H v. L
Read the full judgment text of FCMC 9565/2002 on BabelCite. This Family Court judgment was delivered on 24 September 2005 before Deputy Judge C.K. Chan.
Matrimonial law – ancillary relief – lump sum – clean break – trust account – conduct – adultery – Matrimonial Proceedings and Property Ordinance – District Court – H (Petitioner) v L (Respondent) – Lump sum order of HK$144,000 granted – Costs to wife
Legal issues: Conduct · Trust Account · Ancillary Relief
Outcome: Lump sum order granted; Costs to wife.
Cites 1 case
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FCMC 9565/2002 IN THE DISTRICT COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION MATRIMONIAL CAUSES NO. 9565 of 2002 --------------------- BETWEEN
---------------------- Coram: Deputy Judge C.K. Chan in Chambers (Not open to the public) Dates of Hearing: 20-22 June, 15-19 August 2005 Date of Handing Down Judgment: 24 September 2005 ------------------------- J U D G M E N T ------------------------- 1.This is a trial on the petitioner wife’s application for ancillary relief against the respondent husband. For convenience, I shall refer to the petitioner as the wife and the respondent as the husband in this judgment. Background 2.The parties married on 19 March 1994. It was not in dispute that the husband has committed adultery during marriage. On 23 July 2002, the wife issued a petition for divorce. The ground for divorce had been amended for a number of times and eventually, the divorce suit went undefended and a decree nisi was granted on 4 November 2004 on the ground of adultery. 3.In the Notice of Intention to Proceed with Application for Ancillary Relief dated 19 November 2004, the wife asked for the following ancillary relief:
4.At the beginning of this trial, it has become apparent that both parties agree to a clean break and that the wife is now only pursuing the relief of a lump sum order. The Law5.The governing statutory provision for ancillary relief application can be found in section 7 of the Matrimonial Proceedings and Property Ordinance, Cap.192, which is as follows:
………. ……….” Conduct 6.The wife’s petition for divorce was based on the husband’s adultery, which was admitted by the husband. The husband’s infidelity may be regarded as morally reprehensible in the eyes of a layman, it is well settled law that for a conduct to be taken into account in deciding on the question of ancillary relief, that conduct has to be “obvious and gross”: Wachtel v. Wachtel [1973] 1 All ER. The single fact that the husband has committed adultery, without anything more, can not be regarded as such obvious and gross conduct that has to be taken into consideration in deciding on the present proceedings. Income, Earning Capacity, Property and Other Financial Resources Wife’s Present Income and Future Earning Capacity 7.The wife used to work for an international bank in Canada and then in Hong Kong for over a decade. Before she was made redundant in November 2001, her title with the bank was Manager-Relationship, mainly serving some big corporate clients. Her then income was in the region of HK$40,000 to $45,000 per month. 8.As from November 2001, the wife has been unemployed and was only able to get a part time administrative job with a college in October 2003 earning a monthly income of HK$4,000. 9.It is the wife’s evidence that she is now studying for two Master Degrees at a college, one for the Degree of Divinity and the other for the Degree of Christian Ministry. She expects to complete the two degrees sometime in 2007 the latest. 10.The wife testified that after she has completed the studies, she would look for a job in the church which she hopes would give her an income of about HK$10,000 to $20,000 a month. She doubted her ability to return to the banking industry or even if she could, she would not be able to secure anything close to what she used to earn. 11.It is the husband’s contention that the wife is in a position to earn more. 12.I understand that the wife is now aged 36 and was educated up to university level. She has been working in the banking industry for over a decade and must have accumulated vast experience and established extensive connection in this field. I think she is over-pessimistic in thinking she is unable to return to the banking industry, especially in view of the recent rebound of the Hong Kong economy. 13.I accept that initially, she may not be able to command a comparable income as in her previous job due to the fact that she has not been working full time in the past few years. But I am prepared to accept the husband’s contention that she does have an earning capacity. Although there is no evidence on the likely income that the wife would command if she has decided to go back to the banking industry, I think it would not be too unreasonable to assume a figure of $25,000 which would be about 60% of her previous monthly income. 14.The wife also testified that it was her wish to develop her career in Christian ministry. She expects her monthly salary in that field to be in the region of $10,000 to $20,000 even if she is going to work full time. Be that as it may, for the purpose of assessing the wife’s earning capacity, I am bound to assess the highest possible income she may reasonably be expected to command in the labour market, which is $25,000 per month in the present case. Wife’s Assets 15.The wife is the holder of a number of bank accounts. Mr. Li, acting for the wife, valued the total balance in all the accounts at $57,886.58 whilst Ms. Lan, counsel for the husband, put up a figure of $104,454.93. I tend to accept the calculation of Mr. Li because the figures that he was quoting were more up to date. 16.The wife is also a holder of a number of insurance policies, most of them are of investment in nature. During cross examination, the wife had difficulties in explaining the nature and the latest positions in those policies. Some of her evidence on the cash value was based on oral telephone enquiries with no documents in support. I find this highly unsatisfactory. 17.For the purpose of calculating the cash value in all those policies, counsel for the husband put forward a figure of USD 92,158.39 (HK$ 716,992.27). I am satisfied that two of the policies quoted by the husband (B311XXXXXX and B314XXXXXX) are no longer in existence and so the two respective sums of USD 254.9 and USD 528.47 should not be counted. Therefore, I am prepared to accept a figure of USD 91,375.02 (HK$712,725.15) as the wife’s current interest in all her policies. 18.The wife is also the owner of 2 landed properties. 19.The first property is a flat in Canada. Although there is no formal valuation on the current market value of this property, I am prepared to accept the value put forward by the husband which is CAD 174,000 (HK$ 1,124,040). I think the wife should have no complaint on this because the value as appeared in the schedule prepared by the wife‘s solicitor was even a bit higher than that. This is a net value because the mortgage of this property should have already been repaid in full. 20.The second property is in the Mainland the market value of which was agreed by the parties at RMB 570,000. It is common ground that this property is subject to an existing mortgage in the sum of RMB 525,000, leaving its net value at RMB 45,000, which is equivalent to HK$42,857. 21.The net total value of the 2 properties is HK$ 1,166,897. 22.The wife is also holding certain shares in the MTR with a current value at HK$17,056 (adopting an unit price of $16.00 on 17.8.2005). 23.According to the wife, she also holds a Registered Retirement Savings Plan in Canada with a current value at CAD 7,727.40 (HK$49,293). Summary of the Wife’s Assets 24.By way of summary, I am satisfied that the wife has the following assets:
Husband’s Income 25.The husband is now working as the principal of an international school. He has in fact three sources of income:
26.The total monthly income of the husband amounts to $118,120. I do not think there is any controversy in this part of the husband’s evidence as everything was well documented. Husband’s Assets 27.As regarding the husband’s assets, they are comprised of several bank accounts, 3 Mandatory Provident Fund accounts, 2 cars and 2 landed properties, one in Canada and the other is the Tai Lam Property. Apart from one bank account (which I shall refer to as the “trust account” and more will be said on it in the next paragraph), I do not think there is much challenge from the wife on the current value of the husband’s assets. Trust Account 28.The main challenge from the wife is on the husband’s Hang Seng Bank Account. 29.From the bank book entries covering the period between 9.12.99 and 24.2.04 (p.357 to 360 of the Trial Bundle), one can see that there were at least 20 deposits of HK$100,000 or above. As a matter of fact, most of those entries were in the region of $200,000 to $280,000. A few of them were even higher, with the biggest one at $410,000. A simple calculation will tell that the total deposits during that 4 years (only counting those sums at $100,000 or above) amount to $4,580,000 (hereinafter called “the disputed trust money”). 30.However, at the same period of time, there were also numerous large amounts of remittances from the account. My calculation is that there were a total 21 remittances out with amounts ranging from HK$78,380 to $308,260. 31.In his affidavit of means and his evidence in court, the husband explained that this was a trust account holding by him on behalf of his parents. He said his parents, being residents of Canada, had requested him to open an account to facilitate the transfer of money from Hong Kong to Canada. The arrangement was that he would sign a stack of blank remittance slips for his parents’ use. Whenever his parents wanted to make a remittance, his parents, in particular his father, would deposit certain amount into his account. Then his mother would use the already signed remittance slips to remit an equivalent sum of money, mostly in Canadian currency but sometimes in US currency, to the parents’ account in Canada. 32.I accept that at first sight, this arrangement may look dubious. However, after hearing the husband and his father who has also given evidence in court, and with the assistance rendered by the husband’s counsel who has led me through all the relevant bank records of the husband and his parents, I am satisfied that the disputed trust money in the husband’s account did come from his parents and more importantly, they all went back into the parents’ account in Canada. I have no doubt that this account of the husband was used solely by his parents to make remittances to Canada. I am satisfied that it was a trust account and the husband had no beneficial interest whatsoever in the disputed trust money. The only beneficial interest of the husband in this account only relates to the balance of HK$6,530.00 remaining therein at the time of trial. 33.In his final submission, solicitor for the wife urged this court to take notice that in the husband’s previous affidavits, he had allowed this account to be described as one of the accounts which were held by him beneficially. The husband explained that he had not given serious thought to the true nature of that account when those affidavits were sworn. 34.I accept the husband’s explanation. After going through all the banking records of the husband and his parents, I think it is beyond doubt that the money did come from the parents and did eventually go back to the parents in Canada. I do not think the husband’s mistake in his affidavits can change that fact. 35.Solicitor for the wife raised a further argument by relying on the recent case of Darach E Haughey and Another v. Lam Wai Ping Stella and Others (HCB 276/2002, Date of Judgment: 11 May 2005). The facts of this case can be very briefly summarised as follows: A husband has obtained a loan from his creditor and later transferred a substantial part of it into his wife’s account who in turn used that money to invest in a piece of property. After the husband’s failure to repay the loan on time, the creditor obtained judgment and later filed a petition for his bankruptcy. In the mean time, the investment turned out to be a bad one and the money was lost. The husband was adjudged bankrupt and the trustees in bankruptcy asked for the repayment of the money from the wife because the transfer of the creditor’s loan to the wife from the husband was a transaction undervalue and therefore was void against the trustees. The wife argued that the transfer from the husband was not a gift but rather she was holding the money on trust for the husband. That money has already been lost in the property transaction by the husband and so there was nothing for her to return. 36.The main issue in the Stella Wong case (as the solicitor for the wife liked to call it) was whether the wife was able to rebut the presumption of advancement. If she could not, then the transfer of the money from the husband would be an outright gift to her and she had to account for it in the husband’s bankruptcy because it was a transaction undervalue. 37.In his judgment, Deputy Judge Saunders ruled that the wife has failed to rebut the presumption of advancement and therefore, she had to account for it. At paragraphs 34-41, the Deputy Judge had the following to say:
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38.Therefore, it is a well established principle that if a husband transfers funds to his wife, if the purpose of the transfer is to defraud or avoid his creditors, then the parties can not use that illegal act to try to rebut the presumption of advancement. 39.Coming back to our present case, if I have understood the argument of the wife correctly, what the wife is saying is that the presumption of advancement arose when the money was transferred from the parents to the husband. The money should be treated as the husband’s if he should fail to rebut that presumption. Although there is evidence that the money in the husband’s trust account did eventually go back into the parents’ account in Canada, it was done for the purpose of evading Canadian tax by the parents. Since the purpose of the scheme was for such an illegal purpose, the husband is now not entitled to rebut the presumption of advancement by relying on such an illegal act. 40.I think the wife’s argument can not stand. First of all, there is absolutely no evidence from whatever source to prove that the parents were evading tax in Canada. The father of the husband did give evidence and explained that the scheme of transferring funds in this way was upon advice from his tax consultant in Canada just to avoid unnecessary questioning by the Canadian authorities. As far as he knew, there was no restriction for him to remit funds to Canada and those remittances were also not subject to any taxation. 41.I have no reason to disbelieve what the father has said. There is no evidence to contradict what he said. Furthermore, there was even a letter from his accountant (Exhibit R8) certifying that those transfers were not subject to Canadian income taxes. Although the said letter was not clear enough to say that the transfer of personal capital would not be subject to any form of taxation in Canada, I think it can be safely assumed that if any kind of taxes were payable, the accountant would certainly have spelt it out in the letter. 42.I am satisfied that there was nothing illegal in the transfer of money from the husband’s Hong Kong account to the parents’ accounts in Canada. I am also satisfied with the husband and his father’s evidence that the funds once in the husband’s account was trust money being held on behalf of the parents, which money did eventually go back to them. Therefore, those funds should not be counted as part of the husband’s assets. Cars 43.It is not in dispute that the husband owns 2 automobiles, a Mercedes Benz and a Peugeot. I think they are quite new and I am told that the hire-purchase loans obtained for their purchase will be paid off soon. Unfortunately, there is not much evidence on their present value. I can only do the best as I can in assessing their value. For the calculation of the husband’s assets, I will treat the 2 cars to have a combined value of HK$300,000. Summary of the Husband’s Assets 44.By way of summary, I will list out hereunder all the personal assets of the husband:
45.Before I leave the husband’s assets, I must remind myself that despite the relative affluence of the husband when compared with the financial well being of the wife, two important matters have to be borne in mind on the question of maintenance. 46.First, the MPF entitlement of the husband in the sum of HK$740,585.32 can only be realised upon the husband reaching the age of retirement, which I suppose will be at least 20 or 25 years from now. 47.Second, the Tai Lam Property (which accounts for over 70% of his total assets) was only acquired sometime in September 2001, i.e. after the separation of the parties. Therefore, not only that the wife has made no direct financial contribution, it would also be quite difficult for her to argue that she has somehow indirectly contributed to its acquisition. Financial Needs, Obligations and Responsibilities Wife’s Needs and Obligations 48.The wife has set out her monthly financial needs at p.247 of the Trial Bundle, which are as follows:
49.If the wife is still working in her former position as a bank manageress earning a monthly income of HK$40,000 to $45,000, her present monthly expenses of HK$38,548.10 can not be described as unreasonable. She was then self-sufficient and of course she was entitled to spend her income in whatever manner she liked. However, the reasonableness of the wife’s nowadays expenses have to seen in the light of her present financial position. I think it would be unreasonable for her to expect she can or should be allowed to maintain her previous lifestyle when her salary has been reduced from a sum of over $40,000 to the present one of $4,000, bearing in mind that such reduction of income has nothing to do with the husband. 50.I have gone through the wife’s expenses and I do feel that there must be rooms for their reduction to a more affordable level. 51.The wife is now spending $11,000 on rent. She is now living alone in a well established private housing estate in North Point. I do feel that if she could move to an older development, there can certainly be some savings to be made on this item. I would venture to suggest that a monthly rent of about $8,000 may be sufficient for the wife’s residence. 52.The wife is now paying $3,600 for the monthly premium of her insurance policies. I have nothing against the concept of insurance but at a time of financial stringency, I think this item should be the first one to go. 53.The wife is spending $3,000 on transportation a month. That is $100 per month. I think this can be cut to, say $2,000. 54.As for entertainment, the wife is spending $2,000 a month and I think that can be cut to $1,000. 55.The wife owns a property in the Mainland which is rarely used by her. I understand that the property is vacant most of the time although occasionally it would be used by her father or some relatives. She is paying $4,512.10 as monthly mortgage repayment and $300 as maintenance fees. I think the wife can make much better use of this $4,812.10 instead of spending on a property which she rarely uses. I will deduct this sum from her monthly reasonable expenses. 56.The wife is making offerings of $600 to the church per month. I do not think this is a necessity. I trust that her devotion to the Christian faith will not be affected in any way by withholding her monetary offerings to the church at a time of financial difficulty. 57.As to the wife’s proposed 2 trips per year, I think they are not essential items. However, in view of the fact that the husband had a habit of taking the wife to numerous extravagant overseas excursions during marriage, I think the wife should not be criticised if she should continue to enjoy an annual trip, which would cost her about $1,250 per month. 58.Based on the above calculations, I assess the wife’s reasonable needs at HK$21,286.00 per month. 59.In the latest affidavit of the wife (p.365 of the Trial bundle), the wife for the first time mentioned that she was in debt to her mother in the sum of CAD 27,472.54. This debt represents the money that her mother has paid on her behalf in respect of her Canadian property. She said she was not aware of the debt until she was told of this by her mother over a telephone conversation just before the trial. 60.Although there is no documentary proof of this debt, I do accept its existence. I understand that the Canadian property is under a mortgage and the rent received may not be enough to cover the mortgage repayment and other necessary expenses, e.g. government taxes and other outgoings. I do not find it surprising that the mother, when she was managing the property on the wife’s behalf, to have incurred some expenses which are to be reimbursed later. Husband’s Needs and Obligations 61.The parties separated in 2000. Shortly afterwards, the husband entered into cohabitation with his now girlfriend who later gave birth to 2 sons for him. The husband is now living with them and his parents in the Tai Lam Property. 62.The husband’s monthly expenses have been summarised as follows:
63.It can be seen from the above figures that the husband is barely able to make his ends meet. 64.At trial, solicitor for the wife has not raised any substantial challenge to the expenses of the husband except on a few minor items. The main argument of the wife is not so much that the husband has not incurred those expenses, but rather the husband has allowed himself to overspend resulting in a deficit in his balance sheet. 65.As far as the husband’s monthly expenses are concerned, one thing is clear from the evidence is that the husband has already stopped paying the pocket monies to his parents. Even if he is still paying, it is common ground that the parents are in a much stronger financial position than the husband and so if he really has to cut down on his spending, those are the items that have to go first. 66.As to other expenses, I think keeping two cars and two maids is a little extravagant under the circumstances. If need be, a further sum of about $7,000 can be saved. 67.Therefore, as far as the husband’s monthly reasonable expenses are concerned, I will accept a figure of $107,962.22. This will give the husband a monthly surplus of $10,157.78 ($118,120 – $107,962.22 = $10,157.78). 68.Apart from the recurring monthly expenses, the husband is also indebted to W. Limited in the sum of about $871,086.73. That loan was given to assist the husband in purchasing the Tai Lam Property. The husband is currently repaying the debt by monthly instalments. As far as I understand it, W. Limited is a family owned or controlled company. The chance of W. Limited asking for an immediate repayment of the loan is quite slim. Standard of Living Enjoyed Before Breakdown of Marriage 69.There is no dispute that during the marriage, both parties have enjoyed a relatively high standard of living. They attended horse races frequently. Eating out was a norm. Expensive cruise holidays were almost a yearly event. Although their living style can not be described as extravagant, it was no doubt a comfortable one. Age of Parties and Duration of Marriage 70.The husband is 39 and the wife 36. Both of them are now in their prime years. 71.They married in 1994 and separated in 2000. The marriage lasted for about 6 years. It can not be described as a long marriage. Physical and Mental Disabilities 72.There is no evidence that either party is suffering from any form of physical or mental disabilities. Contributions to the Welfare of the Family 73.It is common ground that the family was mainly supported by the husband financially. Despite the fact that the wife did have employment during the marriage, her financial contribution to the daily up keeping of the family was negligible. 74.The parties had no children and they had the service of a maid for most of the time. Therefore, the need for the wife (and of course equally the husband) to do any household chores was minimal. Maintenance Paid Since Separation 75.It is common ground that since separation, the husband has been paying interim maintenance to the wife for over 5 years. The latest amount was HK$12,000 per month starting from December 2002 up to the date of trial. Counsel for the husband said the total amount of maintenance that has been paid up to August 2005 amounts to HK$742,080. I have no reason to believe otherwise. If the payment in September 2005 is to be counted, that would make up a sum of $754,080 being the total maintenance paid by the husband since separation. Order on Ancillary Relief 76.Both parties agree that there should be a clean break. 77.After taking into account all the above factors, in particular, the following facts:
(6) the payment of $754,080 by the husband since separation I am of the view that it is time for the wife to seriously think about how she could stand on her own feet and find a way to support her own living. It may be necessary for her to find a gainful employment and to be self-supportive. 78.I understand that it may be her decision to devote her future life to Christianity, but she has to be content with a much lower living standard if it was indeed her choice. It would be totally unrealistic for her to expect a meal ticket from the husband for life or to maintain the same level of living standard that she used to enjoy. 79.As the parties have agreed on having a clean break, I am of the view that a lump sum order would be appropriate. I would order a lump sum of HK$144,000 payable by the husband to the wife. Together with the $754,080 already paid, that would make up a total of HK$898,080. 80.I would also allow the husband to pay the lump sum by 12 instalments of HK$12,000 each, payable on the 1st day of each month starting from 1st October 2005. The last payment will be in September 2006 and by that time, the wife should have finished most of her studies and that will be the time that she has to be self-sufficient. Costs 81.As for costs, I will grant an order nisi that costs be to the wife to be assessed if not agreed. The order will be made absolute upon the expiry of 14 days from the handing down of this judgment.
Representation: Mr. James Li of Messrs. James W. L. Li & Co., for the Petitioner Ms. G. Lan instructed by Messrs. T.K. Cheng & Co., for the Respondent |
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