HK CourtDB
HomeDirectoryMCP
Hong Kong CourtDB
Back to directory
Joint application2001

C v. L

Related cases with same parties

  • CACV103/2008L v. K AND ANOTHER
  • CACV132/2008C v. DIRECTOR OF IMMIGRATION AND ANOTHER
  • CACV154/2010L 訴 社會福利署
  • CACV169/2006L v. C
  • CACV169/2012C v. H
  • CACV173/2015呂 對 陳
  • CACV181/2006L v. C
  • CACV182/2006L v. L
  • CACV187/2006C v. K
  • CACV205/2007S v. L
  • CACV214/2010賴 對 陳
  • CACV216/2007C v. T
  • CACV262/2021梁 對 陳
  • CACV265/2002L v. EQUAL OPPORTUNITIES COMMISSION AND OTHERS
  • CACV272/2002C v. C AND ANOTHER
  • CACV295/2005L v. L
  • CACV296/2005L v. L
  • CACV303/1998C v. C
  • CACV333/2003L v. C
  • CACV36/2011W 對 C

Files (2)

111886-CH-2017-09-29

陳 對 李

HTML content

FCJA 1467/2001

香 港 特 別 行 政 區

區 域 法 院

共同申請

婚姻訴訟2001年第 1467宗

————————————————

 陳第一申請人
 及 
 李第二申請人

————————————————

主審法官: 區域法院暫委法官張志偉內庭聆訊(非公開)
審訊日期: 2017年6月15及16日
書面結案陳詞 :2017年6月30及7月7日
判決日期:2017年9月29日

-------------------------

判 案 書
(更改贍養費)

-------------------------

背景

1.  本席在本判案書內將稱第一申請人為「男方」而第二申請人為「女方」。

2.  1985年訴訟雙方結婚,婚後育有一女。女兒於1986年出生,現年31歲及已婚。女方快將57歲,現時没有工作。男方現年59歲,退休並依賴退休金為生,及没有工作。男方亦於2002年再婚,現任太太38嵗,家庭主婦而男方與現任太太婚後育有一子。兒子於2001年出生,現年16歲,現時在内地讀中學。

3.  訴訟雙方在2001年11月28日以共同申請書方式提出離婚申請。2002年2月8日法庭頒下暫准離婚令,其後暫准離婚令在2002年4月18日成為絕對判令。

4.  過去就贍養費命令,法庭曾分別在2002年4月8日、2002年12月12日及2007年8月28日頒下命令。在2007年8月28日,區域法院暫委法官黃敬華(當時官階)頒令,由2016年8月1日開始,男方需支付女方的贍養費減至每月港幣10,000元「2007年命令」。

5.  男方現以日期為2016年3月14日的傳票提出申請,要求更改2007年命令,並要求將男方付女方的贍養費由每月港幣10,000元更改為象徵性港幣1元。

證據

6.  訴訟雙方親自作供,先後存檔和送達了多份誓章、表格E,也就雙方的經濟狀況作出提問,而雙方在審訉時都沒有傳召證人替他們作供。

男方的案情

7.  扼要來說,男方本次申請所依賴的主要理由,第一是雙方經濟條件的轉變,第二是女方可以不依賴男方支持的方式維持她的生活,及男方沒有能力繼續支付每月港幣10,000元的定期付款。

8.  男方的案情指男方在2013年退休後,現時是倚靠每月收取約港幣22,000元的長俸生活,相比退休前月薪為港幣56,270元大大減少。另外他在2013年收取了大約港幣3,000,000元的一筆過退休金,該筆退休金已經差不多耗盡。

9.  就男方的退休金,男方分別使用在幾個項目上,包括還清深圳物業按揭,投放在用作兒子讀書的兩個基金上及購入私家車作代步之用和用作支付日常開支。男方認為他是合理地花費退休金,而現已沒有其他實質資產。男方亦認為自己不需繼續工作以支付家庭開支及女方每月的定期贍養費付款,因為男方沒有經濟條件支付。

10.  男方並且指出,女方有足夠資產供養自己,而女方亦是有工作能力,而非如女方所指的情況,不能工作。男方亦認為,女兒在金錢上亦有資助女方,而女方應該可以善用自己的資產及工作能力,達到財政獨立,而無需再倚賴男方供養。

11.  其次男方亦質疑女方的欠債,並且認為在決定女方的資產時,不應考慮女方所指的債務。男方並且質疑女方現時申報的支出,並認為支出的數目不合理。

女方的案情

12.  扼要來說,女方的案情指男方雖然退休但身體健康仍然有工作能力,在勞工市場仍有相當競爭力,因此除了男方每月的長俸外,男方應該可以工作,賺取工資支付家庭開支及女方每月的定期贍養費付款。

13.  女方亦質疑男方沒有如實披露他和他家庭的資產及收入來源。女方指男方收取了他的退休金後,將退休金花費在若干項目上,都是不必要和不合理的。女方亦質疑男方的開支,並且認為相關的開支,數目是誇大及不合理。

14.  女方認為自己基本上已沒有工作能力,而女方的女兒亦無法供養女方。至於女方的資產,即女方現時的居所,不可能變賣套現,因為這個居所是女方的合理生活需要,所以應讓女方繼續住在現時的居所。對於男方指女方的債項是不需要償還的說法,女方完全否認。女方認為應該維持2007年命令。

適用的法律原則

15.  男方申請更改關於女方的贍養費,是根據香港法例192章《婚姻法律程序與財產條例》(「該條例」)作出。該條例第11(1)條規定,本庭有權就定期付款令作出更改或解除。根據該條例第11(7)條規定,法庭在行使第11條所授予的權力時,「須顧及案件的所有情況,包括顧及法庭在作出與申請有關的命令時須予顧及的任何事項的任何轉變」。這些事項包括雙方的行為和開列在該條例第7條中各項事宜如下:

「(1) 法庭在決定應否就婚姻的一方而根據第4、6或6A條行使權力,以及若行使該等權力則應採取何種方式時,有責任顧及婚姻雙方的行為和案件的所有情況,包括顧及下列事宜─

(a) 婚姻雙方各別擁有的或在可預見的將來相當可能擁有的收入、謀生能力、財產及其他經濟來源;

(b) 婚姻雙方各自面對的或在可預見的將來相當可能面對的經濟需要、負擔及責任;

(c) 該家庭在婚姻破裂前所享有的生活水平;

(d) 婚姻雙方各別的年齡和婚姻的持續期;

(e) 婚姻雙方的任何一方在身體上或精神上的無能力;

(f) 婚姻雙方各別為家庭的福利而作出的貢獻,包括由於照料家庭或照顧家人而作出的貢獻;

如屬離婚或婚姻無效的法律程序,則顧及婚姻的任何一方因婚姻解除或廢止而將會喪失機會獲得的任何利益(例如退休金)的價值。」

16.  上訴庭法官張澤佑在AEM v VFM [2008] 3 HKLRD 36指出(見判詞第14段),法庭在處理此類申請而行使法例所授予的權力時不應受到任何限制,法庭應考慮雙方目前的經濟情況,並重新以目前的情況為基礎來考慮有關申請,最終目標是要取得一個對雙方公平、公正的結果。

17.  當然,法庭在考慮一方提出的申請時,同時須要顧及原先的命令,不會隨便將之更改,尤其是一項在雙方同意下所作的命令。上訴法庭副庭長鄧國楨(當時官階)曾在HCTT v TYYC(CACV 380/2007, 判詞日期2008年7月2日)一案指出(見判詞第16段),除非情況有實質上或重大的轉變,法庭一般是不會更改之前所作出的命令,因法庭應顧及之前的命令是一項在雙方協議或同意下所作的命令。

18.  另外,上訴庭法官袁家寧在TCH v TYL(HCMP 1595/2011, 判詞日期2011年10月19日)一案也作過類似的說法(見判詞第11段):

“案例確立,當法庭作出雙方同意的命令後,雙方應該遵從。雖然法律賦予法庭更改命令的權力,但法庭會否行使酌情權去更改一項同意的命令,要視乎情況。一般而言,申請一方若能證明命令頒下後發生了重大的轉變,令到法庭需要因應轉變而調整命令,法庭是可以行使酌情權,去更改一項同意的命令。但法庭會考慮轉變是否申請一方在同意有關命令時可以預料到的。在一般案件而言,申請一方要證明同意命令作出了一段時間後,有預料不到的事情發生,如患病,或有其他預料不到的額外開支,法庭才會更改一項同意命令。”

19.  因此,在本審訊中,男方有舉證的責任,他要證明在命令作出了一段時間後,有預料不到的事情發生,或有其他預料不到的額外開支,以致法庭要更改一項命令。

20.  基於上述法律原則來考慮,本案的關鍵為:

(1) 男方的經濟狀況,這包括他的經濟能力,同時顧及他的資產和收入,和男方和子女經濟需要。

(2) 女方的經濟狀況,這包括女方的經濟能力,同時顧及她的資產和收入,和女方的經濟需要。

(3) 在2007年命令作出以後,與訟雙方的經濟狀況和需要是否發生了重大的轉變,這些轉變是否在該命令作出時預料不到的。

(4) 在考慮全部因素以後法庭應作出甚麼命令。

男方的經濟狀況

男方的資產

21.  男方在他2016年3月21日的經濟狀況陳述書中填報,他的銀行戶口有存款港幣3,573.85元而在債務一欄,他指出他於2013年2月9日被通知退休,2013年8月正式退休後獲發退休金港幣3,139,393.29元,男方繼而就還清的債務及過去三年多的支出作出說明,包括於2013年8月在獲發退休金後,男方為現任太太還清現時他們的婚姻居所「深圳物業」的貸款約人民幣439,380元,以作為男方現時婚姻及男方退休後能夠長期居住的地方。

22.  男方亦指出為了接送兒子學習方面,男方購買了家用私家車約人民幣313,168.04元,而這兩筆支出,折合約港幣940,000元。

23.  男方又指出,現任太太要求男方給予兒子作出保障,以購買一份基金保險價值港幣263,262元作為承諾給予兒子,及保障兒子未來接受海外高等教育給予現任太太保管一份保險基金,人民幣700,000元折合港幣共1,1380,00元。

24.  男方亦指出於2013年8月退休後至2016年3月為止共31個月,就男方及現時婚姻家庭,現任太太及兒子的供養,每月平均家庭支出需要支出約港幣56,270元,其中包括每月給予女方港幣10,000元。男方指出,扣除每月長俸大約港幣21,000元,而以已收取的一筆過退休金補貼每月港幣35,270元,共補貼了約港幣1,093,370元,因此從2016年2月起,男方已經無法依賴退休金生活,每月欠缺港幣35,270元。

25.  在庭上男方亦指出他的家用私家車購入時為人民幣277,424.45元,折合港幣約350,000元,而當時估計價值為港幣200,000元。

26.  其後男方在他2017年5月31日的經濟狀況陳述書中填報,他的銀行戶口有存款港幣3,555.08元而在債務一欄,男方作出了一些更新資料。

27.  男方指出過去購買的一份基金保險價值港幣263,262元作為承諾給予兒子,及保障兒子未來接受海外高等教育給予現任太太保管的一份保險基金,人民幣700,000元折合港幣共計1,138,000元,由於男方及家庭生活入不敷支,已經分兩次取出用於補貼家用,有關保單已經結束。

28.  男方亦指由2013年8月退休後至2017年5月共46個月計,扣除每月長俸港幣21,000元左右,而以退休金補貼每月港幣35,270元,供補貼了約港幣1,093,370元。

29.  男方並且指出由於從2016年2月起,家庭已經沒法倚賴男方退休金生活,每月缺少港幣35,270元,再盡量縮減開支後現時每月應缺少港幣18,209.47元。

30.  男方在第2份經濟狀況陳述書內,再沒有填報他的私家車的價值,亦沒有表示他有任何投資和保單權益的價值。

退休金是否合理地使用

31.  女方指男方不合理地花光退休後收到的一筆過退休金,該筆退休金為港幣3,139,393.29元。就這一點本席會從下面幾方面來考慮。

32.  男方使用了大約港幣527,256元(折合人民幣439,380元)用作償還深圳物業按揭。男方的代表律師陳詞指,就深圳物業按揭,根據男方的證供所述,該按揭利率約6%,因此有一次過清還按揭的必要。

33.  男方的證供亦指出,物業是現任太太名下持有的,現任太太付出首期,而男方一直以來負責供款。男方一次過還清按揭,因此男方現在再沒有就住屋上需要每月償還按揭的支出,本席認為,這個財務上的安排並沒有任何不妥當的地方。

34.  男方的代表律師在他結案陳詞的回覆中,指出現任太太擁有深圳物業,現任太太是可以選擇重新按揭深圳物業去供兒子讀書的。這樣的安排和想法,亦是日後其中一個可行的方法,因為兒子是男方和現任太太的家庭子女,男方日後的需要,其中一項就是兒子學業上的支出,無論男方或現任太太,若他們有資產和工作能力,兩人都有責任滿足兒子在這方面的需要和支出,而並非只是單單男方的責任。

35.  其次男方在2013年3月7日及4月19日分別購買了港幣263,261元和人民幣70萬元的教育基金。在庭上,男方指出當時購買這些基金是用作投資,看日後有沒有增長,而他任何時候都可以從這些基金提取現金。男方的代表律師在結案陳詞中指出,男方的立場是打算讓他的兒子到加拿大讀大學,四年學費約人民幣1,000,000元。

36.  另外,男方的代表律師又指出,港幣教育基金因為男方面臨入不敷支而被清空,男方的說法是,他的存摺於2016年8月12日及2017年1月30日的交易,均為他的港幣基金的退款,而總差額是基金方面收取的手續費。

37.  因此,男方現在尚有人民幣700,000元教育基金,是留待日後兒子升學之用。男方在未來的日子需要考慮用其他的資源支付兒子的留學費用。

38.  本席認為,男方這兩筆教育基金,只是由原本的現金,變成另外一種資產,當有需要使用時,就會用作使用。正如男方在庭上的證供承認,這一筆人民幣700,000元教育基金,有需要時男方亦可用來自己使用。男方自己亦指出,當他入不敷支時,他亦動用了港幣教育基金,同樣地,他亦可動用人民幣教育基金。

39.  男方在庭上又指出,在他的第1份經濟狀況陳述書內,他披露了私家車的開支,而在第2份經濟狀況陳述書內,沒有披露這樣的開支,但他承認私家車仍然在,而且長時間停在停車場,他估計現時私家車的價值為人民幣100,000元左右。

40.  事實上,在他的第1份經濟狀況陳述書內,他披露了他的私家車的現值估計為港幣200,000元。然而在他第2份的經濟狀況陳述書內,他卻隠瞞了這個資產。現時他又再庭上指出他的私家車仍在,而且估計現值只有人民幣100,000元左右,男方的行為明顯希望隱藏自己的資產。

41.  基於以上所指的情況,本席不接納男方代表律師指,男方倘有的資產只有汽車倘餘的價值人民幣100,000元,而無需計算其他的資產。

42.  男方在他第1份日期為2016年3月21日的經濟狀況陳述書內,當時已指出每月需要港幣35,000元作為補貼,而當時他的私家車估計價值為港幣200,000元。

43.  在庭上他指出,他仍然擁有該部私家車,而私家車則長時間停在停車場,男方指出他已有半年的時間沒有使用該汽車,他亦打算考慮把私家車變賣。

44.  男方指出,他是在2013年9月5日買入私家車,而買車的原因是為了方便兒子上學,當時兒子讀初中,大約12歲,這個年歲接送都應該由成年人陪同,男方和現任太太當時都沒有工作,兩人都可負責接送兒子的工作,男方選擇購買私家車,事實上並沒有這個必要。

45.  即使男方當初購入私家車的決定是正確,他指出在2016年3月的時候,他已用光了他餘下的退休金,那麼在那個時候,甚或之前,他沒有理由還繼續擁有該部私家車,而不考慮變賣,而且男方在他的第2份經濟狀況陳述書中,亦沒有披露他擁有該部私家車,因此本席會以港幣200,000元作為該部私家車的價值,並考慮男方除擁有人民幣700,000元教育基金外,還有一筆港幣200,000元的資產。

男方有没有隱瞞資産

46.  男方在退休前的月薪為港幣56,270元。於2013年,他退休後,他除收取了一筆過的退休金外,以後每月他便收取約港幣22,000元的長俸。代表男方的律師指出,男方的收入在退休前與現在的收入比較,有很大的距離。

47.  代表男方的律師繼而指出,假若法庭認為男方所有有關他使用退休金的支出都是不合理的,而所有花費掉的退休金均被視作男方的現有資產,並把退休金用作男方餘生的每月洗費補貼,他的每月收入也是比退休前大打折扣。

48.  事實上,本席認為當男方收到一筆過的退休金後,他的退休金的確是應該用作日後他在每月長俸收入之上的每月生活補貼。在男方第1份經濟狀況陳述書內,他指出每月開支總額為港幣56,454元,這個總支出已包括了每月支付女方的港幣10,000元生活費,扣除他當時的每月長俸港幣21,449.16元,他每月需要從退休金中補貼大約港幣35,000元。

49.  他這個每月開支總額,並沒有任何按揭供款的支出,所以他的一筆過退休金的總數,應該扣除他清還按揭餘款港幣527,256元,扣除後,他的退休金應該大約有港幣2,583,744元。

50.  假若男方要從這港幣2,583,744元中,每月使用港幣35,000元作補貼,大約可補貼6年的時間,即大約在男方61歲的時候,這一筆退休金將會完全用光,而他的每月長俸港幣21,449.16元加上每月使用35,000元的補貼,合共每月可使用56,449.16元,與他退休前每月薪金為港幣56,270元,收入上並沒有重大的改變。

51.  正如本席在較早前指出,男方分別將他的退休金,購買了一份港幣基金和一份人民幣基金,這並非等於他的退休金花光,本席認為這只是他將現金改作另一類的投資,男方亦承認這兩個基金,他都可以使用,他指他亦已將港幣基金花在補貼生活開支上。

52.  男方的兒子是2001年1月出生的,在2013年男方退休的時候,兒子只有12歲,而到男方61歲的時候,即2019年的時候,兒子只有18歲,屆時亦是男方預期兒子出國升學的年份而男方的兒子現時是16歲。男方在他的經濟狀況陳述書內指出,他希望兒子繼續在國際學校完成高中後便安排到國外讀大學。他亦在經濟狀況陳述書內,第二部份債務一欄,指出他購買的兩份教育基金目的都是為着保障兒子未來接受海外高等教育的保障。

53.  在男方的代表律師的結案陳詞中指出,男方的立場是他打算讓他的兒子到加拿大讀大學,四年學費約需人民幣100萬元。

54.  男方的代表律師,在他的結案陳詞中第61段指出,男方現在尚有人民幣700,000元的基金儲蓄留待兒子升學之用。男方在未來的日子需要考慮用其他的資源支付兒子的留學費用。

55.  在男方代表律師的結案陳詞中第63段指出,男方退休金的其他部份,男方已用作支付日常開支而所餘無幾,而男方的代表律師,在結案陳詞中第64段中指出,男方希望法庭不考慮男方的深圳物業及人民幣700,000元基金,而男方倘有的資產只是汽車倘餘的價值人民幣10萬元。

56.  男方使用了港幣527,256元償還深圳物業按揭餘款,人民幣700,000元的教育基金折合港幣計算,應為港幣84萬元,另加上港幣教育基金263,261元和買入私家車使用了港幣375,801元,以上四項合共為港幣2,006,318元,扣除一筆過退休金金額港幣3,111,000元,他應有港幣1,104,682元可使用在補貼生活上的開支。

57.  不過男方指出,他還用上了港幣教育基金263,261元,因此根據他的說法,他已用了1,367,943元補貼在他的生活開支上。

58.  若他每月的總開支,扣除了他的長俸收入外,他真的每月需要用港幣35,000元作生活的補貼,那麼他亦可用39個月,而男方是在2013年8月正式退休,他應該在大約2016年年底用光這筆款項。

59.  若以每月開支總額為港幣56,454元計算,一年平均大概需要港幣677,448元的支出。然而男方在2014年2月至2015年1月期間,他總共提取了港幣595,300元,即平均每月提取港幣49,608元,而在2015年2月至2016年1月期間,他總共提取了港幣606,000元,即平均每月提取港幣50,500元。換言之,他每月並不需要港幣56,454元作為家庭每月總開支 。

60.  男方在庭上作供時指出,他在2016年3月的時候,他已用光了他餘下的退休金。他指出在銀行存摺分別為日期2016年8月12日存入港幣101,466元,及日期為2017年1月9日存入港幣114,330元,就是香港基金分兩次提取存入的款項。

61.  男方在庭上指出在2016年3月前,每月支出若有盈餘他都會放在家中,而在提取港幣基金前,當時他還有大約人民幣50,000元在家中存放。男方亦指出在2016年3月至8月期間,家中的開支大約是港幣40,000元。

62.  男方亦指出在2014年5月27日,他只給了現任太太港幣30,000元作為家用,他指出應該是付港幣40,000元作為家用。

63.  男方的銀行戶口在2014年1月27日前顯示他的結存是港幣707,624.35元,而他是在2013年8月才正式退休,所以在正式退休前他每月薪津平均還是港幣56,270元,所以在他正式退休前,本席認為他的薪金都應足以支付他的每月家庭總開支,而無需要用他的退休金作任何補貼。

64.  男方取得退休金後,先後償還深圳物業按揭、購買港幣和人民幣基金及購買私家車,合共使用了港幣2,006,318元,他應該尚餘退休金港幣1,104,682元在他的銀行戶口內,然而在2014年1月的時候,他的退休金卻只剩餘大約港幣707,624.35元,即大約有港幣400,000元,從銀行户口被提走並存放到别處。

65.  男方在他的誓章中第19段指出,就兩個月前開始,即2016年1月,他已經身無資產。男方在他日期為2017年5月31日的第2份經濟狀況陳述書內,指出他每月開支總額調整為港幣40,345元,當中包括了給予女方每月港幣10,000元的生活費。

66.  在他的銀行存摺中顯示2014年2月18日他提取現金港幣30,000元,在2014年3月4日,他提取港幣現金20,000元,另外在2014年2月4日和2014年3月3日,他指出港幣10,000元,是用作支付女方每月生活費的。換言之在2014年2月至3月,這兩個月他只需提取合共港幣50,000元,就足以應付家中的開支。

67.  在庭上他指出2014年5月27日,他只提取了港幣30,000元用作給現任太太做家用,男方指出他尚欠現任太太10,000元,因為港幣40,000元才是應該付給現任太太的家用。本席不相信有所謂欠付的情況,因為男方都是提取現金,而戶口又有足夠的金錢,不可能有欠付現任太太家用的情況。

68.  本席認為,男方這樣的提款方式,顯示男方當時每月的家庭開支,應該只是介乎港幣30,000元之間,否則他不會在2014年2月和2014年3月,分別只提取港幣30,000元和20,000元便足夠應付開支,除非他還有其他的資金存放在別處。

男方的收入和謀生能力

69.  男方的代表律師在結案陳詞中指出,男方雖然沒有重大病痛,但男方一直以來都是全職工作,現時已59歲亦已正式退休,男方希望法庭認為男方不需繼續工作以支付家庭開支及女方的定期付款。

70.  男方一方面的立場是希望兒子中學完成後,到國外繼續升讀大學,而現時的人民幣教育基金,是留待日後兒子升學之用。男方甚至有需要在未來的日子需要考慮用其他的資源支付兒子的留學費用。男方代表律師在結案陳詞中亦已指出,日後有可能需要利用深圳物業再按揭,作為其他的資源,那麼在供款方面,必然需要男方或現任太太工作,才有經濟能力來支付日後按揭的需要,所以男方最少在他65歲前,仍必須要工作,因為根據男方的說法,現任太太是沒有能力賺取資金應付家庭開支。

71.  男方指出假若他在退休後需要重新找工作,他認為保安員的工作比較適合他。男方亦指出由於他是香港人而在深圳沒有戶籍,所以他不能在深圳買醫療保險及勞工保險,因此他是不能在深圳合法地工作。男方亦指出這個限制同樣適用於他身為香港永久居民的現任太太。

72.  有關男方適合的工作,男方指出,男方曾到過招聘會而得知香港的保安員的薪金,他指出工資較高的是在一些高級住宅而每更工作12小時的保安員工作,工資可達港幣14,000元。

73.  男方的看法是他沒有可能應付這種更制,由於他住的地方,最近關口不是二十四小時通關,因此他必須要從工作地點到達二十四小時通關的關口後,再轉成計程車回家,而每天來回大約不少於3小時的車程,這意味着男方只有每天9小時可以在家或休息的時間,他認為這樣對於他已是59歲的要求,實在太過苛刻。

74.  男方亦指出另一種保安員是每更8小時的編制,工資一般是港幣10,000元左右。男方指出,他被告知這種工作有時候要追更,即一名保安員要在工作8小時後,休息8小時,然後再工作8小時。男方認為,假若他要追更,當中的8小時是不足夠他回到深圳的家休息然後再到達工作場所的。

75.  男方在庭上作供時指出,廿四小時通關的關口離開他的家的車程大約需要半小時,所以本席認為如果他能夠積極認真地在元朗和上水區找尋工作,他應該可以找到合適的保安員工作。即使未能在元朗和上水區覓得合適的工作,從各區乘搭巴士和專線小巴到落馬洲,然後過皇崗亦很方便和快捷。

76.  不過根據男方證供顯示,本席認為過去他一直沒有積極找尋工作。男方只透過招聘會作為找尋工作的途徑,而過去他只去過四次。由於男方應該知道,自己是需要找尋工作才可以應付家庭的開支,卻沒有積極找尋工作,而事實上他是有工作的能力,而根據他的履歷,他理應可以找到保安員的工作,所以本席認為,男方應該有能力賺取每月港幣14,000元的能力,另外再加上他每月長俸收入港幣22,135元,本席評估他應該可每月最少有港幣36,135元的總收入。

男方的需要

77.  男方在他第2份經濟狀況陳述書內,填報他每月開支總額為港幣40,345元,這個支出包括每月給予女方港幣10,000元的生活費,因此若剔除每月支付女方的生活費,男方每月開支總額實為港幣30,345元。

78.  本席在上文第68段曾指出,根據過去男方提款數目的模式,本席認為,男方過去每月的家庭支出應該只是介乎港幣30,000元之間。

79.  代表男方的律師在結案陳詞中第85段指出,女方在2017年1月3日存檔的誓章中,女方亦認為男方的合理開支為港幣39,782元,這個數目當中包含了女方每月的10,000元生活費,所以女方當時亦認為男方的合理開支為港幣29,782元。

80.  不過代表男方的律師,繼而指出第2份經濟狀況陳述書所表達的計算方式並不是倚賴其開支和單據所得出的,而是一個男方就女方誓章的意見盡量縮減開支而執行的洗費預算。

81.  男方的代表律師指出,男方由於定居地點問題未能享有香港政府的醫療保障,而男方亦由於沒有足夠資金,所以即使一直希望為家人和自己買保險,亦未有執行。男方希望在他每月開支總額之上另加港幣3,000元,作為購買保險之用。

82.  男方的代表律師在結案陳詞中第92段指出,由於男方現在只有約港幣22,000元的長俸,因此男方即使是使用女方認為合理的生活預算也是入不敷支的,假若男方不需要付女方的贍養費,並以女方建議為合理開支為標準,即每月花費港幣29,782元,另加保險費港幣3,000元,男方認為,他每月的開支最少應為港幣32,782元。若以男方在第2份經濟狀況陳述書內,所計算的總開支為標準,則每月的開支最少應為港幣33,345元。

83.  女方的代表律師在他的結案陳詞的回覆中指出,男方的第2份經濟狀況陳述書內所填報的每月總開支,應還有可扣減的空間,女方的立場是應該可再扣減港幣8,480元。

84.  本席認為,男方所填報的一般開支、個人開支和子女開支的金額,有部份開支是可以作出調整的。

85.  男方在庭上作供時指出,退休之後一家人都沒有再去旅行,而最後一次全家去旅行是在2011年的時候。本席認為,在一般開支中現任太太外出旅遊費,應該扣除,因為現任太太每月開支零用已有港幣2,000元的支出,這個金額應包括了外出旅遊費的支出一併作每月預算。

86.  至於個人開支一欄,由於本席認為男方有工作能力,並且顧及他工作的需要,根據男方代表律師在結案陳詞中陳述,男方每天到香港工作的成本為港幣100元食物開支,本席因此將外出膳食費用一欄由港幣800元調高至港幣2,600元,涵蓋26天的工作天的需要。

87.  另外還有交通費(來回香港)一欄,根據男方代表律師在結案陳詞中陳述,男方每天到香港工作的交通費開支為港幣70元,本席因此將交通費(來回香港)一欄,以三十天計算,並由港幣800元調高至港幣2,100元。

88.  至於供養其他受養家屬(母親旅遊)一欄,本席會將有關支出剔除,因為在供養父母(母親)一欄,已有每月港幣1,500元的支出,同樣地若有任何旅遊的需要,亦應從供養父母的支出一欄涵蓋,一併作每月預算。

89.  至於子女開支,本席亦會將假期消費(回香港)和長假國內及國外旅遊的支出剔除,因為男方指出自從退休後一直都沒有旅遊。其次,在子女娛樂費/禮物一欄已有港幣300元支出,這個金額已足夠作為兒子的假期消費支出。

90.  本席會批准男方每月支出港幣3,000元為自己及家人購買醫療保險,不過本席亦會同時將男方在個人開支和子女開支的醫療/牙齒護理費一欄的支出剔除。

91.  綜合以上考慮,男方的每月合理開支應為:

一般開支金額(元)
  
公共設施雜費1,660.00
食物開支(3人包括家人外出膳食費用)5,000.00
雜項家用開支2,000.00
現任妻子開支零用2,000.00
 10,660.00
  
個人開支金額(元)
  
外出膳食費用2,600.00
交通費(來回香港)2,100.00
服装/鞋費300.00
個人儀容200.00
娛樂費/禮物300.00
假期消費200.00
保險費3,000.00
供養父母1,500.00
煙及報紙300.00
個人手提電話費127.00
 10,627.00
  
兒子開支金額(元)
  
學費/住宿2,640.00
額外補習費4,248.00
學校書簿及文具500.00
上學交通費(包括校車)500.00
娛樂費/禮物300.00
服装費/鞋費(連校服)1,280.00
午餐及零用錢2,500.00
 11,968.00

92.  經調整後,總數應為港幣33,255元。本席在上文第76段中指出,男方每月長俸收入為港幣22,135元,另外本席評估他應該可每月賺取港幣14,000元的工作能力,因此他每月的總收入應該可有港幣36,135元。本席認為,男方絕對有能力應付自己每月的開支,而且每月還應有大約港幣2,880元的盈餘。

女方的經濟狀況

女方的資產

93.  女方在她的經濟狀況陳述書內,填報她擁有一個自置物業,這個物業亦是她現時用作自住的居所(女方物業)。女方指出,女方物業是在2005年6月時候買入,現時按揭欠款尚欠約港幣500,000元,估計還有9年才償還所有按揭餘款。女方亦指出,現時每月的供款是港幣5,600元。

94.  女方現年57歲,換言之即大約到女方66歲的時候,女方物業的按揭才完全清還,屆時男方應是68歲,而男方到那時候是否還有工作能力,則是未知之數。

95.  就女方物業的市值,男方的估價為港幣4,080,000元,而女方的估價是港幣3,890,000元,男方指出取其平均數為港幣3,985,000元,若扣除尚欠銀行的按揭餘款,即大約淨值估計為港幣3,500,000元左右。

96.  除此之外,女方的銀行戶口結餘,只有微不足道的數目。另外女方人壽保險退保現金價值和強積金現時的價值,合共大約有港幣100,000元。不過,女方亦有欠家人的債務,大約港幣137,500元。

97.  女方指稱有三筆欠債,第一筆欠債是欠母親港幣100,000元,第二筆欠債是欠弟婦港幣16,000元,而最後一筆欠債是欠兄長前妻港幣21,500元。

98.  關於第一筆欠債,女方的證供指出,她的媽媽從來沒有要求或強迫她還錢,而該些借貸亦是從來沒有還清的。女方亦指出在過往多年,亦因為要購買藥物每月都需要向自己的母親借港幣2,000元,所以一向以來都是還款後,又再借款,女方亦確認她是從來沒有用任何文件或筆記記下她欠母親的數額,只是每次靠記憶去推算她大概欠母親的數額。

99.  女方亦承認她是沒有任何壓力需要償還這筆欠債,只是她假若不還款,她會有不良好的感覺。故此本席認為,即使女方真的有欠她的母親金錢,她亦沒有任何迫切還錢的需要。

100.  關於第二筆和第三筆的借款,男方的代表律師指出,同樣地女方跟借貸人士沒有任何文件或筆記記錄的,而女方亦指她們至今沒有要求她還款,因為兩位借貸人也分別有各自的工作,但女方指出難保他日這兩位借貸人士不工作的時候,她們可能需要女方還款。

101.  無論如何,根據女方的證供顯示,第二筆和第三筆的借款,同樣亦是沒有急切還款的需要。換言之這些借款,日後若要還清,亦要待女方資金充裕的時候,女方才有能力還清。

女方的收入

102.  關於女方的工作情況,女方指出,她最後的工作日期大約是2012年9月底至10月初。她指出離職原因是因為她患有抑鬱症,而這抑鬱症源自2002年已經出現。

103.  其次女方亦在2012年12月的時候在地鐵跌倒,為此她一共做了三次手術,現時右腳鑲有鋼片。女方表示她站立約1小時就會感到疲累及腳痛。

104.  女方作供時亦確認她自從2008年起開始因她的精神狀況而獲發傷殘津貼,而2014年前每月她都要花費大約港幣1,800元購買藥物,不過在2014年中評估後這些藥物被豁免收費。

105.  代表女方的律師指出,基於女方的學歷,教育程度只有小學畢業,女方在勞動市場很難找到不需要體力勞動的工作,加上女方的抑鬱病、乙型肝炎和2012年跌倒後所造成的傷患,令女方不能長時間站立及行動緩慢,所以代表女方的律師希望法庭接納女方基本上已沒有工作能力。

106.  自2008年起女方獲發政府的傷殘津貼,這個事實是不容置疑的。雖然代表男方的律師指出有關女方的抑鬱症,近期的診斷是她的病況有緩解,這並非表示她便脫離抑鬱症的困擾。其次女方在2012年受傷一事,亦是毋庸置疑的,她的腳患亦影響了她的工作能力。

107.  代表男方的律師指出,女方若不能繼續擔任售貨員的工作,因為售貨員的工作需要搬東西,而她的腳患令她不能做該類工作,女方可考慮停車場收銀員的工作。女方指出她不會考慮這樣的工作,因為要處理金錢,她恐怕出錯,所以她認為不合適自己。

108.  2007年命令裁定現時男方支付女方每月的生活費時,法庭當時認為女方有謀生能力,並裁定當時女方有賺取港幣4,000元的謀生能力。現時女方身體狀況,明顯比不上2007年的時候。即使如此,雖然女方說,因女方的腳患,影響了她的行動能力,這只影響需要站着工作的時候的能力,對一些坐着工作的工種,如收銀,應該沒有太大的影響。雖然女方說她怕處理金錢的工作會出錯,但本席認為若只是半天的工作,女方應該可以勝任。

109.  代表男方的律師指出,以最低工資時薪港幣36.5元,每星期工作五天,每天8小時的工資,女方每月應可賺取港幣5,840元,這個說法與2007年,法庭認為女方只有賺取港幣4,000元的謀生能力,不能磨合。

110.  本席認為,即使女方每星期工作五天,每天亦只可工作4小時,這樣的工作時間應該對女方較為輕鬆,考慮到現時她的身體狀況,因此本席認為女方應有能力賺取港幣2,920元的謀生能力。

女方的需要

111.  女方在她的經濟狀況陳述書內填報她每月一般開支是港幣10,497.76元,其中按揭供款佔港幣5,596.76元,若撇除每月按揭供款,她每月的一般開支應為港幣4,901元。

112.  至於她的個人開支方面,她填報每月支出為港幣5,300元。因此每月開支總額,若撇除每月按揭供款,應為港幣10,201元。若加上每月按揭供款在內,她每月開支總額應為港幣15,797.76元。

113.  男方代表律師認為,女方應將現時女方物業賣掉套現,然後買入一個較細的單位,一次過付款而不需每月支付按揭費用,就可省卻每月供款的支出。

114.  其次男方亦指出現時女方花費在保險的支出上,總共是每月港幣2,600元,而女方是購買了5份不同保障的保險,包括有人壽保險、意外保險、危疾保險、住院津貼和醫療保險。男方的立場是其中有些保險不是必須或合理的,男方認為合理的保險費應為每月港幣1,500元。其次男方亦指女方的交通費支出過高及不合理,男方認為合理的金額應為每月港幣300元。

115.  綜合以上,男方的代表律師認為,女方每月的總支出應為港幣8,801元。

116.  男方的代表律師在結案陳詞中第50段指出,由於女方因殘疾人士津貼每月可得港幣2,000元,另外男方亦認為女方應有謀生能力並可賺取每月港幣5,840元,男方亦認為女方另外每月會收取女兒或其他人提供約港幣2,500元的津貼,因此男方認為女方每月應有大約港幣10,340元的收入,所以男方認為女方足以支付自己每月的開支而無需要再倚賴男方的定期付款。

117.  男方對於女方在經濟狀況陳述書內填報的每月總開支,事實上只有三個環節認為應該作出調整,第一就是按揭供款的需要,第二就是交通費作出調整,而第三就是保險費作出調整。關於女方物業是否應該變賣套現這個課題,本席會稍後處理。

118.  女方五份保險中,其中人壽保險和2012年1月才開始買的危疾保險,事實上是可以省卻的。其餘的三份保險包括住院、意外和醫療,都是女方早年就開始購買,而且對女方提供的保障亦是必要和合理的。就這三份保險的每月支出,應為港幣1,600元,而非男方提出的港幣1,500元。

119.  至於女方的交通費,由於女方腳患的問題,有時需要乘坐的士亦在所難免,而且女方乘坐的交通工具亦未必所有交通工具都會有殘疾人士公共汽車優惠,所以每月在交通費的支出為港幣600元 ,本席認為亦是合理的。

120.  綜合以上的調整,未包括供款的支出在內,女方每月的合理總支出應為港幣9,201元,若加上每月按揭供款支出,則為港幣14,797元。

經濟狀況的轉變

121.  由2007命令至今已有10年,毋庸置疑男女雙方的經濟條件,事實上都有重大的改變。就男方而然,男方已經在2013年退休,就從前每月的收入與每月長俸收入比較當然有很大的差別,所以男方必須以他的一筆過退休金作每月補貼,即使他仍然有謀生的能力,因為隨着他的兒子長大,兒子在學業上的需要和支出亦相繼增加。縱然男方的財富比2007年的時候是有所增加,他亦需要預留金錢,作日後的生活上需要,而需量入為出。

122.  至於女方方面,隨着她的年紀和健康狀況的改變,亦直接影響了她的謀生能力,不過另一方面,女方物業,亦隨着多年的供款及物業的升值,為她帶來了一筆可觀的資產。

考慮全部因素以後,法庭應作出甚麼命令

123.  首先本席在上文第120段指出,若加上女方每月按揭供款支出,女方每月的合理總支出應為港幣14,797元。本席亦在上文第110段指出,本席認為女方應有能力賺取港幣2,920元的謀生能力,另加她每月的傷殘津貼港幣2,000元,她每月應有港幣4,920元的收入。

124.  本席並不認同男方代表律師指女方另外每月會收取女兒或他人提供約港幣2,500元的津貼,因為這些男方指稱的人士並無必然的法律責任需要持續協助女方,包括她的女兒在內,因此若加上男方每月港幣10,000元的生活費,女方剛好做到收支平衡。

125.  不過本席在上文第92段指出,即使男方每月賺取港幣14,000元,扣除了本席認為他的合理開支後,他每月只有大約2,880元的盈餘。

126.  雖然男方倘有兩筆資產可以作每月補貼,第一筆是本席認為他應該賣掉的私家車而得出的資金,即港幣200,00元,而第二筆就是他的人民幣教育基金,折合港幣計算大約是840,000元。然而本席認為,他的人民幣教育基金,亦應為他的家庭生活上的需要及兒子學業上的需要,作為日後的撥備。

127.  其次,女方雖然有住屋的需要,因此需要付上按揭的支出,這個支出亦同時為女方帶來儲蓄的效果。無形中,是以男方的財富來為女方積聚資產。雖然女方強調她不會把女方物業賣掉,因為她希望留給女兒,女方物業作為一個貴重資產,亦應該好好善用,以解決女方生活上的支出和需要。

128.  男方代表律師指出,女方應把女方物業賣出套現,而利用賣出物業後所得的資金,再去購入一個較細的單位,從而令自己無需再因為居住條件而每月面對供樓按揭開支。

129.  本席在上文第120段指出,若女方沒有按揭供款的需要,她每月的合理總支出應為港幣9,201元,扣除她每月應有港幣4,920元的收入,她還欠每月港幣4,281元。除非她樓換樓之後,還能為她帶來一筆資金盈餘,否則亦是無補於事。

130.  在庭上女方指出,她現時居住的物業同類型的單位租金為每月港幣10,000至12,000元。毋庸置疑,女方物業若賣出並扣除尚欠的按揭餘款,淨值亦應該大約有港幣3,500,000元,不過屆時由於她有這一筆財富,她可能不能領取傷殘人士津貼。若然女方利用這些資金,租同類型的物業居住,那麼她每月的總開支,應大約為港幣20,000元左右。若將售樓所得的資金用作補貼生活上的支出,可用上大約14年半,屆時女方大約是71至72歲左右。

131.  本席認為女方即使作好這樣的賣樓套現準備,女方亦需要一些時間作出安排。雖然現時女方物業是一項資產,然而套現需時,現階段她每月的支出必然是倚靠男方的供養。

132.  較早前,本席已指出男方應該在2016年3月的時候就將他的私家車變賣套現,因此應該會得出港幣200,000元的資金用作補貼男方所有的支出需要,包括支付女方每月的生活費。

133.  以此計算,本席在上文第92段中指出,男方每月應有盈餘大約港幣2,880元,而男方每月需支付女方港幣10,000元的生活費,則每月欠港幣7,120元,若以港幣200,000元的資金用作每月補貼,可補貼28個月,即兩年四個月,而由2016年3月作計算,即2018年6月,補貼完結。

134.  基於以上的分析,本席相信男方是有能力每月支付港幣10,000元作為女方現時的贍養費直至2018年6月。屆時本席亦可以合理地預期過去經濟上依賴男方的女方會找到經濟來源去達致雙方財政獨立。

135.  其次男方的申請,最終希望將女方的贍養費更改為象徵式贍養費,女方仍然保留贍養費的權利。

命令

136.  在考慮了所有情況後,本席作出以下命令:

(1) 批准男方要求根據區域法院暫委法官黃敬華 (當時官階)在2007年8月28日頒發之命令由2018年7月1日更改為男方須每年支付女方象徵式港幣1元的贍養費,上述款項適用於雙方共同在生之年,或直至女方再婚為止,兩者以較先發生者為準;

(2)在2018年7月1日之前,原有2007年8月28日頒發之命令維持不變。

訟費

137.  既然男女雙方在本聆訊中都沒有完全成功,本席認為公平的處理方法,就是不作任何訟費命令,包括所有保留訟費,而女方自身的訟費則按法律援助規例評定,此訟費命令為暫準命令,在本判案書日起的14天後,若雙方沒有任何訟費命令申請則轉為絕對命令。

  

  

 (張志偉)
 區域法院暫委法官

第一申請人:李胡律師行延聘陳錫熹大律師代表出席聆訊

第二申請人:周啟邦律師事務所的何慶聰律師代表出席聆訊

60051-EN-2007-08-28

C v. L

HTML content

FCJA No. 1467/2001

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

JOINT APPLICATION NO. 1467 OF 2001

__________________

BETWEEN

 C1st Applicant
 and 
 L2nd Applicant

__________________

 

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

Date of Hearing : 5th and 20th July 2007

Date of Handing Down of Decision : 28th August 2007

 

__________________

DECISION

__________________

 

1.    This is an application of the 1st Applicant husband (“Husband”) against the 2nd Applicant wife (“Wife”) by summons dated 3rd August 2006 for an order that two maintenance orders in favour of the Wife respectively dated 8th April 2002 and 12th December 2002 be “varied or suspended or discharged” (“variation summons”).

Background

2.    On 26th July 1985, the Husband and the Wife married. The Husband was then and is still a civil servant. After the marriage the Wife was a housewife. There is one child of the marriage, SY, who was born on 21st January 1986. 

3.    In January 1993, the relationship broke down. The parties separated, having living together for 7½ years.

4.  After about 8½ years of separation and on 21st November 2001, they made a joint application for divorce. It was the application of the parties that the custody of SY, then aged 15 and studying in UK, was given to the Wife. It was also stated in the joint application that the Husband would pay upon divorce $25,000 and $5,000 respectively as the maintenance of Wife and SY and a further sum of $5,000 as SY’s education expenses.

5.    A decree nisi of divorce was granted on 8th February 2002.

6.    The parties were then unrepresented. By an order of the Court dated 8th April 2002, custody of SY was granted to the Wife. It was also ordered, inter alia, that the Husband do pay the Wife as from 1st May 2002 a total sum of $30,000 per month, being periodical payment of respectively $25,000 and $5,000 to her and SY as maintenance. The periodical payment to SY has to be made until SY attained the age of 18 or completion of full time education, whichever was later (“1st Order”).

7.    Three days later and on 11th April 2002, the Husband was adjudged bankrupt by the bankruptcy court. 

8.   The decree nisi was made absolute on 18th April 2002.

9.    After the Husband was adjudged bankrupt, the Official Receiver and the Wife came to an agreement that the maintenance for her and SY be reduced to a total of $20,000 per month during the validity of the Husband’s bankruptcy order.

10.   The Husband married his second wife on 19th August 2002. In fact, prior to the divorce application and on 21st January 2001, a boy, CY was born to the Husband and his second wife.

11.   Despite the agreement to reduce, the Husband still defaulted in payment of the periodical payment. A judgment summons was issued on 14th November 2002 with a view to compel payment. It was then not in dispute that the Husband was entitled to claim education allowance from the Hong Kong SAR Government on a reimbursement basis. Their arrangement was that the Wife would first of all settle the education expenses of SY and sent the receipts to the Husband for reimbursement from the government. It is also not in dispute that the Husband was only entitled to partial reimbursements from the government. He would then return to the Wife all reimbursements he received from the government. 

12.   On 12th December 2002, upon the acknowledgement of the Husband that he owed the Wife a sum of $210,200, being reimbursed education allowance which he failed to return to the Wife, outstanding maintenance and costs, and his undertaking to repay the same by 12 monthly installments, the Court suspended the maintenance payable under the 1st Order during the validity of the said bankruptcy order and varied the Wife’s monthly maintenance downward to that agreed between the Wife and Official Receiver until further order (“2nd Order”). Of the $20,000 payable, $5,000 was for maintenance of SY and $15,000 for the Wife. An attachment of income order was also granted.

13.   It is the unchallenged evidence of the Husband that his bankruptcy order was discharged four years later on 11th April 2006.

14.   On 3rd August 2006, the Husband took out the variation summons. It is the Husband’s contentions that SY has completed full-time education and the wife should be self-supporting by now. No periodical payment should be payable to the Wife and SY. At trial he made an open offer to pay the Wife’s maintenance at a rate of $7,500 per month on the top of a monthly sum of $5,000 being repayment of his debt acknowledged under the 2nd Order.

15.   On 14th February 2007, the Court made an interim order on the Wife’s maintenance and varied the same to $7,500 as from 1st March 2007 until disposal of the Husband’s variation summons. The attachment of income order was also discharged.

16.   On 21st May 2007, the Wife fought back by taking out a summons to commit the Husband to prison on the ground of his failure to honour his undertakings to the Court to pay the outstanding totalling $210,200 embodied in the 2nd Order (“committing summons”).

17.   On 21st June 2007, the Court ordered that the committal summons be adjourned to be heard until after the disposal of the variation summons.

The Applicable Principles

18.   There is no dispute that the application is made under section 11(1) and 11(7) of the Matrimonial Proceedings And Property Ordinance, Cap 192 (“MPPO”) which stipulates that:

“(1)Where the court has made an order to which this section applies, then, subject to the provisions of this section, the court shall have power to vary or discharge the order or to suspend any provision thereof temporarily and to revive the operation of any provision so suspended.
  ....
 (7)In exercising the powers conferred by this section the court shall have regard to all the circumstances of the case, including any change in any of the matters to which the court was required to have regard when making the order to which the application relates and, where the party against whom that order was made has died, the changed circumstances resulting from his or her death.”

19.   These provisions empower the Court to vary the periodical payment to a party in divorce proceedings having regards to all the circumstances, including any changes of circumstances in matters set out in section 7 of the MPPO which the Court is required to have regard when making the original maintenance order.

20.  In S v Y (unreported) FCMC 8775/1998 21st June 2007, the learned Deputy District Judge Levy has helpfully summarized some of the relevant principles governing variation application that can be derived from authorities as follows:

“(1)The court is to have regard to all circumstances of the case, including a regard to the circumstances de novo;[1]
 (2)A duty to make full and frank disclosure, a breach of which duty by a party may lead to an adverse inference being drawn by the court;[2]
 (3)A financially dependent wife should be reasonably expected to find a means to be self-sufficient in order to achieve financial independence;[3]
 (4)When a husband has remarried, a court – in considering the financial circumstances of this husband – is required to take into account the circumstances of his new family, including the financial resources of the new spouse[4] as well as his obligation to such a family.[5]  A court should not threaten a husband with an excessive order in exchange for his agreement to continue maintaining a former spouse;[6]
 (5)There is no room for “defaulting husbands” for using a financial hardship induced by them as a change of circumstances;[7] and
 (6)The exercise of a court’s power is wide and unrestricted – including a power to terminate periodical payments[8] as well as to back-date an order of variation[9] – and, the overall objective is to achieve a fair outcome.[10]”

21.  Although not all the above principles are relevant to the present case, I shall, whenever relevant, apply these principles to the facts of the present case.

The Application and Issues

22.  Despite the jurisdiction of the Court to backdate the variation of a maintenance order, Mr. Wu, solicitor for the Husband, only seeks to vary the Wife’s maintenance as from 3rd August 2006, the date on which the Husband took out the variation summons. Although it is also not in dispute that SY, now 21 of age, has already ceased full-time education, there is dispute as to when she stopped her full-time education. Issue as to whether the Wife has been overpaid arisen. The Husband alleged that SY had stopped full-time education in England since December 2005 and had since been working. He claimed that maintenance should have been stopped as from December 2005. As such there has been overpayment to the Wife of SY’s maintenance in the sum of $75,000 (15 months from December 2005 to February 2007).  Such sum needs be set off against the sum of $210,200 due and owing to the Wife, leaving a balance of only $135,200. However, it is the Wife’s contention that SY only ceased full-time education after August 2006 after the Husband had taken out the variation summons.

23.  Mr. Wu also did not seek an order to remit the outstanding sum of $210,200 which the Husband has acknowledged and undertaken to pay to the Wife under the 2nd Order. However, the Husband admitted that he did not have money to pay the same in one lump sum. In any event he promised to repay by monthly installments of $5,000 until full payment.

24.  The grounds of the Husband’s application can be summarized as follows:

i)he has remarried and now has a new family with a son aged 6. His financial situation has changed since the 2nd Order. His future financial responsibility towards the family will increase when his son grows older. He has not the ability to maintain his new family as well as the Wife;
ii)he is now 49 and is going to retire at the age of 55, some 6 years later. His income will be descending upon his retirement. His pension has to be reserved for support of his new family;
iii)the Wife is at working age and should be self-supporting by now. There is no reason why she should not work and be dependent on him for ever;
iv)the Wife liabilities and health are not as bad as what she has described;
v)the Wife purchased a landed property in 2005 and has  sufficient assets to support herself;
vi)the maintenance is meant for the Wife’s reasonable requirement and not for her to pay off the mortgage of the landed property; and
vii)SY is working and will be contribution to the household expenses and mortgage loan of the Wife.

25.   The Wife opposed the application but makes an open offer to accept a downward adjusted sum of $10,000 per month, which was rejected by the Husband. As stated above, on the second date of trial, the Husband told the Court when testifying in the witness box that he was willing to pay maintenance of $7,500 a month to the Wife in addition to a monthly payment of $5,000 until any outstanding is fully repaid. This proposal obviously did not receive favourable response from the Wife.

26.   The Wife’s contentions can be summarized as follows. Her health was poor. Her depression, deteriorating hepatitis B and other chronic diseases prevented her from working. Secondly, SY has just become an insurance agent having monthly earning of only about $1,000 to $3,000, which is insufficient even to support herself. Thirdly, the Husband was able to maintain his new family in the past with his income less the maintenance of $20,000 for the last 4 years. There is no reason why he cannot make it now. He should have sufficient income to maintain her and to repay the outstanding debt to her. Fourthly, there is no change of circumstances as CY and the Husband’s second marriage all took place before the 2nd Order. Fifthly, having regard to the fact the family living in a unit in Heng Fa Chuen of about 930 square feet prior to the divorce, it is reasonable for her to own her own property.

27.   As set out in the above, in a variation application, the Court is obliged to have regards to all circumstances, including doing the assessment de novo in order to achieve a just and equitable result. The Court will look at the application on the basis of the parties’ means and liabilities at the time the case is before it. In the circumstances of this case I consider it unnecessary to evaluate or criticize the 2nd Order, which is a consent order and then restrict the consideration to whether there has been any change of circumstances since that order. I consider the issues that fall to be determined in the particular circumstances of this case are:

i)whether the Wife should be credited with an earning capacity such that a notional income should be attached to her even if she is not working now;
ii)the financial resources of the Husband and his liabilities;
iii)the reasonable need of the Wife in the circumstances; and
iv)when SY stopped her full time education whereby the maintenance in her favour should be coming to a stop; and whether, and if so, how much the Wife has been overpaid;

28.   The Husband filed three affirmations (including Form E) in support of his application while the Wife has filed a total of 4 affirmations (including Form E) in opposition.

Earning Capacity of the Wife

29.   The Wife was 41 when divorced and is now 46. She received only primary education. Although it is common ground that the Wife was basically a housewife prior to divorce, there is some evidence showing that she might have undertaken at least some part-time or temporary jobs during the marriage. In part 5.3 of the Form E affirmed by the Wife on 25th September 2006 which she confirmed to be true and correct, she described the standard of living enjoyed by the family prior to divorce. Apart from stating that she used to live in a residential unit of 980 square feet, she was also saying that she used her own earning to support her daughter for overseas vacation once a year, as well using the same to hire a domestic helper. In any event, it is not in dispute that after divorce, she has gone out for work, at least since March 2003 as a sales promoter earning an average of $6,421.10 per month.

30.   She stated in the same Form E that she was suffering from hepatitis B that required treatment by medication. It was also stated therein that she had kidney problem, asthma and a recent infection of nerve that had not yet fully recovered.  She also claimed that she was suffering from loss of appetite and insomnia caused by depression.  She was now in the course of applying for disability allowance from the government.

31.   It is also her evidence that when she wanted to purchase an insurance policy in early 2007, her application was rejected by the insurer on ground of her abnormal liver function. According to her doctor, the drug she used to take could not control her hepatitis B recently. There was some change in her liver enzyme level. She felt tired easily because of this change and a new drug had been prescribed to control her condition. As her health deteriorated, she was advised to and did resign from her work in February 2007.  She produced two medical certificates dated February and March this year advising that she should take rest of respectively six weeks and two to three months.  She was also referred to consult psychiatrist.

32.   She produced receipts for payment of new drug which cost her $1,818 per month as from May 2007.

33.   In her second opposing affirmation filed in February 2007 (page 188 of Bundle A) she claimed a medical report from Pamela Youde Nethersole Hospital would be available in April 2007 regarding her liver problem. However, up until now no such report is produced ass evidence.

34.   I have observed the Wife giving evidence in the witness box for two days. She was moody and obviously, has not yet recovered from the trauma and pain brought about by the divorce despite the fact that it took place some 6 years ago. However, she appears to be me to be generally in good health and was articulate. It is true the Wife has to take care of SY during the separation period and therefore may not be able to go to work when SY was still young. However, it was not in dispute that SY went to study in England in or about 2000. The Wife was then aged about 40 and should be able to work without any difficulty with a view to be self-supporting. However, given her education background and lack of full-time employment experience, I accept that she may only be able to find jobs at the lower end market with a poor salary and may not be able to maintain a life comparable to that enjoyed by her prior to separation.

35.   I find her a lady who is not unwilling to work, but who may have been troubled by the Husband’s recent application and become very worried, particularly in light of her recent deteriorating health condition. However, unless there is medical evidence confirming that her health and medical condition are such that she is permanently unfit for any type of employment, which evidence is lacking at least for the time being, I consider the Wife having an earning capacity. But since there is unchallenged medical evidence advising her to rest for a short period of time, I am prepared to accept that her liver condition may have partially affected her in her work. She may have to work part-time or cannot stay in her job for long and therefore may not be able to secure a continuous employment. Her last salary is about $6,400 (see page A39). I attach a notional income of $4,000 per month to her earning capacity, which is roughly two-third of her last salary, for the purpose of assessing the quantum of her maintenance.

Financial Resources and Obligations of the Husband

36.   The Husband, now aged 49, is a civil servant since 1978. According to his evidence in Court, his latest salary after the recent upward adjustment is about $47,000 per month. Before the adjustment, his salary was only $44,965 which was reduced from $47,506 over the past three years and since the 2nd Order was made. He was made bankrupt on 11th April 2002. His son of the second marriage, CY, was born a few months before his bankruptcy and his second marriage a few months after.

37.   He is now living with his second wife (aged 28) (page A165) and CY (aged 6) (page A166) in a residential unit in the Lo Wu District of Shenzhen across the border (“Shenzhen Property”). This property was about 110.9 m² (above 1,200 ft²) and was purchased in or about October 2003 at a price of RMB840,000. He alleged the initial expenses and deposit of about RMB200,000 were all paid by his second wife. The balance was raised by a loan of RMB670,000 secured by a mortgage in favour of a PRC bank. The loan is repayable in 20 years ending October 2023 with a monthly installment of about RMB5,000 at the time of trial (RMB4,600 according to page A115). The said property was registered in the name of his second wife (page 218 of Bundle A). It is the Husband’s contention that this Shenzhen Property belongs to his second wife and he has no interest in it.

38.   It is the Husband’s case that his second wife was a trader of cosmetics before marriage. The deposit of his Shenzhen matrimonial home of about RMB200,000 was paid by her using profit she derived from her cosmetic trading business. After marriage his second wife ceased working. The mortgage payment was paid by him out of the household expenses he handed to his second wife. He claimed that he had no idea of the profit made by his second wife in her cosmetic trading.

39.   Despite the fact that he lives in his Shenzhen matrimonial home and therefore needs to travel across the border almost 26 working days per month, he maintains another 2-bedroom quarter of about 700 square feet in Heng Fa Chuen. It costs him about $3,132 per month for rental and other utilities. The Husband said that his second wife and CY usually visited Hong Kong two to three times a month to spend their holidays and seeing his mother, who was now aged 76. The family of three would stay in his quarter while they are in Hong Kong otherwise he may end up paying a hotel bill which is more expensive. There is therefore a need to maintain this second household in Hong Kong.

40.   In his 1st affirmation filed on 4th August 2006, he set out in details the monthly expenses of himself, his wife, his two households and CY in the total sum of $45,562. He said in paragraph 10 of the same affirmation that by reasons of his expenses, he “… could hardly find any money to support the Respondent [Wife]”. In the Form E filed by him on 27th September 2006 (page A109), he listed out his total “current” expenses are $45,562. There are also boxes in Form E for him to put in his anticipated future expenses (section 4.4). However, when cross-examined by Mr. Chan, solicitor for the Wife, he admitted that the listed particulars in the aforesaid affirmations are not in fact actual expenses. He said that in the years when he was required to pay $20,000 to the Wife and SY as monthly maintenance, he was forced to compress his spending to $22,719 (see page A167) or even to about $15,000 after tax (when being cross-examined). The actual living expenses are abnormal and unreasonably low for a family with that income level. Many activities which his son CY ought to have joined such as learning to play piano have not been joined due to his financial constrain. Those listed in the two affirmations are spending which he ought to have spent had his liability to maintain the Wife been extinguished. In the cross-examination he admitted that for at least four years prior to the interim order reducing the maintenance to $7,500, he and his new family managed to live on a sum of about $20,000 odd, being his salary of about $45,000 less the $20,000 maintenance paid to the Wife. 

41.   I am in fact very surprised by his above answers. It has been stated in those affirmations that they are his current expenses and not anticipatedexpenses or expenses reasonably expected to be incurred by a family of that income level. Now that the Husband confirmed what he has said is not what it appears to mean. Mr. Wu for the Husband did not see fit to cover the actual expenses when the witness was in the box. The Husband simply failed to disclose most of his actual expenses. I therefore have to do an assessment of his reasonable expenses without assistance of his actual expenses.

42.   Furthermore, I find it difficult to believe that the Husband has no idea of the financial capability of his second wife, or the amount of profit she has made in her cosmetic trading business. The Husband’s second marriage and birth of CY came about at his most difficult time in 2002, at least financially, when he was adjudged bankrupt. All his assets were then vested in the trustee in bankruptcy. His only source of income is his monthly salary. It must be a time of financial crisis to the Husband.  It is therefore reasonable to expect this new couple to seriously consider each other’s financial position and capabilities before deciding any asset acquisition. The Shenzhen Property was purchased with an initial payment of RMB200,000, which is not insignificant to this new family. The family has to further commit about $5,000 monthly as mortgage payment, which amounts to about one-third of the family’s monthly disposal income. I find the Husband’s allegation that he did not know the profit of his second wife, who was then only 23 but could come up with RMB200,000 because there was no written record, totally unbelievable. Obviously he was avoiding telling the truth to the court. 

43.   Although there is no direct evidence to suggest that this RMB200,000 comes from the overseas educational allowance which he failed to reimburse the Wife, I tend to believe that either the Husband has undisclosed financial resources at the time of the bankruptcy sufficient for him to pay the down payment of the Shenzhen Property, or his second wife has reasonably good financial resources and can contribute towards the acquisition of the Shenzhen Property as well as to his present household expenses. Although it is established that a second wife’s income cannot be taken into account as part of the husband’s income available for distribution to the former wife and children, in so far as the husband’s ability to provide maintenance for his first wife is affected by his second wife’s contribution to the new family, it is relevant to consider the extent to which the second wife is able to contribute to the new family out of her own resources: see Whitfield v Whitfield (1986) 1 FLR 99 as per Sir John Arnold P. I consider that the Husband has not made full disclosure of his and his second wife’s financial position. I am prepares to draw an adverse inference that his second wife has contributed at least partially to his present household expenses.

44.   Turning to the “reasonable” expenses of the Husband listed in Form E, I have the following observations:

Hong Kong Quarter
i)I accept it reasonable to maintain the Hong Kong quarter but consider its expenses in the region of $2,800 (rental inclusive of rates and management fee of $2,182 plus utilities and other household expenses). According to the Husband’s evidence, he lives in the Shenzhen Property and uses this for holidays only two to three times a month;
His personal Expenses
ii)The Husband’s breakdown for expenses for meals out of home is arrived at as follows: (Breakfast $20 + Lunch $40 + Dinner $50) x 30 days. According to the Husband he returned to his Shenzhen home everyday after work and hence incurs $4,170 as his transportation expenses. I would expect that he will be having dinner at home some time of the week. I therefore allow his out of home meals expenses a sum of $2,400 arrived at as follows: ($20+$40) x 30 + $40 x15;
iii)Clothing expenses of $1,000 per month be adjusted down to $500;
iv)Entertainment expenses are reduced from $2,000 per month to $800. The Husband’s evidence is that it is mainly for gifts to colleagues and meals with colleagues and expenses when family members are in Hong Kong;
v)The Husband claims expenses of $1,800 per month for cigarettes and newspapers. That is based on a daily consumption of two packs of cigarette. In cross-examination he admitted because of his tight financial situation in the past four years, he sometimes consumed half to one pack per day. It is reasonable to have this expenses cut to $450;
vi)It is the Husband’s evidence in the answer to questionnaires that he has two brothers. His mother is living with his eldest brother. The maintenance to his mother should be adjusted downward to $1,000;
Shenzhen Household
vii)The mortgage payment should be adjusted up to $5,000 instead of $4,600 as documentary evidence now stands;
viii)As his second wife is not working and is a full-time housewife, the expenses of $1,000 for domestic helper can be saved;
ix)It is reasonable to adjust the food and household expenses to $2,000 and $800 respectively;
The second wife
x)Expenses for out of home meal for the second wife should be adjusted downward to $800 from $1,800 because I have allowed a sum of $2,000 as food expenses for the household;
xi)Clothing, personal grooming, and entertainment for her should be reduced by $1,000, 100 and $500 respectively to $500 for each item;
xii)The monthly holiday expenses for his second wife are $2,000 which amounts to $24,000 annually. The Husband explained this amount represents the expenses for his family to visit his mother-in-law in Heilongjiang Province twice a year. I think it is reasonable to reduce it to $700 per month, which is about $8,400 annually;
CY
xiii)I accept that the school fee for the coming term should be $1,413 instead of $950. I do not intend to reduce the expenses of any of the items for CY.

45.   An estimate of the reasonable monthly expenses of the Husband is as follows:

 AmountTotal 
Hang Fa Chuen Quarter$2,800$2,800 
His personal expenses   
-meals out of home$2,400  
-transportation$4,170  
-clothing$500  
-entertainment/presents$800  
-tax$5,000  
-dependent mother$1,000  
-cigarettes and newspapers$450$14,320 
    
Shenzhen Household   
-mortgage$5,000  
-utilities$400  
-management fees$460  
-food$2,000  
-household expenses$800$8,660 
    
His second wife   
-meals out of home$800  
-transportation$500  
-clothing$500  
-personal grooming$500  
-entertainment$500  
-holidays visiting parents$700  
-medical/dental$400$3,900 
    
CY   
-school fees$1,413  
-extra tuition fees$600  
-transportation to school$50  
-medical/dental$400  
-clothing$500  
-other school activities$400$3,363 
 Total$33,043 
Rounded down to$33,000 

46.   Taking into consideration of the Husband monthly salary of $47,000, he should have at least about $14,000 available for maintenance of the Wife, if such need arises. It must be born in mind that the Husband confirmed under oath that in the past four years he has been able to compress his spending to not more than what has been left from his salary after deduction of $20,000, i.e. about 25,000 or even less. In terms of disposable income i.e. by taking tax of $5,000 off the above sum, the amount arrived at in the preceding paragraph represents a 40% increase in the Husband’s spending ([$33,000 -$25,000] ÷ [$25,000 - $5,000]). The increase is substantial at any rate.

47.   The husband has just been discharged from bankruptcy. He said in the Form E that he had no debts for the time being, save and except the said sum of $210,200 to the Wife, less any overpayment that the Court may find. He also confirms that he will be retiring at the age of 55, i.e. around February 2013. It is estimated that he will be receiving a lump sum of about $2,740,000 and a monthly payment of about $16,300. He said by then his second wife will be aged only 34 and CY about 12. They still need his support, and for CY at least for another 10 years before he finishes his tertiary education. He has to top up the monthly payment to meet his family expenses of about $45,000 per month. It is his estimate that the lump sum will all be used up before his son finishes university. He alleged that this lump sum should in any event not be available to the Wife upon his retirement.

48.   The Husband establishes his new family mid-life. It must be within his contemplation that he cannot stop working at the age of 55, unless he has other sources of income. His expectation to retire at 55 is unrealistic. He must continue to work for some years beyond 55 otherwise he may not have enough for a comfortable retirement when CY finishes education. His second wife is still young and has to work too, if need arises. In any event, a man at the age of 55 is still full of energy and is not too old to work. Furthermore, I have come to a level which is only $34,000 and not $45,000. Even assuming he would retire at the age of 55, it would be reasonable to assume the Husband doing what a reasonable and prudent retired person would do, i.e. to take reasonable step to invest and manage  his assets. In that light I cannot see how this lump sum will be fully depleted in 10 years time as alleged by him. 

49.   I notice that the solicitor for the Wife has proposed the periodical payment be converted to a lump sum upon the Husband’s retirement. It will not be appropriate at this stage to say whether the Wife is entitled to share his pension as no formal application has been made and the parties are not been given an opportunity to fully argue this matter. 

Financial Resources and Reasonable Needs of the Wife

50.   I have already considered that the Wife should be attached with a notional earning capacity of $4,000 per month.

51.   I accept that she needs to incur $1,818 as expenses on drugs for her liver problem. These drugs were prescribed by government doctors. They are not subsidized drugs and therefore she has to pay for them. In the cross-examination, she admitted that she has been maintaining five insurance policies covering accident, medical (including hospitalization), life and retirement which cost her $2,339 a month, which is quite substantial compared with her earning capacity. I have briefly gone through the brief policies information annexed to her Form E. The retirement insurance is basically an investment plan maturing on a future date. The others are for her added protection in case of emergency. Some will only benefit her estate. However, the Wife is now receiving her psychiatric and liver treatment from government clinics and hospitals. She relies on medical service provided by the government. I do not think these policies reasonable requirement in the circumstances of her case and would therefore disallow them. I also disallow $690 being insurance premium for SY’s six insurance policies.

52.   In her Form E affirmed on 25th September 2006, she claimed a sum of $5,252.3 for maintenance of SY. However, it was her evidence that SY quitted her study after August 2006 in view of the Husband’s present application and received training as an insurance agent now earning between $1,000 and $3,000 a month. I accept her evidence in this respect. SY is now 21 and is working. Although given her income level she may not be able to make any contribution towards the household expenses, she is obviously self-supporting and all the expenses incurred on her behalf will be disallowed.

53.   It is not in dispute that the Wife purchased a residential unit in Ching Lai Court in Kwai Chung (“Ching Lai Property”) in May 2005 at a price of $1.05 million. She paid an initial deposit of 5% amounting to $52,500 and the balance of slightly less than 1 million was raised by way of mortgage with the Standard Chartered Bank repayable in 20 years with a monthly installment of initially $5,835.94, now rising to $7,065 because of upward adjustment of interest rate.

54.   During cross-examination, she was seriously questioned on why she needed to purchase a landed property instead of applying for public housing. She explained that since 2002 she had changed her living places 4 times because the rented premises were undesirable.  She felt so unsecured. She had tried to apply for public housing but was told that she was not qualified because she was receiving a regular maintenance of $20,000 monthly. She therefore purchased her own property in order to avoid moving again. It is a 2-bedroom flat of about 500 square feet.  She admitted that the monthly rental for a comparable flat is around $6,000.

55.   Although I accept her explanation for purchasing the Ching Lai Property, I will only allow $6,000 for her accommodation (inclusive of management fee), as the monthly mortgage payment comprises a payment of capital in nature. In the circumstances of the parties’ financial situation I do not consider it appropriate for any capital accumulation to her, at least for the time being. I would also allow $1,177 as her utility expenses. This is a sum suggested by Mr. Wu in the cross-examination and accepted by her.

56.   In relation to her other expenses, I have the following views:

i)I would disallow $480 for a part-time domestic helper;
ii)While I consider that one has a moral obligation to maintain one’s parent, there is no duty on the Husband to maintain the mother of the Wife. Accordingly I disallow the payment of $834;
iii)Donation to charities of $250 is also not permitted.

57.   The reasonable expenses of the Wife are therefore as follows:

  Total 
General Expenses   
-accommodation$6,000  
-utilities$1,177  
-food$1,500  
-general household expenses$500$9,177 
    
Personal Expenses   
-meals out of home$1,000  
-transportation$600  
-personal grooming$500  
-entertainment/gifts$200  
-holidays$400  
-medical/dental$265  
-special drugs for hepatitis$1818$4,783 
 Total:$13,960 
round up to$14,000 

58.   There is also dispute as to whether the Wife is indebted to her relatives, including her mother and SY’s boyfriend. The Wife said that since the husband failed to return to her the overseas education allowance reimbursed from the government in 2002, she had since then not sent the receipts to the Husband for further claiming. She said she had borrowed some $250,000 from her mother for SY’s UK education.  A sum of $150,000 is still outstanding. In 2007, since she was unable to work due to health reason, coupled with the fact that her maintenance has been reduced to $7,500 and that she had to raise fund to pay her legal fees, she had borrowed a total of $109,500 from her relatives and SY’s boyfriend. The Husband was unable to find evidence to rebut such debts, save and except putting the Wife to strict proof of these facts. After hearing the evidence from the Wife and reading the documents exhibited, I accept her evidence that she is now in debt of $259,500.

When SY Stopped Full-time Education

59.   It is the Husband’s case that after this variation application has been taken out, he learned for the first time from the Wife during one of the Court hearings that SY had returned from UK in December 2005. As such he would like to claim overpayment of maintenance for SY at the rate of $5,000 per month from the Wife as from December 2005 up until February 2007 (both months inclusive).

60.   In the cross-examination, he did not deny that he now did not enjoy as good a relationship with SY as some years ago. SY did not give him any call despite the fact that he issued mobile phone card to her. His evidence was that for about 2½ years he had not even heard her voice. He even admitted that at the hearing on 14th February 2007, he mistook SY to be a clerk of the solicitors acting for the Wife until SY took the initiative to talk to him.

61.   On the other hand, Mr. Chan on behalf of the Wife produced certificate that SY had completed courses organized by the Vocational Training Council (“VTC”). According to the evidence of the Wife, SY attended courses on hotel, catering and tourism organized by VTC from January up to end of August 2006. These were full-time courses because it ran from 9:00 in the morning up until 5:00 in the evening.

62.   I have no hesitation to accept the Wife’s evidence that SY had received full time education up until August 2006. The fact SY has returned to Hong Kong does not mean that she has ceased full-time education. I do not intend to speculate why the Husband does not enjoy a good relationship with SY. The fact that he cannot recognize his daughter is self-evident of his poor relationship with her daughter. Suffice it to say that he simply does not have any knowledge of what SY is now doing. His allegation that SY has since her return from UK ceased full-time education is only guesswork and is unreliable.

63.   In any event, according to the 1st Order his maintenance to SY should cease after August 2006. As such he has overpaid the Wife a total of $30,000 (6 months at $5,000 from September 2006 to February 2007).

The Reasons For Defaulting Payment of $210,200

64.   The Husband explained that in or about 2000 he suffered loss in his investment in the stocks and properties. He was then heavily in debt to banks and finance companies. Initially he did not want to go bankrupt as it might affect his chance of promotion. That was why when he received reimbursement of the overseas education expenses, he applied the money to pay off part of his debt instead of pay the same to the Wife. His debt was so heavy that he was adjudged bankrupt in April 2002.

65.   At the hearing on 12th December 2002 when the 2nd Order was made, he was unrepresented. He said that originally he thought he could borrow money from relatives and friends to settle his outstanding maintenance, education allowance and legal costs to the Wife. That was why he gave an undertaking to pay the same by instalments. However, the Official Receiver later warned him that he being a bankrupt should never raise any loan during his bankruptcy. He said that he had every intention to pay but he simply has no means to satisfy this debt.

66.   He also alleged that when he realized he was not in a position to pay the Wife the outstanding sum, he had talked to the Wife who made an agreement with him that as long as he punctually paid his maintenance of $20,000 per month she would not chase after him for payment.

67.   This allegation was denied by the Wife. She said that she had over the phone chased after the Husband for payment but to no avail. The Husband even asked her for loans on those occasions. She therefore felt that pointless to chase further. However there was no waiver of her right for such sum.

68.   It is unnecessary for me to consider whether there is waiver of right to the debt because the Husband is still agreeable to repay, subject to deduction of any overpayment.  In any event I find the alleged agreement incredible. The Wife was then able to secure her monthly payment by an attachment of income order. She could receive her monthly payment through autopay without any difficulty. I fail to see why in the circumstances the Wife had to accede to such request to waiving or suspending her right in exchange for something which she has already secured to get.

69.   However, I am prepared to accept his explanation that he did not have proper legal advice when he gave the undertaking contained in the 2nd Order. On a balance, I accept his explanation that he did not appreciate that he, being a bankrupt, would be subject to stringent restrictions on borrowing and therefore gave such undertaking to repay by instalments in ignorance of the limitations to which he was then subject.

The Quantum

70.   I have considered all the circumstances of this case, including the considerations elaborated above, my conclusions are:

i)the Husband has financial capability to maintain the Wife, up to a maximum amount of $14,000 per month;
ii)the Wife requires a sum of $10,000 per month for her reasonable maintenance, being $14,000 reasonable requirement less her notional earning capacity expenses of $4,000;
iii)the Wife has a debt of $259,500;
iv)the Wife has got overpayment of SY’s maintenance of $30,000; and
v)the Husband has a substantial pension which will be available to the Husband in or about February 2013.

71.   The Husband only seeks to vary the monthly maintenance as from the date of the variation summons, i.e. 3rd August 2006 at which time the monthly maintenance to the Wife was $15,000. As such, there has been an over-payment of $5,000 per month from and inclusive of August 2006 up to and inclusive of February 2007, amounting to $35,000 ($5,000 x 7).

72.   On the other hand, by the interim maintenance order the Wife’s monthly maintenance has been temporarily reduced to $7,500 per month as from March 2007. Accordingly, the Husband has to top up the same by $2,500 per month up to this judgment, i.e. August 2007, amounting to $15,000 ($2,500 x 6).

73.   The debt due and owing by the Husband to the Wife as at today is reduced to $160,200 ($210,200 - $35,000 - $30,000 + $15,000).

74.   I therefore make the following order:

i)the maintenance order made on 8th April 2002 relating to the periodical payment for the Wife be suspended and substituted by a reduced sum of $10,000, payable by the Husband with effect from 1st August 2006 until further order;
ii)the amount of arrears of maintenance, education allowance and agreed costs referred to in the undertaking of the order dated 12th December 2002 be reduced to $160,200 after taking into consideration of the overpayment of periodical payment by the Husband to SY for the period from September 2006 to February 2007, that to the Wife from August 2006 to February 2007 and underpayment of periodical payment to the Wife from March 2007 to August 2007; and
iii)the net amount of the said arrears of $160,200 be repaid by the Husband to the Wife at the rate of $5,000 per month as from 1st September 2007 until full payment or further order.

75.   I notice that after the monthly payment of $10,000 to the Wife, the Husband is left with about $4,000 available for repayment of his debt to the Wife. In making the order in (iii) in the preceding paragraph, I have taken into account my inference that the second wife has financial resources to contribute to her new family. I do think in the circumstances, it is not unreasonable to infer that his second wife contributes $1,000 per month to the family given the fact that she could come up with $200,000 in the down payment of the Shenzhen Property.

76.   I understand in the course of the proceedings the parties have without prejudice correspondence on the matter. As the Wife’s committal summons has not been disposed of, I would therefore invite the parties to restore a hearing before me with 3 hours reserved with the first half an hour in chambers for argument on costs of this application and the remaining two and a half hour in court for the committal summons.

 

 

 WONG King-wah
(Deputy District Judge)

 

Mr. Wu of Tso & Associates, solicitors for the 1st Applicant (Husband)

Mr. Chan of Deca Lin & Partners, solicitors for the 2nd Applicant (Wife)


[1]Lewis v Lewis [1977]3 All ER 992
[2]Baker v Baker [1995]2FLR829
[3]W v W [2005]1HKFLR53
[4]Grainger v Grainger [1954] 1 WLR 1270
[5]Ballenden v Satterwaite [1948 1 ALLER 343
[6]Wakeford v Wakeford [1953] 2 All ER 827 and Howard v Howard [1945] P.1
[7]G v S (2001)4 HKCFAR419
[8]Thomson v Thomson [1991] 2 HKC119
[9]Rayden & Jackson on Divorce and Family Matters (18 ed.) para.18.25
[10]White v White [2000] 3 WLR 1571