Docstoc

RECENT DEVELOPMENTS AND CASES IN FAMILY LAW Bebe Chu

Document Sample
RECENT DEVELOPMENTS AND CASES IN FAMILY LAW Bebe Chu Powered By Docstoc
					       RECENT DEVELOPMENTS AND CASES IN
                  FAMILY LAW

                                Bebe Chu
                      Solicitor, Stevenson, Wong & Co



One of the problems that practitioners in Hong Kong often face is how
to advi.se divorce clients on their entitlement to financial relief. The
purpose of this lecture is to consider some recent cases regarding financial
relief and reallocation of property for spouses.

Financial provisions for spouses on divorce

The relevant provisions regarding the types of orders for financial
provision for a spouse are set out in sections 3,4 and 6 of the Matrimonial
Proceedings and Property Ordinance (Cap 192)('MPPO'). To summa-
rise, these are:
(i) interim maintenance or maintenance pending suit, for a term
       beginning not earlier than the date of presentation of petition until
       the date of the determination of the suit;
(ii) periodical payments, for a term beginning not earlier than the date
       of the making of the application and lasting not longer than the
      joint lives of the parties or a term ending with remarriage of the
       party in whose favour the order is made, whichever is the shorter;
(iii) secured periodical payments, for a term not earlier than the date of
       the making of the application and lasting not longer than the life
       or remarriage of the party in whose favour the order is made,
       whichever is the shorter;
(iv) lump sum or sums;
(v) transfer of property; and
(vi) variation of settlement.

'Clean break' approach
Where periodical payments are concerned, in Hong Kong, there is no
equivalent provision to s 25A of the Matrimonial Causes Act 1973 in
England (MCA) (substituted by section 3 of the Matrimonial and Family
Proceedings Act 1984 as from 12th October 1984), namely:
248                Law Lectures for Practitioners 1994

 (1) Where on or after the grant of a decree of divorce or nullity of
       marriage the court decides to exercise its powers ... in favour of a
       party to the marriage, it shall be the duty of the court to consider
       whether it would be appropriate so to exercise those powers that the
       financial obligations of each party towards the other will be termi-
       nated as soon after the grant of the decree as the court considers just
       and reasonable.
 (2) When the court decides in such a case to make a periodical
      payments or secured periodical payments order in favour of a party
       to the marriage, the court shall in particular consider whether it
      would be appropriate to require those payments to be made or
      secured only for such term as would in the opinion of the court be
      sufficient to enable the party in whose favour the order is made to
      adjust without undue hardship to the termination of his or her
      financial dependence on the other party.
(3) Where on or after the grant of a decree of divorce or nullity of
      marriage an application is made by a party to the marriage for a
      periodical payments or secured periodicals payments order in his or
      her favour, then, if the court considers that no continuing obliga-
      tion should be imposed on either party to make or secure periodical
      payments in favour of the other, the court may dismiss the applica-
      tion with a direction that the applicant shall not be entitled to make
      any further application in relation to that marriage ...
    Although the Hong Kong ordinance does not have the equivalent of
section 25 A of MCA, the recent approach by the Hong Kong courts is
to encourage a clean break, particularly in case of a short marriage where
there are no dependent children of the family.
    In the recent case of Thomson v Thomson Civ App No 82 of 1991, the
husband was ordered to pay in addition to a lump sum, periodical
payments for the wife in a fixed amount for a period of three years, after
which time the payments were to cease. The wife appealed against the
limitation of her periodical payments to three years. It'was held, inter
alia, that in Hong Kong a judge was entitled to terminate the claim of a
wife to periodical payments even though she was unwilling to give her
consent.
            Recent developments and cases in familylaw249

 Section 7(1) of the MPPO
 Section 7(1) of the MPPO sets out the matters to which the court is to
 have regard in deciding what orders to make under sections 4 and 6 for
financial provisions for a spouse in cases of judicial separation, nullity
 and divorce. These include the conduct of the parties and all the
 circumstances of the case including the following matters:
 (i) the income, earning capacity, property and other financial re-
       sources which each of the parties to the marriage has or is likely to
       have in the foreseeable future;
 (ii) the financial needs, obligations and responsibilities which each of
       the parties to the marriage has or is likely to have in the foreseeable
       future;
 (iii) the standard of living enjoyed by the family before the breakdown
       of the marriage;
 (iv) the age of each party to the marriage and the duration of the
       marriage;
(v) any physical or mental disability of either of the parties to the
       marriage;
(vi) the contributions made by each of the parties to the welfare of the
       family, including any contribution made by looking after the home
       or caring for the family; and
(vii) the value to either of the parties to the marriage of any benefit (for
example, a pension) which, by reason of the dissolution or annulment of
the marriage, that party will lose the chance of acquiring.
     Basically, the court will look at all the matters and then apply its
discretion to achieve what it considers to be the fairest outcome in all the
circumstances of each case. All assets, income and liabilities and ex-
penses of the parties will be taken into account, even if acquired long
before the marriage or just recently inherited. In the case of C v C [ 1990]
2 HKLR 183, at the end of the marriage the wife had benefited
substantially from her father's estate and yet such inheritance was taken
into account.

One-third starting point
Although the previous starting point of the 'one-third rule' is found to
be inappropriate in many cases by the courts in England or in Hong Kong,
particularly in cases involving large assets, the Court of Appeal in Hong
250                Law Lectures for Practitioners 1994

Kong in the case of Cheung v Cheung, Civ App No 140 of 1990 did adopt
the one-third rule as a starting point, this not being a case where the
parties were very rich or very poor, The brief facts of Cheung v Cheung are
set out hereinafter,
    Mr and Mrs Cheung were both 42 at the date of the order. The
duration of the marriage was about 15 years. There were two daughters.
Each party had custody of one daughter. The matrimonial home was held
by both parties in their joint names. The District Court ordered that the
matrimonial home be sold and the wife was awarded 55% of the net sale
proceeds. The 5% increase was to compensate the wife for the loss of her
benefit under a provident fund. The wife was further awarded $ 1,000 per
month as periodical payments for herself and $2,000 per month for
maintenance of the daughter in her custody. The wife appealed against
the order of periodical payments for herself. There was no cross-appeal
by the husband. The wife's effective earning capacity was determined to
be HK$1,000 per month. The husband's monthly income was $21,666.
One-third of the combined income of $22,666 would give approximately
$7,555, less the wife's earning capacity would give approximately $6,500
per month, The wife's periodical payments were increased to $5,600 per
month by the Court of Appeal after an adjusted reduction of $900 from
the $6,500. The Court of Appeal basically followed the 'one-third'
guideline.

Discretion — reasonable needs of a spouse under Duxbury calculations
In other recent cases, however, the court did not apply the one-third
starting point but assessed the reasonable needs of the spouse claiming
ancillary relief. The principles laid down in the English case of Duxbury
v Duxbury [1987] Fam 17 were usually followed in cases involving large
assets. In the case of a wife, this is a computerised calculation of what a
wife needs by way of capital to invest, to provide her with sufficient.
maintenance for life. Calculation will take into account the actuarial life
expectancy, tax rates, the rate of inflation and a realistic yield as to
income and capital growth,
   Duxbury calculations were adopted in the case of Louvet v Louvet
HCDJ No 5 of 1988. Louvet was a case where the husband was found not
to have made full and frank disclosure regarding his assets. The husband
was apparently in receipt of an income of US$180,000 per annum in
            Recent developments and cases in family law              251

respect of his main employment as a merchant banker in Indonesia. The
parties had no children. The judge concluded that the hushand was a
very wealthy man and that he was likely to be able to meet any order
which may reasonably be made for the wife's financial support. The wife
was then aged 46 and living in France. Duxbury calculations were
adopted and in order to provide an income for the wife of HK$35,000 per
month indexed to inflation at 6% over 36 years, a capital sum of
HK$5,399,?41 would be required. Taking into account a 'gift' tax of
HK$1,674,710 which would be payable under the French law, the High
Court ordered a lump sum of HK$7,024,451 to the wife in addition to
providing her with accommodation of a value of approximately
HK$3.9 million.
   In C v C [1990] 2 HKLR 183 the parties' assets including the wife's
inheritance were in the region of HK$90.338 million. $60.424 million
was controlled by the wife and $29.914 million by the husband. The wife
was ordered to transfer $30 million to the husband, leaving approxi-
mately HK$35.17 million for herself, with the husband ending up with
approximately HK$60 million. Although Duxbury calculations were not
actually produced, the Court of Appeal was of the opinion that taking
into account all the circumstances of the case, HK$35 million would be
sufficient to cover the wife's reasonable needs. Out of the HK$35
million, the matrimonial home, which was to be retained by the wife, was
then valued at about HK$4.175 million. The marriage had lasted
approximately 30 years. There were no dependent children.
   In the English case of Gojkovic v Gojkovic {1990] 1 FLR 140, the
parties' assets amounted to approximately £4 million. It was held that
where finances permit, the proposed standard of living of the spouses
should not be wholly out of proportion to each other. Taking into
account the wife's exceptional contribution to family's wealth, the wife
was awarded £1.295 million. In this case, the wife in fact received more
than what Duxbury calculations would have permitted her, in view of her
exceptional contribution,
   In the English case of Vicary v Vicary [1992] Fam Law 428, the
husband's capital assets were worth in excess of £1 million and he had an
annual gross income of £165,000. The wife's capital assets were worth
£57,000 and she had no other source of income. The husband was living
in the former matrimonial home worth £380,000 and wife living in
252                Law Lectures for Practitioners 1994

 modest accommodation worth £130,000. The parties entered into an
 agreement, approved by the court by way of consent order, wherein the
 wife agreed, inter alia, to accept £250,000 in full and final settlement.
 The wife subsequently discovered the husband had not disclosed his
 disposal of certain investments worth £2.8 million. The consent order
 was set aside and the judge awarded the wife a further lump sum of
 £450,000 on the grounds: (1) that the wife's contribution to the welfare
 of the family had been such as to entitle her to generous provision by her
 wealthy former husband, not limited to providing an income she could
justify by reference only to money spent on her own current mainte-
 nance, but enabling her, for example, to spend some money on. other
 matters such as helping her own adult married daughters with monetary
payments; and (2) that her income should be about £27,000 a year,
attracting the corresponding capital of £470,000 to produce that income.
That award would leave the wife with capital assets of about £637,000
including the house and subject to her present liability for costs of
£47,000, and it would leave the husband with net assets of £1.35 million.
He considered the asset division to represent an appropriate distribution
of the family resources. The husband's appeal to the Court of Appeal was
dismissed. The Court of Appeal considered that the Duxbury calcula-
tions were useful as guidelines in the negotiation process between the
parties, but emphasised the danger of such an approach achieving a status
far beyond that which it ever had in the case from which it obtained its
name. It should never be allowed to derogate in any way from the judicial
discretion to take into account all the circumstances of the case as
required by s 25.
    Turning to cases involving lower levels of assets, in the recent Hong
Kong case of Yue v Yue, Civ App No 19 of 1993, the Court of Appeal held
that there was no equivalent in Hong Kong to s 25 of the MCA (1973),
the provision that requires the Court so far as possible to put the parties
in the same financial position they would have been in if the marriage
had not broken down. This is a case where the husband aged 59 had
retired from a bank. He was a director of three companies, one of which
was dormant, one of which was a shelf company owning the flat in which
he lived, and one of which was running at a loss. The husband was paying
interest on mortgages on both flats, one occupied by the wife and the
children and the other one occupied by him. The husband was also
            Recent developments and cases in family law

paying rates on the wife's flat and HK$3,500 per month for the support
of the wife and children. The District Judge ordered the husband to pay
the wife $4,000 per month for herself and $3,000 for each child and to
transfer to the wife free from all encumbrances the flat she was residing
 in. The Court of Appeal held that the District judge adopted the wrong
test in finding that he should endeavour to put the wife in the same
financial position she would have been if the marriage had not broken
down. This was not the law in Hong Kong and the court should only have
referred to s 7(1) of MPPO. The Court of Appeal ordered the husband
to continue to pay the mortgage interest and rates on the wife's flat until
the daughter reached the age of 21 or completed her full time education
and to pay the wife $2,500 per month for her support until the flat was
transferred to her. The husband was also ordered to pay $2,500 per month
for the maintenance of each child,
     In Yue v Yue, there was no reference to the 'one-third rule,' although
in terms of the amount of family assets this case would be in the category
of Cheung v Cheung, the 1990 case referred to above.
     In the English case of H v H [1993] 2 FLR 335, the parties' marriage
lasted 12 years. The husband was a doctor, and came from a wealthy
family from whom he received considerable financial benefits. The wife
had a degree in accounting, and had qualified as a teacher and nurse, but
had not worked during the marriage. She received some capital from her
father-in-law during the marriage. The couple had three children aged
 10,8, and 5. In the ancillary relief proceedings, the judge made an order
which had the effect of giving the wife 61% of the family capital, with
39% to the husband. It also ordered that the husband should pay the
children's school fees, and periodical payments of £2,280 per annum to
each child and £5,700 per annum to the wife. The judge took account
of the husband's prospects of a substantial inheritance, his pension
rights, and the fact that both as to income and capital the wife's prospects
were not as good as the husband's, The husband appealed.
    Mr Justice Thorpe allowed the appeal and held that the judge should
not have taken account of any possible inheritance, since the husband's
mother was in good health and, besides, she had the discretion to leave
her assets elsewhere. In relation to the pension rights, it was more
important to look at the value of what was earned during the couple's
cohabitation than at the prospective value after separation. Any capita!
                   Law Lectures for Practitioners 1994

 re-adjustment must have evidential justification, and was nowadays
 principally directed to obtaining a clean break. The periodical payments
 for the children were increased to £3,200 per annum to take greater
 account of the real costs to the wife of their maintenance, a nominal
 periodical payments order was considered sufficient for the wife's needs
 in the light of her capital and earning capacity, and there would be no
 capital order made. His Lordship commented that the Duxbury approach
 has become common place, suggesting that if the wife were seeking
 substantial settlement, then a Duxbury calculation should be produced,
     In the case of L v L [1993] Fam Law 471, the husband, aged 69, and
 the wife, aged 60, married in 1952, The husband worked until his
 retirement, in the clothing trade, and the wife had had some earnings as
 an actress. By the 1960s, they had an affluent lifestyle: the husband had
 a Rolls-Royce, their son went to public school, and they had a holiday
 home in Majorca, The husband had taken complete charge of all the
 family's financial affairs, but from the mid 1970s, the family experienced
 a downward spiral towards financial crisis, which (the wife alleged) was
 attributable to the husband's speculative and improvident nature which
 expressed itself either in business losses or gambling losses. The husband
 transferred the family home to the wife, and the wife successfully took
control of the family finances. There was, at the time of the hearing, a
series of assets (including a house in Israel and a maisonette in north
London). It was agreed that a clean break order would be appropriate: the
husband sought the cash equivalent of half of the assets or the (lesser)
lump sum of £250,000; the wife proposed a lump sum of £150,000.
    It was held that although husbands and wives were to be treated
equally, there is no general presumption that assets should be equally
divided after a long marriage where the children are no longer dependent
and where the parties are in a late stage of life. The fact that the wife had
been the sole owner of the home, and that a substantial part of the family
property came to her by inheritance from her parents was not to be
disregarded. Moreover, the husband's financial dealings must be re-
flected in the judgment as relevant conduct, as well as his addiction to
gambling. The wife's prudent management was also relevant both as
conduct and as a contribution. However, the most important and single
factor was the needs of the parties, and the 'conduct' consideration could
properly be reflected by an award which would meet the husband's needs
             Recent__developments and cases in family law            255

— assessed at some £18,000 per annum — without allowing any
significant cushion element. The appropriate order would be for a lump
sum of £170,000 for the husband, which would allow for the husband's
transitional relocation expenses.1

Matrimonial home

There have been some recent cases on occupation rights, and on the
court's power to order the sale of the matrimonial home.

Whether the court has the power to order sale
The Court of Appeal held in the case of Cheung v Cheung that the Hong
Kong courts had no jurisdiction under the MPPO to order the sale of a
party's property, although the question in the case of Cheung v Cheung
was academic as both parties wanted the home sold.
    However, this case should be contrasted with the more recent case of
Choy v Choy, Civ App No 47 of 1993. The matrimonial home was in the
parties' joint names. The District Judge ordered the husband to transfer
the property to the wife and a legal charge of 25% be placed on the
property for the husband, not to be enforced until the younger child
reached 18 years or when the wife remarried or when the home was sold
by the wife. The husband appealed. The Court of Appeal held that this
was not an. appropriate case for the making of a Mesher Order2 and taking
into account section 7 of MPPO, the Court of Appeal ordered inter alia
that the matrimonial home be sold and the proceeds be divided two
thirds to the wife and one-third to the husband. The attention of the
Court of Appeal was not drawn to the previous case of Cheung v Cheung
and the Court of Appeal failed to consider the issue as to whether there
is in fact power under MPPO to order a sale.

Occupation
So far as the rights of occupation of matrimonial homes is concerned,
recently in Hong Kong there was the interesting case of Baring v Baring,
Civ App No 124 of 1992, In this case the parties were discussing


  See Appendix tor a summary of the cases referred to above.
  From Mesher v Mesher and Hall [1980] 1 All ER 126.
256               Law Lectures for Practitioners 1994

 separation whilst living together but leading separate lives. The lease of
 the matrimonial home where the parties were residing was terminated.
 The husband signed a new lease of different premises and decided to
 move into the new home without the wife. By an ex parte application,
 the wife sought an order allowing her to enter and the Court of Appeal
 allowed the wife's appeal and held that a wife's right to reside in the
 matrimonial home would not be defeated by the husband simply
 terminating the lease on the premises in which the parties were residing
 and moving to another flat.
    Then there is the case of Hamlett v Hamlett, Civ App No 100 of 1993.
 Here the husband moved out of the matrimonial home in January 1992.
The home was held by a limited company in which the wife owned 40%
and the husband owed 60%. Both parties had made contribution to its
purchase and refurbishment and the husband was discharging the mort-
gage payments. In February 1993, the wife invited her boyfriend to move
in to cohabit with her by which time she had given birth to a child
fathered by the boyfriend. The husband was granted an order by the
District Court, restraining the wife from permitting any person who was
not a party to the proceedings other than the child and a maid to occupy
the former matrimonial home for more than ten days in any given six
months. The wife appealed. The Court of Appeal allowed the wife's
appeal and held that 'proprietary rights' did not include any right vested
in the husband of possession of the home and as the wife had sole
possession by arrangement of the parties by the husband moving out, the
husband had no right of possession which could be protected by the kind
of interlocutory order made by the District Judge.
    Also on the occupation of the matrimonial home, it had been the
practice in the case of divorce between two parties who were tenants of
a housing estate flat for the District Court to make a recommendation to
the Housing Authority.
    Recently in the case of Chan Wei Yin v Cheong Shun Chiu, Civ App
No 67 of 1993, the Court of Appeal held that there was no statutory
power to justify the District judge's recommendation to the Housing
Authority. The District judge was most probably aware that there was no
statutory power to make such a recommendation and that was why it was
explicitly expressed as a recommendation. This practice of giving a
recommendation, albeit ultra vires, was found to be very helpful by the
  _                 2                  5                 7

Housing Authority. Perhaps the legislators could consider certain amend-
ments to the Housing Ordinance to deal with the situation where a
husband and wife have separated or divorced.

Disclosure/discovery
 Among the matters to which the court has to have regard are the parties'
 assets, their respective incomes, earning capacity, property and other
financial resources (section ?(l)(a) of MPPO). As practitioners, we are
 not in a position to advise clients as to their entitlement until we know
these financial details,
     A petitioner or respondent spouse who has applied for ancillary relief
 in his/her petition or answer and who intends to proceed with that
application shall have to file a notice in Form 8 or 9 as set out in the
Matrimonial Causes Rules (see section 73 (1) of the Matrimonial Causes
Rules Cap 179) (MCR).
    Under section 73(2) of the MCR, upon receipt of a relevant notice
in Form 8 or 9 in respect of an application for ancillary relief, unless the
parties have agreed upon the terms of the proposed order, the party upon
whom the notice is sent shall within 14 days after service file an affidavit
of means in answer to the application containing full particulars of his/
her property and income.
    Upon receipt of an affidavit of means, any party to an application for
ancillary relief may by letter require any other party to give further
information concerning any matter contained in any affidavit filed by or
on behalf of the other party or any other relevant matter, or to furnish a
list of relevant documents or to allow inspection of any such documents
and in default of compliance may apply to the court for directions (see
section 77(4) of the MCR). This type of request often takes the form
either of a questionnaire containing a list of questions for the relevant
party to answer, or what is similar to a request for further and better
particulars such as in other civil actions.
    In cases where there are large family assets, the question of to what
extent further information or particulars are required has been examined
in a number of recent cases. It is however helpful to go back a little earlier
to trace the development since 1981, In the earlier Hong Kong case of
H v H [1981] HKLR 376, the husband deposed to net realisable assets in
excess of US$100 million and a commensurate income. The wife
                   Law Lectures for Practitioners 1994

 requested a further affidavit from the husband containing full particulars
 of his property and income. The husband clearly had. sufficient assets to
 satisfy the wife's claims but the court ordered that he must file a further
 affidavit under rule 73(2) and that the court must have sufficient
 information in. order to satisfy its duty under section 7 of MPPO.
     In the subsequent English case of Thyssen-Bornemisza v Thyssen-
 Bomemisza (No 2) [1985] FLR 1069 the husband's accountant assessed
 the net assets of the Baron Thyssen-Bornemisza to be around £400 mil-
 lion with income of at least £10 million per annum. The husband
 deposed that he could meet any order that the court could make. The
husband had provided an affidavit giving certain particulars. The wife
 sought further information, asking for the exact details of the husband's
 international capital and income. The court decided that no further
discovery was required.
     Subsequent to that, there was another English case, Attar v Attar
 (No 1) [1985] FLR 649 where there were assets in excess of £2 million.
The husband swore an affidavit and indicated he would meet any order
the court might reasonably make. The parties' marriage was short, lasting
only six months. There were no children of the marriage. There was no
evidence that any of the £2 million was tied up or in any way encum-
bered. The wife's application for further information on the husband's
assets was turned down.
     In the Hong Kong case of E v E (unreported) HKDJ 1057 of 1988, it
was held inter alia that where a business provides the family with its
means of support, and is not going to be sold, a detailed, enquiry into its
capital worth is irrelevant and an unwarranted expense. Per curiam:'
applications for discovery of facts and documents beyond the legitimate
requirements of the particular case may result in delay and are too often
to the detriment of the wife and tend to be costly.'
    'The cases cited above involved very large assets, particularly the H v
H and Thyssen-Bornemisza cases, but even in cases such as B v B [1990]
2 FLR 180 where the parties' assets were around £10 million, it was also
held, on the husband's concession, that since he could satisfy any
reasonable order which the court might make, it was not necessary to
make further disclosures. The court was of the view that it was quite
unnecessary and a wasted exercise for the wife to incur the substantial
costs and time in carrying out the detailed enquiries which the wife was
seeking through the proposed direction.
      i     Recent developments_and_cases in family law                259

    In the English case of Evans v Evans [1990] 1 FLR 319 certain
guidelines were set out which included the following:
(i) Inquiries made under r 77 of the Matrimonial Causes Rules 1977
      should as far as possible be contained in one comprehensive
      questionnaire and should not be made piecemeal at different times.
(ii) While it is necessary for the legal advisers to have sufficient
      knowledge of the financial situation of both parties the necessity to
      make further enquiries must be balanced by what they are realisti-
      cally likely to achieve and the increased costs,
    In the recent case of Tao v Tao, Civ App Nos 37 and 38 of 1993, the
husband deposed to net assets of at least HK$104 million in total, and
that he had no liquidity problems and could adequately meet any order
for the wife's and children's reasonable requirements. The wife sought
further particulars by letter. The District judge declined to order the
further and better particulars and the wife appealed. The Court of Appeal
ordered the husband to provide further particulars on the basis that the
information provided by the husband failed to provide the minimum
degree of disclosure required under an order made pursuant to rule 73(2)
of MPPO.
    In a subsequent case, Law v Law, Civ App No 130 of 1993, the
husband deposed to assets in excess of HK$100 million. The wife
requested further particulars under Rule 73(2) of MCR. The District
Court ordered that such particulars had to be provided by the husband,
following the case of Tao v Tao. On the husband's appeal, the case of Tao
v Tao was distinguished and the appeal was allowed.
    The Court of Appeal in Law v Law sought to distinguish H v H on the
basis that the latter was not concerned with whether an order for
particulars under the second limb of r 73 (2) should be made. In H v H the
judge had already exercised his discretion and ordered that an affidavit
be filed and most significantly, there was no appeal against the order. The
appeal was against a subsequent order for particulars of the affidavit
provided in response to the former order. Tao v Tao was similarly
distinguished,
    It now appears that two conclusions may be drawn from these cases:
(i) In the earlier cases of H v H and Thyssen-Bornemisza, the husbands
       were extremely wealthy, in excess of US$100 million in 1981 and
       £400 million in 1985 respectively (approximately HK$780 million
       and HK$4,000 million).
260               Law Lectures for Practitioners 1994

(ii) Recent cases appear to indicate that for cases with assets in excess
      of HK$100 million, wealthy husbands/wives would not be required
      to file detailed affidavits of means provided that upon receipt of a
      Form 8/9 notice, he/she should immediately file an affidavit
      (without any court order to do so) containing the following
      information:
      (i) that he/she is in possession of assets over HK$ 100 million, and
      a commensurate income; and
      (ii) that he/she has no liquidity problems and can meet any Orders
      the Court could make in favour of the other party.
    As no details need to be provided, there could be no way to verify the
contents of such a simple form of 'affidavit of means'. One may query
whether this is indeed the intention of Rule 73(2) of the MCR since the
rule specifically refers to an affidavit containing full particulars.
    The wife in Law v Law is presently seeking leave to appeal to the Privy
Council and at the time of this paper, the result of her application is
unknown.
Recent developments and cases in family law   161
262   Law Lectures for Practitioners 1994
Recent developments and cases in family law   263

				
DOCUMENT INFO
Shared By:
Categories:
Tags:
Stats:
views:15
posted:10/11/2011
language:English
pages:17