Gy v. Cwt
Read the full judgment text of FCMC 7844/2013 on BabelCite. This Family Court judgment was delivered on 18 December 2013 before Her Honour Judge Sharon D. Melloy.
Matrimonial Causes – Maintenance Pending Suit – Matrimonial Proceedings and Property Ordinance Cap 192 s.3 – Reasonable expenditure – Marital standard of living – Backdating of maintenance – Costs – District Court. The court determined the reasonable monthly maintenance pending suit for the wife was HK$50,000, rejecting the wife's claim of HK$75,000 as inflated and accepting the husband's ability to pay. Maintenance was backdated to July 2013 less sums already paid under a previous order. Respondent ordered to pay Petitioner's costs on a party and party basis.
Legal issues: Maintenance Pending Suit Amount · Backdating of Maintenance · Costs
Outcome: Maintenance pending suit awarded at HK$50,000 per month. Backdated payment of HK$165,000 ordered. Costs ordered against Respondent.
Cites 1 case
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FCMC 7844 / 2013 IN THE DISTRICT COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION MATRIMONIAL CAUSES NUMBER 7844 OF 2013 ----------------------------
------------------------------------------------ J U D G M E N T (Maintenance Pending Suit) ------------------------------------------------ Introduction 1.This is an application by a Petitioner wife for maintenance pending suit pursuant to s.3 Matrimonial Proceedings and Property Ordinance Cap 192. The main issues 2.The main issue to be determined is how much should the husband pay to the wife as interim maintenance pending final resolution of this matter. The husband has offered to pay HK$27,000 per month whereas the wife seeks HK$75,000 per month or such other sum that the court deems reasonable. The wife also asks that this sum be backdated to the date of the petition i.e. to the 5 June 2013. It should be noted that the wife left the former matrimonial home in July 2013. The wife is legally aided and there are also concerns about the legal aid statutory charge. On the 8 November 2013 an order was made for interim interim maintenance pending suit pending this hearing. The husband was ordered to pay the wife HK$100,000 plus a further HK$35,000 per month commencing on the 1 December 2013 until further order. The idea had been that the sum of HK$100,000 would enable the wife to put down a deposit on a small flat and pay the first month’s rent. In addition she has some debts to repay. However once Legal Aid had imposed the statutory charge she only received HK$57,400 of the HK$100,000 plus HK$4,800 being the maintenance for December 2013. I am told that the wife’s costs to date, pre legal aid taxation, stand at HK$655,000. Consequently I stood the matter down so that the lawyers for the wife could discuss matters with the Legal Aid Department. Notwithstanding that it is still not clear how much money the wife will actually receive once this judgment has been handed down. This is a matter of some concern. Background 3.The parties married in November 2008. There was some dispute about the date of separation, but it has now been agreed that the parties separated on or before the 30 May 2012. This was then a relatively short marriage. The divorce petition was issued by the wife on the 5 June 2013 and was initially defended. Sensibly the parties agreed to compromise this aspect of the case and by virtue of a court order dated the 8 November 2013 the parties agreed that the petition should be amended to one year separation with consent. Unfortunately there have been other issues including disagreements with respect to the arrangements for the parties’ only child – a little girl who was born in May 2009. 4.The husband is nearly 38 years of age and he describes himself as a freelance investor. The wife, who is originally from the Mainland, is 30 years old and was until recently a full time housewife. She has not worked since marriage and is totally reliant upon the husband financially. She comes to Hong Kong on a two way permit and was recently deported for breach of overstay. The wife claims that this was because the husband had refused to give her the requisite travel documents. The law Maintenance pending suit 5.The law is well known and not in dispute. Section 3 MPPO Cap192 states that the only governing principle is that the court shall make such order as it considers reasonable in all of the circumstances of the case. Consequently applications such as these are approached on a broad-brush basis. A detailed examination of the parties’ means may be examined at a later date at a full ancillary relief hearing if there is no agreement in the meantime, when there is then every opportunity to achieve fairness by means of set off. In other words, if there is any overpayment or underpayment that can normally be rectified at a final ancillary relief hearing. 6.The wife’s solicitor has referred to the Court of Appeal case namely HJFG v KCY (CACV 127/2011, 28 October 2011, where the following principles were reiterated with respect to maintenance pending suit applications:
7.In so far as this particular case is concerned the reference to the marital standard of living previously enjoyed by the parties and the ability of the husband to pay is particularly pertinent. How much maintenance should the husband pay to the wife as maintenance pending suit for herself? 8.In essence the wife’s case is that the husband should pay her HK$75,000 per month because that is in keeping with the standard of living enjoyed by the parties prior to the breakup of the marriage. In particular she claims that the parties enjoyed living in what has been described by counsel as luxurious accommodation on the south of Hong Kong Island. She says that the husband would buy her designer goods and asks for HK$30,000 per month to pay for clothing and shoes. 9.The husband for his part says that the wife’s figures are inflated and maintains that HK$27,000 per month is a more reasonable sum. 10.The wife’s expenses are set out in both her Form E and in her later affidavit as follows:
11.I should say right from the beginning that I did not find either party particularly credible in the way that each presented their case. In particular when asked through counsel the wife was unable to provide any details of the so called luxury items apparently purchased for her on a regular basis by the husband. When pushed she said that they would shop in Lane Crawford and she mentioned “Dior” and “LV”. I do not accept what the wife says in this respect and I will not allow the HK$30,000 per month for clothing/shoes requested which seems excessive in the circumstances. The other personal items identified by the wife seemed similarly inflated including HK$5,000 per month for meals out of the home and HK$6,000 per month for personal grooming. 12.In so far as the general items are concerned HK$15,000 per month for food for a single woman seems extraordinarily high. In addition the wife is claiming funds for a driver, a domestic helper and a car. Given the fact that the child is based with the husband at the moment these items will not be allowed as they are mainly in the husband’s schedule of expenses so as to enable him to take care of the child appropriately. I should add that this may be revisited later depending on the practical arrangements for the child going forward. 13.In so far as the rent is concerned the husband maintains that the parties only lived in more expensive accommodation for the last two years of their marriage and he has since moved to more affordable accommodation of HK$27,400 per month. This seems to be more in keeping with the parties’ original standard of living. I will therefore allow the wife the same rental allowance. 14.The following represents what seems to be more reasonable level of expenditure for the wife and one that is more in keeping with what the husband says his own expenses are:
I will round this down to HK$50,000 per month. Can the husband afford to pay this sum? 15.There was a degree of mystery surrounding the husband’s financial standing – particularly with reference to his current income. According to him he does not pay tax and his only income is derived from dividends received from his company. He owns 100% of the shares in that company. According to his Form E he received dividends in September 2013 of HK$1,282,554 or just over HK$100,000 per month. He also claims to have a reasonable frugal lifestyle with expenses as follows:
16.Counsel for the wife was able to show however that this was not in keeping with the level of expenditure identified in the husband’s credit card statements. On the 20 May 2013 he paid HK$33,916, and at the beginning of June and a further total of HK$59,569 with an additional HK$62,426 paid at the end of the month. A similar story could be seen in the next month’s statement where the husband had paid off a total of HK$86,336. In addition the husband was able to pay for 13 months rental when he moved into new accommodation in the sum of HK$411,000. He clearly enjoys a very comfortable life style and one that is not necessarily commensurate with an income of just over HK$100,000 per month. I have also noted that he does have a reasonable amount of liquidity in his portfolio – although I would accept that he needs a certain amount of flexibility so that he is able to invest appropriately and when necessary. In so far as some of the individual items are concerned I do not accept that it is reasonable for the husband to pay such large sums as a contribution to his parents and other family members. 17.All in all I am satisfied that the husband does have the means to pay the wife HK$50,000 per month and that in part this should come from a reduction in some of his own expenditure. Should this sum be backdated? 18.The husband has paid very little to the wife since separation. Consequently I accept that this is a suitable case for backdating save that allowance should be made for the HK$100,000 already paid by the husband in accordance with the order of the 8 November 2013. In addition given that the wife did not leave the matrimonial home until July 2013, the backdating shall be from then. Thus the husband shall pay HK$50,000 per month with effect from the 1 July 2013 to 31 December 2013 – i.e. a 6 month period = HK$300,000 less the sum of HK$135,000 already paid (i.e. HK$100,000 + HK$35,000). In total then the husband shall pay HK$165,000 forthwith plus maintenance pending suit of HK$50,000 per month with effect from the 1 January 2014 until further order. Costs 19.Given that the wife has been more successful than not, that she has had no option but to make this application and that she is legally aided I shall order that the husband shall pay the wife’s costs on a party and party basis to be taxed if not agreed, the wife’s own costs to be taxed in accordance with Legal Aid Regulations. Order
Mr KC Wong instructed by K. Y. Woo & Co for the Petitioner Mr A Luk and Mr C Kan instructed by Ha & Ho for the Respondent | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
Cases cited in this judgment