C v. H

FCMC No. 315/2008

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES NO. 315 OF 2008

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Coram: Deputy District Judge K.W. Wong in Chambers (not open to public)

Date of Hearing: 24^th December 2008

Date of Handing Down Written Decision: 30^th December 2008

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DECISION

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1.This is the application of the Respondent wife (“Wife”) against the Petitioner husband (“Husband”) by summons dated 26^th August 2008 for an order that:

i)   the Husband do pay her maintenance pending suit (“MPS”) at the rate of HK$25,536 per month forthwith and thereafter on the first day of each and every month until further order; and

ii) the Husband do pay the Wife a sum of $29,466 being the outstanding balance of maintenance for the children for the period from June to August 2008.

The Grounds of the Parties

2.The parties’ cases are simple. The basis of the Wife’s claim is this. According to the Husband’s Form E affirmed on 6^th March 2008, his reported expenses for the household and the three children of the family were respectively $20,186 and $5,350.  The aggregate of these two items is $25,536. These expenses include repayment of the monthly mortgage instalment of the matrimonial home ($11,914) and the salary of the domestic helper ($3,800). Although the parties separated some two years ago, the Husband lived with the Wife and the children under the same roof. He continued to pay the family expenses and thus spent $25,536 every month on the family. He only moved out on or about 1^st June 2008. Accordingly, the Wife considers the Husband should continue to pay her this sum of $25,536 as MPS. Since the Husband only pays the mortgage instalments and the helper’s salary as from June 2008 and stopped everything else, the shortfall, she claims, is $9,822 ($25,536 - $11914 - $3,800) per month. She considers that the Husband is liable to repay her the shortfall for June, July and August 2008 totalling $29,466 (3 x $9,822).

3.It is not in dispute that the Husband terminated the employment of the domestic helper in September 2008. As a result, the Wife has to engage another one to assist her look after the three children of the family, the custody of which has been granted by consent to the Wife pursuant to my order dated 26^th June 2008.

4.The Husband’s defence is that there has been an increase in his expenses since his moving out of the matrimonial home. Two of the major additional expenses are the monthly rental of $12,000 for the flat he is now residing and his payment to his parents of $4,000 per month. The latter has been increased from $1,000 as previously stated in his Form E.

5.He can only afford $15,000 per month and therefore offers to pay this amount as the three children’s MPS. The Wife disagrees. She challenges the reasonableness of the two major additional expenses.

The Law

6.The law on MPS is rather settled. Before today’s hearing, both Miss Hui, solicitor representing the Husband and Mr. Yip King Sum of counsel for the Wife have submitted their respective written skeleton. There does not appear to me to be any dispute as to the legal principles applicable to the granting of MPS in their submission. It is useful for the purpose of the present proceedings to repeat the same below.

7.The starting point is section 3 of the Matrimonial Proceedings And Property Ordinance, Cap 192 (“MPPO”). It stipulates that:

“On a –

(a)    petition or joint application for divorce; or

(b)    petition for nullity of marriage or judicial separation,

the court may order either party to the marriage to make to the other such periodical payments for his or her maintenance and for such term, being a term beginning not earlier than the date of the presentation of the petition or making of the application and ending on the date of the determination of the suit, as the court thinks reasonable.”

8.Rule 78 of the Matrimonial Causes Rules of the Matrimonial Causes Ordinance, Cap 179 stipulates that:

“Upon an application for ancillary relief, the court may make an interim order upon such terms as it thinks just.”

9.So the guiding principle is “reasonableness” of such periodical payment in the circumstances of the particular case. The learned H.H. Judge Chan has in H v H (unreported) FCMC 1969 of 2007, 3^rd October 2007 summarized the principles applicable to MPS application. In short, these principles are as follows:

i)   the statutory guiding principle for MPS is that the court shall make such maintenance as it thinks reasonable in the circumstances: see section 3 of MPPO;

ii) the court has an unfettered discretion in making the order Waller v Waller [1956] 300, [1956] 2 ALL ER 234,236, CA and Griffith v Griffith [1957] 1 ALL ER 494, 495;

iii)   a broad-brush approach instead of a detailed investigation of the financial position by oral evidence should be adopted.  It is because such maintenance is intended to operate for a relatively short period of time pending the final disposal of the ancillary relief application: see Miller v Miller [1985] 1 HKC 595 per Power J (as he then was). At this stage the court has no time to be perfect: Wong Wai Chi Susanna v Kim Miu Sup Mark (unreported) CACV 203/98 10^th February 1999 as per Liu JA; and

iv)   The sole criteria in making the award were reasonableness and needs of the parties as well as the ability of the spouse to pay. Long term view or potential earning capacities or future capital prospect of parties not considered: see Miller v Miller (supra) and LAML v TCCY [2004] HKCU 1056 as per Hon Cheung JA at paragraph 13.

10.Mr. Yip, counsel for the Wife has referred me to the Court of Appeal decision of CYTS v LCK [2005] 1 HKC 376 at 378G to 379B. No doubt the principles stated in that case bind this Court. In fact the basic principles referred to in CYTS v LCK are no different from what have been summarized in H v H and have been stated in the preceding paragraphs. Further, when considering the reasonableness of the MPS, CYTS v LCK has this to say in paragraph 8 in 378I to 379A, as per Woo V-P:

“In matters relating to financial provisions after the breakdown of the marriage, the court is fully entitled to take into account the standard of living of the parties prior to the breakdown. Such standard of living is a ready yardstick for the consideration of the financial needs of the parties as well as their incomes and earning capacities after the breakdown, barring credible and acceptable evidence of circumstances that have altered their position after the breakdown.”

11.I shall, whenever relevant, apply the above principles to the facts of the present case.

12.In the circumstances of the present case, I consider that the crucial issues are the reasonable need of the Wife as well as the children and the ability of the Husband to pay. Such MPS be, as far as possible, fixed against the standard of living of the parties before the breakdown.

Brief Background

13.The parties were married on 24^th November 1989. There are three children born of this union. They are now respectively aged 13, 9 and 6 and are all daughters. The parties have lived under different households although under the same roof since 20^th November 2006 as stated in the Amended Petition. The Husband’s divorce petition was based on the facts of one year separation with consent. So far no decree nisi has been made. The marriage lasts for about 18 years before its split up.

14.Custody of the children was granted to the Wife with reasonable access to the Husband on 26^th June 2008 by consent. The Husband later complained having difficulty in his access. As a result this Court defined his access to the children on 10^th October 2008 and directed a social investigation report on this issue be prepared.

15.The Husband is an I.T. Director of a company in Hong Kong. In his Form E filed this March, he deposed to his salary being $41,000 per month. He confirms his earning now being $43,000 per month.

16.The Wife is an executive assistant earning $17,935 per month. According to her Form E (page 118 of bundle), she receives a monthly rental of $335.25 from a property called Smiling Plaza. For the purpose of the present proceedings her monthly income is pitched at $18,300.

The Wife’s Reasonable Need

17.It is perhaps useful to summarize the respective monthly expenses of the parties as stated in their respective Form E here:

	Heads of Expenses	Wife’s Expenses	Husband’s Expenses
i)	General Household Expenses	$2,140	$20,186(Including mortgage repayment and helper’s salary totalling $15,714)
ii)	Personal Expenses	8,125	$9,426
iii)	Children Expenses	$5,860	$5,350
	Total:	$16,125	$34,960

18.It is noted that the parties’ Form Es were filed before the Husband left the matrimonial home when needs for additional living place does not arise. In relation to the Wife’s need I have the following comments:

i)   If the expenses in respect of the mortgage payment and the domestic helper are excluded, the general household expenses incurred by the Husband are about $4,472. The total expenses under this head by the 2 parties are $6,612 ($4,472 + $2,140). Bearing in mind that the recorded expenses are made when the Husband was still living in the matrimonial home, this total amount mainly covers the food and utility expenses for a family of 6 (Wife, Husband, 3 children and one domestic helper). I consider the same reasonable. A round-off figure of $6,000 is adopted for a family of 5 (all except the Husband) for the purpose of the MPS.

ii) The amount of monthly mortgage instalment is not in dispute. A rounded off sum of $12,000 is adopted.

iii)   Counsel for the Wife submitted that the average monthly expenses for a foreign domestic helper are between $4,200 and $4,300 if employment agency commission and air-ticket are included. However, for MPS purpose, I would prefer to exclude such incidental expenses unless evidence in support has been exhibited. A rough figure of $3,800 is used.

iv)   The Wife seems to include $1,500, $1,400, $1,200 and $700 respectively for her “contribution to parents”, “holiday expenses”, “insurance premia” and “interim maintenance” as her personal expenses. Mr. Yip submitted that although the Wife’s parents have passed away, such “contribution to parents” is in fact for supporting close elderly relatives. However, it has neither been mentioned in the Wife’s affirmation nor was there any explanation as to why such expenses cannot be entered as contribution to “dependent family members” or under the item of “others”. Furthermore, while there may be moral obligation to maintain elder members of the extended family, it will be difficult to treat such as reasonable expenses which the Husband has an obligation to maintain. There is also no explanation as to why “interim maintenance” needs be incurred. In addition, Mr. Yip confirmed that the insurance has saving elements and accordingly, pending further investigation, whether such insurance premia can be regarded as reasonable expenses of the Wife is in serious doubt. For MPS purpose, I would only allow $5,500 under this head as her reasonable personal expenses.

v) For MPS purpose I do not intend to knock off any sums from the children’s expenses reported by the parties. A rounded off figure of $11,200 is adopted.

vi)   I notice in the Wife’s Form E and her affirmation that she would like to pay more pocket money to the children as well as spending more on extra-tuition and activities and insurance for them. I do not think it is necessary to take into account long-term increase of expenses of children for the present purpose.

19.The Wife’s reasonable expenses are therefore $38,500. Taking into account of her monthly income, the shortfall is $20,200, or roughly $20,000.

Husband’s Ability to Pay

20.The Husband has given a breakdown of his expenses after moving out of the matrimonial home in paragraph 7 of his affirmation. For the present purpose the mortgage repayment would be excluded as it has been taken into account when the Wife’s need is considered:

		Item Description	Amount
	i)	Rent	$12,000
	ii)	Utilities Charges	$   500
	iii)	Food	$ 2,500
	iv)	Meals out of Home	$   800
	v)	Transport	$   600
	vi)	Clothing/Shoes	$   100
	vii)	Personal Grooming	$   100
	viii)	Entertainment	$   100
	ix)	Holidays	$   100
	x)	Tax	$ 5,500
	xi)	Insurance premia	$ 1,700
	xii)	Contribution to parents	$ 4,000
		Total:	$28,000

21.Accordingly he claims that he can only afford a monthly sum of $15,000 ($43,000 - $28,000) as the Wife’s MPS.

22.The most controversial items are his rental of $12,000, his insurance premia of $1,700 and the four-fold increase in parents’ maintenance to $4,000 recently.

23.The Husband said in his affirmation that since leaving the matrimonial home, he has moved to stay with his parents in their self-owned flat for about a month until he manages to find a flat in Banyan Garden with a monthly rental of $12,000. The tenancy is for a term of 2 years commencing 9^th August 2008. A copy of the tenancy agreement is enclosed in support.

24.There is no dispute that the Husband has actually incurred an additional sum of $12,000 in renting a flat in Banyan Garden. Although the Wife initially argued that the Husband ought to have stayed with his parents and therefore the entire rental can be saved, at the hearing counsel Mr. Yip conceded, and I think correctly and reasonably, that it is not unreasonable for the Husband to rent his own flat. The question is whether $12,000 is regarded “extravagant” in the circumstances of this case, and if so, the amount which this Court should allow as reasonable.

25.I must say that a flat with a monthly rental of $12,000 is on the high side, given the family income level and the Husband’s existing obligation towards his family. A simple way to look at the matter is this. In his Form E his recorded monthly family expenses are about $35,000. As from 1^st August 2008 his salary was increased to $43,000. Every month he therefore has a surplus of about $8,000. He can choose either to save this sum for rainy days or spend up to $8,000 to rent a flat if the standard of living of his family is to be maintained more or less the same as before. In any event, I do not consider a sum of $8,000 too low for one to find a decent accommodation for, say, a small family of 4, not to mentioned that the premises is meant to be occupied by him alone.

26.The Husband explained in his affirmation that because of the poor health of the parents, they moved to live with him in the Banyan Court. Miss Hui further explained from the bar table that the self-own property of the Husband’s premises is in such a poor state of repair that it is more or less “uninhabitable” and the parents have to move to stay with him. Further she said that the premises is now being used by the Husband’s brother for storage of good, rent-free.

27.Firstly, I must say that I have reservation to accept the “uninhabitable” explanation. This explanation has never been stated in the Husband’s affirmation. In his affirmation he only said that the parents’ property is old and the surrounding air condition very bad. The condition of Banyan Garden may be a lot better but that does not mean the parents’ self-own property is uninhabitable. From the affirmation evidence, the moving to live with him is basically health-related. Secondly, even assuming (without accepting) the Husband’s parents have moved to live with the Husband, given the fact that additional expenses have been incurred in renting a more decent unit for the Husband and his parents, the parents’ property should be rented out for an income. The income received can either be used to make up for the increase in the rental expenses of the Husband, or alternatively, to reduce the Husband’s payment to his parents. It is unreasonable, given the family’s income level, to leave idle a residential unit and use it only for storage rent-free.

28.There is no explanation at all of the type of insurance taken out. Given the size of the insurance premia, it is not unreasonable to assume such insurance comprises investment and/or saving elements instead of purely insurance. It cannot be regarded as expenses if it is one’s regular investment or saving for the future.

29.In paragraph 5 of his affirmation affirmed on 23^rd October 2008, the Husband has this to say when explaining why he increases the monthly maintenance to his parents:

“Since my mother is not in good health and the building that   my parents’ are residing at is an old-aged building and the air    condition and the surrounding environment are all very bad,   my parents then have to be resided with me at Banyan Garden.   I have taken up the responsibility of taking care of them. My parents are retired and my father sometimes likes to go to China. As    my mother is not in good health, she has to go to see doctor more often.   In the premises, instead of giving them a sum of HK$1,000.00 per     month as mentioned in my Form E, I have to give them a sum    of HK$4,000.00 per month in cash.” 

30.It seems that the increase is entirely prompted by the poor health of his mother. However, the explanation about the health of the Husband’s mother is simply too brief and occurs at a time when he started to cut the maintenance which he used to provide to his family. I must say that his explanation should be viewed with skepticism.

31.In the circumstances of this case, I consider that a total of $5,000 should be knocked off from the Husband’s listed expenses for the purpose of MPS, leaving a sum of $23,000 for him to spend every month. With this sum, I am sure the Husband can still juggle with his expenses and have all his ends meet.

32.He is therefore able to provide $20,000 ($43,000 - $ $23,000) as MPS for his Wife and children. On a broad-brush approach the Husband is able to satisfy the entire shortfall in the Wife’s reasonable expenses.

Conclusion and Orders

33.By reason of the above, I order that the Husband do pay the Wife a monthly sum of $20,000 as MPS for her and the 3 children of the family, as to $5,000 to her and $5,000 to each of the children commencing from 1^st August 2008, the month in which the Husband’s salary was adjusted to $43,000. Credit should be given to the mortgage instalments in respect of the matrimonial home and the salary of the domestic helper settled direct by the Husband as from 1^st August, 2008.

34.I do consider it too simplistic an approach to demand payment as MPS in the event the family splitting up of every dollar and cent a family used to spend when intact. This approach over-emphasizes one’s need and ignores totally the additional expenses that the split-up brought about, and hence, ability of the other party to pay. Further, with due respect to Mr. Yip, the alternative pro-rata approach as advanced by him in his written skeleton does not hold any water. It falls foul of the principles set out in paragraphs 7 to 12 above.

35.Although the Wife cannot achieve exactly what she intends to achieve by this summon, she has successfully beaten Husband’s open offer. As costs should normally follow the event, I therefore make a decree nisi that the Husband do pay the Wife’s costs of this application (without counsel’s certificate), such order be made absolute in 14 days if no application is made in the meantime to vary this costs order, and legal aid taxation for the Husband’s own costs.

36.In the event the costs order is made absolute, by gross sum assessment, I assess the Wife’s costs of this application at $18,000.