Pak Lo Sai v. Luk Kam Choi

IN THE DISTRICT COURT OF HONG KONG

HOLDEN AT VICTORIA

CIVIL JURISDICTION

ACTION NO. 1950 OF 1971

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BETWEEN

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Coram: T.L. Yang, D.J.

Maintenance – whether deed of separation prevents wife from claming – deed contains no provision for maintenance – whether husband can still be guilty of willful neglect to maintain

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JUDGMENT

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1. The parties were married in 1962. There are no children of the marriage, save that the wife has a son of school age from a previous union.

2. For reasons which need not be gone into in these proceedings, the parties reached a separation agreement in August 1967 (hereafter called the August agreement), though the actual separation did not take place until the following month. By the same agreement the husband promised to give the wife $50,000, and it was intended by both parties that the separation was to be for a duration of three years only.

3. Shortly after the August agreement was entered into (it is not clear whether before or after the actual separation), the parties executed a formal separation agreement dated 13.9.67 (hereafter called the September agreement). The September agreement was prepared by a firm of solicitors and signed by both parties in the presence of a solicitor. There is no direct evidence whether the September agreement was intended to supercede the August agreement, but according to the wife’s evidence, both the terms as to the husband’s promise to pay her $50,000 and the term as to the three year period in the August agreement were preserved. This evidence is in my view unacceptable. It will be seen that neither term was mentioned in the September agreement; furthermore, it is clearly stipulated by clause 3 of this agreement that “the wife agrees with the husband that she will support and maintain herself.” Had it been the parties’ intention to preserve the terms respecting the payment of $50,000 and the three year period, one would have expected the solicitors to include these arrangements in the September agreement. I am satisfied that the September agreement superceded the earlier one.

4. After their separation the husband has from time to time given the wife various sums of money. From 1967 to September 1970, he gave her a total of $30,200. I find as a fact that these were entirely voluntary payments and not, as the wife would have the Court believe, payments in pursuance of the August agreement.

5. After the payment in September 1970, the husband stopped giving her any more money and she had had to live on loans. The husband and wife did not see each other again after the separation until November 1971 when they met outside the school of the wife’s son, when she told him she was in need of money and asked him why he had stopped paying her. In reply he told her to apply to the Court.

6. As to her living expenses each month, for herself she requires $300 for food, $50 to $60 for clothing, $50 for miscellaneous items, $150 for rent, electricity and water, and $100 for medical expenses as she is in poor health. She has a life insurance policy on which she has to pay US$68.80 (say HK$380) once every six months. She says that she requires $750 a month for herself. I accept this as a reasonable figure. She pays $60 per month for her son’s school fees and $190 per month for his boarding charges. She also gives her mother in China $100 per month and her aunt in Macau $50 per month.

7. According to a letter from the husband’s employers (which I accept as true) his income from 1.9.70 to 31.10.71 was $33,850.29, the average monthly income is therefore $2,417.87. The wife says his income is about $4,000 per month but there is nothing to support this estimate.

8. Having thus stated the facts, I now turn to the law. In this connexion I have to refer to Clause 5 of the September agreement which provides that nothing therein shall prejudice the right of the wife “to such or apply for maintenance in future or at any time if she so desires.” The question which confronts me is whether the wife, having entered into the September agreement, is still entitled to maintenance from the husband.

9. I begin with Tulip v. Tulip (1951) 1 All E.R. 91. In that case the husband and wife in 1932 entered into a deed of separation under which the husband covenanted to pay the wife during her life for her separate use £156 a year. The deed did not contain an undertaking by the wife not to take any proceedings for maintenance in the future. The husband made no default in payments, but since the deed his financial position had materially improved, while that of the wife had deteriorated. The learned trial judge Barnard, J., in dismissing the wife’s claim for maintenance on the ground of her husband’s wilful neglect to provide reasonable maintenance, said ((1951) 1 All E.R. 563, at page 565):

“In such a case as the present the wife must show that the husband has been guilty of some matrimonial misconduct. Of what matrimonial misconduct has the husband been guilty? He has faithfully carried out the terms of the deed. He has made his wife an allowance with which she was perfectly satisfied at the time, but in view of the present day cost of living she is not now satisfied with it. Can I possibly hold that he has been guilty of some matrimonial misconduct? I do not think I can. If I were to accede to the argument put forward for the wife it would not be safe for any parties to enter into an agreement. What counsel for the wife is seeking is to get the amount varied. The wife wants the best of two worlds. So long as she is satisfied with the agreement, it will remain at the amount specified, but if the husband’s means increase, she wishes the payments to be increased. He has agreed to pay and the wife has agreed to accept stands. On the facts before me I find it impossible to hold that the husband has been guilty of wilful neglect to provide reasonable maintenance ………”

10. On appeal Birkett L.J. said (1951) 2 All E.R., at page 97):

“I am of opinion that, in so deciding, Barnard, J., was wrong. With great respect to him, he seems to have ignored several essential matters. He seems to have decided that a sum for maintenance, agreed to in 1932, was unalterable so long as the husband continued to pay it and was willing to go on paying it. The real question for his determination was not that, but whether at the time the application was made to him the husband had wilfully neglected to provide reasonable maintenance. That must mean reasonable at the time of the application, in the light of all the circumstances then existing.”

11. And he went on to say (at page 98):

“With regard to the argument addressed to us that the wife was seeking to approbate and reprobate the agreement between the parties – blowing hot and cold, as it was said – I do not think there is any force in the argument on the facts of this case. Nowhere does the wife covenant not to make any application for maintenance in the future. The essence of the agreement was that the parties should live separate and apart, and none of her covenants does she seek to evade. All that she asks is that the husband’s covenant as to maintenance should be reviewed in the light of present conditions. The words of Lord Atkin in Hyman v. Hyman were ((1929) A.C. 629):

‘In my view no agreement between the spouses can prevent the court from considering the question whether in the circumstances of the particular case it shall think fit to order the husband to make some reasonable payment to the wife … The wife’s right to future maintenance is a matter of public concern, which she cannot barter away.’”

12. The principle is clear. It is simply that the existence of separation deed containing a covenant by the husband to pay the wife a fixed amount does not debar her from applying to the court for reasonable maintenance from her husband; the real question is whether at the time of her application the husband has wilfully neglected to provide reasonable maintenance; and the wife is entitled to have the husband’s covenant reviewed in the light of the existing circumstances.

13. Tulip v. Tulip appears to be inconsistent with Baker v. Baker (1949) 66 (pt. 1) T.L.R. 81 where the wife claimed maintenance from her husband after their consensual separation on the ground that he was guilty of wilful neglect to provide reasonable maintenance. It was held that unless some grave and weighty matter justifies a wife in leaving home, she is not entitled to maintenance save in the exceptional case of a consensual separation with an agreement attached to it that the husband will maintain her. In his judgment Lord Merriman, P., said (at page 82):

“There is no law involved in this case; it is merely an application of the principle that, if a wife is living separate and apart from her husband, it is not enough for her to give evidence that her husband had money and that she needed maintenance. The question is: What was the nature of the parting? If the wife can prove desertion, she is, of course, entitled to a maintenance order on that ground. If the separation was consensual, then, if she can prove – and Mr. Crispin (counsel for the wife) accepted that the onus was on the wife – that this was on the basis, express or implied, that the husband undertook to be responsible for her maintenance, she is entitled either to the agreed amount (if there was an agreed amount), or to a reasonable amount under the section, although she is living apart from her husband. But unless she can show, where the separation was consensual, that the husband had accepted a liability, expressed or implied, to maintain her, she has no case at all.”

14. These two decisions were reconciled in Pinnick v. Pinnick (1957) 1 All E.R. 873, the headnote of which reads:

“The parties were married in 1952 and separated by mutual consent in 1956. At the time of the parting there was no agreement, expressed or implied, on the part of the husband to maintain the wife nor was there any subsequent change in the parties’ circumstances. On a complaint by the wife that the husband had been guilty of wilful neglect to provide her with reasonable maintenance,

Held: the wife was not entitled to maintenance, since the separation was by consent and she had not proved any agreement, expressed or implied, by the husband to maintain her while she lived apart from him.

Per Curiam: the question on what financial terms a consensual parting has taken place, and the question whether some fresh need of the wife and notice thereof to the husband has occurred so as to entitled the court to find wilful neglect to maintain in spite of those terms are two separate and distinct questions. If this is so, there is no inherent conflict between the decisions in Baker v. Baker.”

15. In Pinnick’s case Lord Merriman P, said (at p.876):

“This raises acutely the question on what financial terms, expressed or implied, the consensual separation had taken place; and the further question whether, subsequently to the agreed separation, any change of circumstances had occurred so as to give the wife the right to complain of wilful neglect to provide reasonable maintenance for her. In substance the question is whether Baker v. Baker, correctly states the principles of law applicable to such a situation. If so there is no finding by the justices of any change of circumstances since the agreement to part. That, if there is such a change of circumstances, the jurisdiction of the court is not ousted by the terms on which a separation is agreed, or by the punctual performance of those terms, is settled by the decision of the Court of Appeal in Tulip v. Tulip.”

16. And he continued (at pages 877 – 878):

“It does not seem to us that there was any subsequent change of circumstances in the present case, since all the factors which were put forward in that behalf, such as the wife’s state of health and her not having worked for two years, were already known at the time of the parting. At this point we would observe that it is necessary to keep clearly in mind that the question of the financial terms on which a consensual parting takes place, and the question whether some fresh need of the wife and notice thereof to the husband has occurred so as to entitle the court to find wilful neglect to maintain in spite of those terms, appear to be two separate and distinct questions. If so, there is no inherent conflict between Baker v. Baker and Tulip v. Tulip.”

17. There is only one other authority which requires consideration. In Morton v. Morton (1954) 2 All E.R. 248, Singleton L.J. held (at page 254) that if there is a separation agreement containing a provision for maintenance, even though it be made some years ago, then it is the duty of one who has to consider the wife’s application for maintenance on the ground of her husband’s wilful neglect to maintain, to remember that there is such an agreement, to consider its terms, and to bear in mind that that agreement is binding on the husband, even if it does not prevent the wife from making such an application.

18. The learned judge goes on to say:

“It is, further, to be remembered that the wife, who has obtained a measure of certainty under the terms of the agreement, may be in a very much better position than she would have been if she had not had the agreement. If a time comes when the husband has less means and he finds it difficult to pay the amount which he has undertaken to pay, he is still bound by the agreement.

It follows from what I have said that I regard it of the utmost importance that the existence and the terms of an agreement should not be overlooked in considering whether an order should be made under this sub-section. The courts ought not lightly to upset, or to go behind, the terms of an agreement freely entered into between the parties.”

In the present case, though the September agreement did not contain a detailed stipulation as to maintenance for the wife, clause 5 of that agreement in my view quite clearly evinces an intention on the part of the husband to accept a liability to maintain her at some future date. By clause 3 of the agreement, the wife convenanted to support herself, but by clause 5 she retained her right to claim maintenance “at any time if she so desires.” It has not been argued, nor can it be properly argued, that the phrase “at any time if she so desires” means that she is entitled to maintenance even if there has not been a change in circumstances. If that were the meaning of the phrase, it would make clause 3 both redundant and meaningless. The only reasonable construction that can be given is the she would be entitled to maintenance should the need arise at some future date, but until there was a change in circumstances giving rise to such need, she was to support herself. There is however no evidence of a change in circumstances. At the time of the September agreement, she could not have expected any money from her husband because the August agreement was superceded. Her position at that time must be such that she was capable and willing to support herself without any assistance form her husband. The sums of money which she received from her husband subsequent to the September agreement was in her own words entirely voluntary; and they must have been unexpected at the time the separation agreement was entered into. In these circumstances the husband’s discontinuances of those voluntary payments does not amount to a change in circumstances within the meaning of the authorities cited.

19. The wife’s claim is dismissed.

22.2.72

Solicitors for the plaintiff: W.I. Cheung & Co.