Key Judgments

Leading Authority

In Hong Kong the leading case on the divison of matrimonial assets upon divorce is:

LKW v DD FACV 16/2008; (2010) 13 HKCFAR 537

This Court of Final Appeal judgment contains the basic principles that the courts in Hong Kong must follow in exercising their discretion under section 7 Matrimonial Proceedings and Property Ordinance. It adopted the English decision in White v White and the line of authority which has flowed from it since 2000. In other words it is now the starting point for all cases involving ancillary relief. See also WLK v TMC which was decided at the same time as LKW v DD (and the court said are intended to be read together) and can be seen as the first application of the adopted principles.

WLK v TMC FACV 21/2009 (2010) 13 HKCFAR 618; [2010] 6 HKC 571; [2010] HKEC 1728; (2010) 13 HKCFAR 658.

Family law; divorce; ancillary relief; financial provision for spouses; application of LKW v DD guidelines; big money case; good reasons existed for departing from equal division due to short and relatively unproductive marriage; in exercising s.7 discretion, pre-marital cohabitation which involved parties living together in circumstances which approximated to cohabitation as married couple could be taken into account; in absence of highly exceptional circumstances, “emotional interlocking”, without cohabitation, would not be taken into account; section 7 Matrimonial Proceedings and Property Ordinance (Cap. 192).

Relevant Authorities Prior to LKW v DD

The following cases are the leading judgments which preceded CFA decision LKW v DD and thereafter I have listed (and will continue to add to) those important decisions which have followed LKW v DD both in Hong Kong and England & Wales.

C v C  [1990] 2 HKLR 183 – old law on ‘reasonable requirements’ specifically overturned by LKW v DD

White v White [2001] 1 AC 596, [2000] 3 WLR 157, [2001] 1 All ER 1

Sorrell v Sorrell [2005] EWHC 1717 (Fam), [2006] 1 FLR 497, [2006] 1 FCR 75

Miller v Miller & McFarlane v McFarlane  [2006] UKHL 24; [2006] 2 AC 618; [2006] 2 WLR 1283; [2006] 3 All ER 1

For comment see P Moor and V Le Grice, “Periodical Payments Orders Following Miller & McFarlane – a Series of Unfortunate Events” (2006) 36 Family Law 655; J Eekelaar, “Property and Financial Settlement on Divorce – Sharing and Compensating” (2006) 36 Family Law 754; E Cooke, “Miller/McFarlane: Law in Search of Discrimination” (2007) 19 Child and Family Law Quarterly 98; I Ellman, “Financial Settlements on Divorce: Two Steps Forward, Two to Go” (2007) 123 Law Quarterly Review.

Charman v Charman  [2007] EWCA Civ 503, [2007] 1 FLR 1246, [2007] 2 FCR 217

McCartney v Mills McCartney [2008] EWHC 401 (Fam), [2008] 1 FLR 1508, [2008] 1 FCR 707

Post LKW v DD Judgments: Ancillary Relief

These cases are, in the main, highlight the new direction the Family Court in Hong Kong is taking following the CFA’s landmark ruling.

Z v X  CACV 166/2012, [2012] 5 HKLRD 791 – Judgment 13th November 2012, Cheung JA

LJE v ZM FCMC 14025/2008 [2011] HKEC 709

ARAV and VP, LJ aka PJ CACV 246/2010; [2011] HKLRD 759

Per Fok JA, On the facts of this case, I do not consider that an agreement to the effect relied upon by the wife should be implied.  The fact that the couple kept their financial arrangements separate in the manner found by the Judge does not, in my opinion, give rise to an inference that they agreed that their respective assets should be ring-fenced in the event of a divorce. in Miller/MacFarlane on which the wife’s case is based should be considered with care.  In the first place, the comments of Baroness Hale and Lord Mance relied upon are strictly obiter.  Secondly, Lord Nicholls disagreed that separate business and investment assets should be immune from the sharing principle (see §§17 to 20).  Thirdly, the comments of Baroness Hale were made in the context of a short marriage and the present case is not such a marriage: on the contrary, it is common ground that this was a long marriage. Fourthly, Ribeiro PJ in LKW v DD at §97 indicated a tentative preference for the approach of Lord Nicholls.100.  It is to be noted that a similar argument based on separate finances was rejected by this court in W v H and Z, unrep., CACV 127/2008, 12.5.09 at §§54 to 57.  In my view, courts should be cautious lest they too readily imply post-nuptial agreements which might have the effect, if upheld, of ousting the discretion of the court under section 7.

C (formerly known as C) v H HCMC 3/2011 – Poon J

Part IIA of the Matrimonial Proceedings and Properties Ordinance, Cap 192 (“MPPO”) came into force in March 2011.  It enables a spouse to apply for financial relief after the marriage had been dissolved or annulled in a foreign jurisdiction. Procedurally, the first step that the spouse must take is to obtain, ex parte, leave from the court for making the substantive application.  Here, the Wife took out the leave application in December 2011.  On 14 March 2012, I granted her leave after hearing her counsel.  As this is the first leave application ever brought, it provides the court with the opportune moment to lay down the proper approach in the infancy of the new enactment.  The Wife has already agreed that this Reasons for Decision should be published for the benefit of the profession and the public alike.

Proper conduct of preliminary issue in AR proceedings. Need for pleadings:  LWYA and KYW and LLP (4th December 2014) CACV 151/2013 and CACV 152/2013 see also TL v ML & Ors (ancillary relief: claim against assets of extended family) [2006] 1 FCR 465