YWS v SJ (Ancillary Relief: Variation of Maintenance) [2025] 2 HKLRD 921, [2025] HKFC 10 (Joyce Lee, Fiona Chong)

Joyce Lee represented the petitioner and Fiona Chong represented the respondent in YWS v SJ (Ancillary Relief: Variation of Maintenance) [2025] 2 HKLRD 921, [2025] HKFC 10.

The parties married in 1994. They had one child, a daughter (the Daughter) born in 1997. In 2005, the parties and the Daughter moved from Hong Kong to Singapore. The parties separated in 2007, and the wife (W) returned alone to Hong Kong. In 2008, she commenced divorce proceedings here. A decree nisi was pronounced that year. The decree was made absolute in 2009. By a consent order made in 2008, it was provided that: (i) the parties’ property in Hong Kong and 50% of the net proceeds of the sale of their property in Singapore be passed to W while the other 50% of those proceeds be held for the benefit of the Daughter until she turned 21; and (ii) the husband (H) after the making of a decree absolute pay W maintenance by way periodical payments of HK$27,000 per month during their joint lives unless and until W remarried. In 2011, H remarried in Singapore. He and his new wife (Madam C) had a son (the Son) now aged 11. W had not remarried. Pursuant to an application by H, an order was made in 2011 (the 2011 Order) by which the monthly periodical payments were reduced to HK$23,000. H was now aged 59; W was now aged 53; and the Daughter was now in her late twenties and in gainful employment. By a summons taken out on 12 April 2023, H applied for a discharge of the periodical payments or such reduction thereof as the Court decided, to take effect from October 2019. Before trial, each party made a proposal. H proposed that the periodical payments be reduced to HK$10,000 per month from July 2021 until he reached the anticipated retirement age of 63 in February 2028. A reduction as from May 2023 to HK$22,500 per month during the parties’ joint lives unless and until she remarried was what W proposed. Neither party accepting what the other party proposed, the matter proceeded to trial. H put forward the following as grounds for variation: (i) there was a material change in his financial position by reason of his unemployment from July 2021 to March 2022 and job changes between September 2019 and 2022 and the expenses of his current household; (ii) he was approaching retirement and still had a family of three to maintain, and he anticipated further responsibility for around 11 to 12 years in supporting the Son through university; and (iii) Madam C was financially dependent upon him. The Court was asked by H not to take into account Madam C’s 50% interest in two properties that she owned jointly with him.

Held, ordering (i) that the periodical payments under the 2011 Order remain unvaried until H reached retirement age in Singapore or ceased to be employed, whichever event occurred later and (ii) that from such time H make to W periodical payments of HK$10,000 per month during their joint lives unless and until she remarried, that:

(1) The court was empowered to vary or discharge a financial provision order. When exercising that power, the court would look at all the circumstances. There was power to backdate a variation. In practice, variations were not usually backdated to a date prior to the notice of the variation application unless the justice of the case so required. The court was not required to treat the order sought to be varied as a starting point, and would look at the matter afresh, albeit without ignoring or attaching no weight to such order, its basis and intended effect being relevant and worthy of proper weight (AEM v VFM [2008] 3 HKLRD 36, HCTT v TYYC [2008] 5 HKC 86, WNWG v PBF (CACV 130/2011, [2012] HKEC 429) applied). (See paras.20-26.)

(2) A party’s entry into a new relationship and financial responsibilities did not of itself mandate a downward variation of a financial provision order in respect of an earlier marriage, although this was not to say that the new relationship and financial responsibilities were to be ignored when such a variation was being decided upon (N v C (FCMC 7245/2004, [2006] HKEC 725), Vaughan v Vaughan [2010] 2 FLR 242, CMK v CPK [2023] HKFC 100 applied). (See paras.27-31.)

(3) No inference adverse to H would be drawn from his omission to call Madam C to testify since counsel for W did not cross-examine H on such omission and the question of such an inference was first raised in the written closing submissions for W. The reliability and weight of such evidence as H adduced on Madam C’s earning capacity and financial needs would be evaluated accordingly (Wisniewski v Central Manchester Health Authority [1998] PIQR P324, South China Securities Ltd v Lam Kwen Yuen [2012] 5 HKLRD 524, Tjang Siu Thu v Profield Construction Engineering Ltd [2015] 5 HKC 22, Jiang Zhong v Up Cheer Ltd [2017] 6 HKC 339, Cheung Kwong Yuen v Sun Hui Fang (DCCJ 743/2016, [2017] HKEC 1929), Wong Chak Wing v Camelo Investment Ltd [2021] HKCFI 3710 applied; CH v TTHM [2024] HKFC 17 considered; Prest v Petrodel Resources Ltd [2013] 2 AC 415 explained). (See paras.32-48.)

(4) On the evidence, H’s total income in Singapore currency was higher than the average in 2011 while his current total income in Hong Kong currency was about HK$6,400 less than the 2011 figure because of the exchange rate. This difference was small and unlikely to have any real impact on him since most of his expenses were in Singapore currency. (See paras.49-61.)

(5) All things considered and analysed, H’s reasonable financial needs came to HK$100,085.91 per month. (See paras.62-80.)

(6) On the evidence, W’s reasonable financial needs came to about HK$33,596 per month. (See paras.81-87.)

(7) At present, H, who had an income of HK$141,302.62 per month and reasonable financial needs coming to HK$100,085.91 per month, had the ability to pay W maintenance. Therefore, there should be no variation before he retired. (See paras.88-90.)

(8) All things considered, the periodical payments by H to W should be reduced to HK$10,000 per month once he ceased to be gainfully employed. (See paras.91-100.)

[The above is excerpted from the headnote to the report in HKLRD.]