Jel v. Zm

FCMC 14025 / 2008

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES

NUMBER 14025 OF 2008

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BETWEEN

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Coram: Her Honour Judge Sharon D. Melloy in Chambers (Not open to public)

Date of Hearing: 11 June 2009

Date of Ruling: 22 June 2009

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R U L I N G

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Introduction

1.This is an application by a respondent wife for maintenance pending suit for herself pursuant to s.3 Matrimonial Proceedings and Property Ordinance Cap. 192.

Background

2.The parties married on the 5 March 2006.The wife is 29 years of age and is presently working as a project officer/executive assistant for a Hong Kong company based in Shenzhen.She earns approximately HK$7,500 per month inclusive of a bonus. She also has rental income of HK$1,200 per month. Therefore her total income is in the region of HK$8,700 per month.

3.The husband is 60 years old and he presently works as a manager for a company called X Ltd in Hong Kong. He presently earns approximately HK$105,000 per month inclusive of benefits and less certain deductions. In addition he received a bonus of HK$150,000 in March, which has not been included in the schedule as income. If averaged out over a 12 month period this would give him an additional income of HK$12,500 per month. In addition the husband receives certain rental income from investment properties, the majority of which are mortgaged. He is responsible for the mortgage repayments, which are in excess of the rental received. The rental is c HK$16,700 per month. In total then the husband has an income of just over HK$134,000 per month.

4.The divorce petition was issued on the 20 November 2008, based on the wife’s unreasonable behaviour. The particulars are mildly drawn. Notwithstanding that the wife filed an answer and cross petition on the 6 January 2009, alleging unreasonable behaviour on the part of the husband. What is clear from this is that both parties accept that their marriage has broken down irretrievably. I would encourage the parties to resolve this aspect of the proceedings as quickly as possible.

5.There are no children of the family and this is by any definition a short marriage. It appears to be accepted by both sides that they did not spend a great deal of time with each other, as the wife was based in Shenzhen and the husband in Hong Kong. Each blames the other for this. The wife claims that this was a 7 year relationship. It is unclear the extent to which, if at all, the parties cohabited with each other on a permanent basis.

The law

6.Applications of this nature are governed by s.3 Matrimonial Proceedings and Property Ordinance, Cap. 192, which state that the only governing principle is that the court will make such order, as it considers reasonable in all the circumstances of the case. Consequently maintenance pending suit applications are approached on a broad-brush basis. A detailed examination of the parties’ means will be considered at a later date at a full ancillary relief hearing, if agreement is not reached in the meantime. Any possible over payment or under payment may be dealt with then.

The parties proposals

7.The husband has offered to pay the wife HK$10,000 per month. He is presently paying HK$12,000 per month on an interim interim basis pending the present hearing. In her summons the wife sought HK$25,000 per month. However during the course of the trial she confirmed that she would be willing to accept HK$18,000 per month.

The Issues

8.In broad terms there is only one issue to be determined, namely how much should the husband pay the wife as maintenance pending suit?

Discussion

9.I must now turn to consider the issues, the law and the parties’ evidence.

10.The wife makes the present application because she says that she cannot afford to live as she has done in the past, without the financial support of the husband. She says that she has been used to having access to the husband’s bank accounts and that in the 9 months or so before the divorce petition was issued (at which time the marriage is likely to have been in some difficulty) she withdrew RMB11,500 per month from the husband’s bank account. In addition she says that she spent an additional HK$10,000 per month on his credit cards. I have looked at the husband’s bank accounts, which the wife says supports her case on this. Unfortunately I cannot find the evidence in support of the wife’s assertion as claimed. Also I do not have the credit card statements for the period in question.

11.The husband says that he has never paid the wife anything like HK$25,000 per month and that although he has a good salary, he also has significant outgoings including mortgage repayments for the investment properties and a number of loans.

12.I accept that the husband has a number of loans as alleged. I was taken to evidence of a personal loan, a tax loan and other debts, the repayment for which totals just over HK$36,000 per month. This is in addition to outgoings of c HK$90,000 per month. Thus in broad terms he has a total income including the bonus and rental income of HK$134,000 and total alleged outgoings of HK$126,000. On those figures he could afford to pay in the region of HK$8,000 per month to the wife as maintenance pending suit.

13.In so far as the husband’s outgoings are concerned most of these appear to be quite reasonable, save that HK$7,200 per month for food (meals out of the home and food generally) seems a little on the high side for a single man. Likewise it seems to me that some economies can be made in the area of clothing (HK$1,500 per month), entertainment (HK$4,000 per month) and holidays (HK$2,500 per month).

14.The husband says that the wife’s expenses are inflated. The wife says in her latest affirmation that she spends HK$3,100 per month supporting her brother and a further HK$2,800 per month as a contribution towards her parent’s expenses. Although this may or may not be so, in any event I do not accept that the husband is obliged to pay for that support, especially given that it does not appear that he agreed to do so, either during the marriage or otherwise. I will not allow those expenses. Reference was also made to self improvement – education of HK$3,000 per month. I am not sure to what this relates. I will not allow it for the time being. All the other expenses seem quite reasonable save that the entertainment expenses (HK$4,500 per month) and the clothes and travel allowance (HK$5,800 per month), also seemed to be a little on the high side. I accept that some of these expenses are inflated.

15.On the evidence before me and on a broad-brush basis therefore it seems to me that the wife’s needs are just over HK$20,000 per month once adjustments have been made. Given her own salary and the property rental, it seems to me that HK$12,000 per month is a fair and reasonable amount to be paid as maintenance pending suit in all the circumstances of this case. I am of the view that the husband can afford that amount, if sensible economies are made.

16.In the circumstances I do not intend to alter the interim interim order of the 30 March 2009. The husband shall continue to pay the wife maintenance pending suit of HK$12,000 per month on the first day of each month pending further order. I will reserve costs until after resolution of the wife’s ancillary relief application.

17.Finally the wife’s solicitor made reference to the provision of funds for legal expenses, in her opening submission. However she was not able at that time to address me on the current law. Subsequently she filed a written submission on this point – although no directions had been given to that effect and the otherside had not been given the opportunity to be heard. This is most irregular. I did not read the submissions and asked that they be returned to the wife’s solicitor.

Ms. F. Lim of Messrs Li, Wong, Lam & W.I. Cheung for the Petitioner

Ms P. Kwong of Messrs Fan & Fan for the Respondent