 January 2003 and, second, to secure all current maintenance falling due.

7.I now give my reasons for these decisions.

The arrears

8.S.12 of the Matrimonial Proceedings and Property Ordinance directs that there shall be no entitlement to claim arrears of maintenance which have fallen due more than 12 months before commencement of proceedings unless the court, in the exercise of its discretion, grants leave.  In this regard, s.12 reads :

“	(1)	A person shall not be entitled to enforce through the court the payment of any arrears due under an order made by virtue of section 3, 4(1), 5(2), 8(5) or 8(6) without the leave of the court if those arrears became due more than twelve months before proceedings to enforce the payment of them are begun.
	(2)	The court hearing an application for the grant of leave under this section may refuse leave, or may grant leave subject to such restrictions and conditions (including conditions as to the allowing of time for payment of the making of payment by instalments) as that court think proper, or may remit the payment of such arrears or of any part thereof.”

9.S.12 gives statutory form to a long-standing practice, one inherited from the ecclesiastical courts, that, as a general rule, arrears of maintenance are not to be enforced (by whatever means) if they have remained outstanding for more than 12 months : see, for example, Bernstein v. O’Neill [1989] 2 FLR 1 per Ewbank J.

10.As to the reason for the practice, in Russell v. Russell [1986] 1 FLR 465, Sir John Donaldson, Master of the Rolls, observed (at 473B) that :

“	The philosophy underlying the rule must … have been that if the complainant waited a year to seek enforcement of the order, she did not need the money, or at least had managed well enough without it, and the husband might reasonably regard the liability as something which he could forget about.”

11.An applicant must therefore take reasonably timeous steps; that is, within a year, to assert his or her right to maintenance unless there is good reason otherwise.  An applicant cannot simply let the arrears accumulate, making do without them, until, with more than a year elapsed, perhaps an oppressively large capital debt has arisen.  Maintenance after all is invariably required for current needs and is an obligation which must be viewed within its social context.

12.Accordingly, in giving effect to s.12, our courts must proceed on the general principle that ‘stale arrears’, as Sir John Donaldson described them, are not to be enforced unless good reason is demonstrated or special circumstances are shown.

13.What will constitute a good reason or give rise to special circumstances will, of course, depend on the facts of each case.  No abstract rule can encompass all possibilities.

14.However, of relevance to the present case, there is authority that doing nothing for more than 12 months because the person liable to make payment is an irregular or reluctant payer will not constitute special circumstances : see Dickens v. Pattison [1985] FLR 610.

15.In the present case, the respondent, in an affirmation filed in support of her claim, could only say that she had requested the petitioner to pay the maintenance due to her but he had repeatedly refused.  She had therefore taken no action in the hope that he would nevertheless pay, sparing them both the expense and aggravation of litigation.  That, in my judgment, in respect of the stale arrears, cannot constitute a good reason for the respondent’s failure to assert her rights nor can it give rise to any special circumstances.  It may have been different if the respondent, for example, had been able to show that she had been persuaded to withhold action because the petitioner had complained of purely temporary cash flow problems or had misrepresented his true financial position.  But she could show nothing more than a failure to act in the face of a refusal to pay.

Securing current maintenance

16.The Matrimonial Proceedings and Property Ordinance allows for the attachment of a person’s income to satisfy a maintenance order.  In this regard, s.28(1) reads :

“	Where a maintenance order has been made against a maintenance payer and—
	(a)	(i)	a court is satisfied that the payer has without reasonable excuse failed to make any payment which he is required to make by the maintenance order; or
		(ii)	a court is satisfied that there are reasonable grounds to believe that the payer will not make full and punctual payment in compliance with the maintenance order; or
		(iii)	the payer and designated payee agree to the making of an order under this section; and
	(b)	there is any income capable of being attached payable to the payer,
	the court may … order the income to be attached as to the whole or part of the amount payable under the maintenance order and the amount attached to be paid to the specified payee.”

17.For the purposes of s.28(1)(b), I was satisfied that the petitioner’s pension constituted an income capable of being attached.  While s.12(1) of the Pensions Ordinance exempts government pensions from attachment, the exemption does not apply to —

“	satisfying an order of any court for the payment of money towards the maintenance of the spouse or former spouse or minor child of the officer to whom such pension gratuity or other allowance was granted.”

18.I was further satisfied that the petitioner’s pension was capable of being assigned or transferred to the respondent to satisfy both the non-remitted arrears (s.28(1)(a)(ii) of the Matrimonial Proceedings and Property Ordinance) and the current maintenance falling due (s.28(1)(a)(ii)).

19.In deciding whether, in respect of current maintenance, there were reasonable grounds for believing that the respondent would not comply with the terms of the maintenance order made on 6 November 1998, I was guided by s.28(1A) of the Matrimonial Proceedings and Property Ordinance which directed me to take all relevant circumstances into account including —

“	(a)	…
	(b)	the payer’s past record and conduct in connection with the making of maintenance payments to the payee pursuant to the maintenance order or an undertaking in any proceedings; and
	(c)	the risk of the payer dissipating his property.”

20.The respondent’s past record of honouring the order of 6 November 1998 spoke for itself.  He had failed — indeed, refused — to pay maintenance for several years.  There was nothing before me to suggest that his intransient attitude had changed or would change.  The evidence indicated that the respondent would continue to be frustrated in securing her entitlements under the order of 6 November 1998.  It was for this reason that I ordered that the Director of Accounting Services should pay so much of the petitioner’s pension to the respondent as was necessary, not only to secure the arrears which had fallen due since 1 January 2003, but also to secure all current maintenance falling due to her.

Petitioner, in person, absent

Mr Neal Clough, instructed by Legal Aid Department, for Respondent

Ms Christina Lee, instructed by Department of Justice, for the Director of Accounting Services