In previous articles, I have introduced the law on the division of matrimonial assets and provision of maintenance in matrimonial cause proceedings. In this article, I would discuss Maintenance Pending Suit applications.
What is Maintenance Pending Suit (“MPS”)
Under Hong Kong’s legal system, divorce litigation which involves children, maintenance and financial disputes usually requires at least a year or more to for the court’s decision to be final. Under the Hong Kong law, if the wife or children could not support themselves financially fully, they can apply to Court for Maintenance Pending Suit during the divorce proceedings and before Decree Absolute is pronounced, requiring the husband to pay the maintenance “pending suit” monthly.
The provisional maintenance under the Order of MPS covers till the date of final judgment. Once the Order has been made, the respondent (usually husband) should comply with the Order during the litigation to pay maintenance. After the Court has made a final decision on the property adjustment and maintenance, the final decision should replace the MPS Order.
Legal Principle : Reasonableness and its determination standard
Under section 3 of Matrimonial Proceedings and Property Ordinance, the Court has discretion and may order either party to the marriage to make to the other such periodical payments for his or her maintenance as the Court thinks reasonable. The court would take into consideration all relevant facts related to the case to make such order.
In HJFG v. KCY, [2012] 1 HKLRD 95, Hartmann JA explained the relevant legal principles as follows: –
- “The sole criterion to be applied in determining the application is ‘reasonableness’, which is synonymous with ‘fairness’.
- A very important factor in determining fairness is the marital standard of living. This is not to say that the exercise is merely to replicate that standard.”
In TL v ML and Others [2006] 1 FLR 1263, Nicholas Mstyn , QC, Deputy High Court Judge revisited such legal principle and derived that: –
- “In every maintenance pending suit application, there should be specific maintenance pending suit budget which excludes capital or long-term expenditure more aptly to be considered on a final hearing. That budget should be examined critically in every case to exclude forensic exaggeration.
- – Where the affidavit or Form E disclosure by the payer is obviously deficient the court should not hesitate to make robust assumptions about his ability to pay. The court is not confined to the mere say-so of the payer as to the extent of his income or resources. In such a situation the court should err in favour of the payee.”
When the Court hears the MPS application, it will not consider all the evidence, it will not usually examine the witnesses in terms of their evidence (including both parties’ affidavits) nor conduct a detailed investigation on both parties’ financial status. Therefore, the Court should adopt a broad-brush approach to determine the reasonableness of the MPS and can analyze the issue with necessary presumptions.
Wife and Children’s Financial Need
After the determination of the genuine financial need of wife and children, the Court would consider the wife’s income and assets. The Court would only order the husband to pay the wife interim maintenance when the wife’s current income and assets are insufficient to support her living and personal needs. This does not apply to maintenance to children as children usually have no income and assets, hence, not bound by this restriction.
Husband’s Ability to Pay
The Court would also consider the husband’s ability to pay, mainly his net income, that is, the husband’s income (for instance, average monthly income) less general living and personal expenses, and husband’s saving and assets.
If the husband’s ability to pay is greater than the financial needs of the wife and children during the pending litigation, the court will order the husband to pay the full amount required by the wife and children. Conversely, if the husband’s ability to pay is less than the financial needs of his wife and children during the pending litigation, the court may exercise discretion and reduce the amount required to be paid by the husband during the divorce proceedings.
For issues related to divorce proceedings and maintenance, please contact our divorce team lawyers for more information.