Introduction

In view of the increasing divorce rate in Hong Kong, more applications for maintenance order have been filed. Nowadays, as more young adults are receiving or keen to receive university education in Hong Kong, it is foreseeable that more parties may seek a maintenance order for an adult child on the basis that the child is still studying.

In LHC v KHS [2016] HKEC 1282, the Family Court had to determine whether to grant an interim maintenance relief in benefitting the living expenses of a 23 year-old adult “child”.

Background

The Petitioner (P), a housewife and the Respondent (R), a retiree, had two adult children, a son (26 years old) and a daughter (YY) (23 years old).  Both children received education in the UK.  At the time when P filed a divorce petition on the grounds of two years separation and R’s unreasonable behaviour, YY was studying her master degree in London.  In P’s petition, she applied for, inter alia, payments for the benefit of YY (in the sum of $22,050) under section 5 of the Matrimonial Proceedings and Property Ordinance Cap.192 (“MPPO”).

P’s Case

It was P’s case that in September 2015 YY was stressful in her study and at the same time her leg was injured, which made it more difficult for her to cope with her life in London.  Her situation was further exacerbated by her parents’ divorce proceedings by which YY was emotionally disturbed.  As such, YY decided to “suspend” her study in October and returned to Hong Kong for treatment in December 2015.  Although since October 2014 the court has ordered R to pay interim maintenance pending suit in the sum of HK$18,500 to P to support her living, such sum was only enough for her sole use and unable to maintain YY.

R’s Case

On the other hand, R pleaded his case that he despite he always cared about his daughter, both financially and emotionally, he had doubts over (1) whether the interruption of YY’s education was actually caused by the parties’ divorce, and (2) whether YY was actually mentally unwell as claimed.  In any event, R had lost trust on YY and was not prepared to support her.  Further, R claimed he as a retiree did not have enough financial resources to support YY’s daily expenses.  He was of the view that YY should be capable of maintaining herself as she was an adult with a university degree.

The Law

Under section 5 of MPPO, the court has the power to order maintenance for child of the family in cases of divorce.

Under section 10(3) of MPPO, the court has the power to make ancillary relief orders in favour of a child over 18 years old, if it appears to the court that: (1) the child is receiving education or undergoing training; or (2) there are special circumstances (for example disability, physical or mental handicap) which would affect the child’s earning ability.

Decision

When considering P’s case, the court looked into the following issues:

• whether YY satisfied the requirement under section 10(3);
• the reasonable needs of YY; and
• the ability of R to pay.

Firstly, although the court accepted the medical findings which proved YY had been suffering from depression, there was no indication in such report saying YY’s ability of self-care or earning capacity would be affected by her mental problem.  Further, those amounts P claimed on YY’s behalf were to be used on YY’s entertainment and holidays.  As such, the court found the “special circumstances” ground did not apply to YY.

Secondly, as P was claiming for YY’s expense in HK, the court found that the amount claimed by P on YY’s behalf was overly excessive: the alleged medical expense was overstated and the pleaded living expenses were based on YY’s living standard in UK, not HK.  As P and R agreed to sell one of their properties, it would enable P to maintain YY when she receives half of the sale proceeds.

Thirdly, although R claimed he lacked the financial ability to maintain YY, the court found the opposite view as R had assets of around HK$18 million.  Also, with the half of the sale proceeds of one of the properties, such funds should enable R to finance YY’s daily expenses.

On side issue, as YY’s medical condition did not prevent her from working, and with the facts that YY had already completed her university education, the court was of the view that YY should be independent or at least try to be so for her own good.

After considering the above issues, the court held no interim maintenance was granted and P’s application was dismissed with costs to R.

 Conclusion

Children’s welfare has always been the first and paramount consideration in divorce proceedings.  However, when an adult child wants to benefit from his/her parent’s ancillary relief, the court will take into account of whether the adult child needs such relief for education purpose, or unable to attain financial independence due to medical or developmental problems.

For enquiries, please contact our Litigation & Dispute Resolution Department:

E: family@onc.hk                                                                

W: www.onc.hk                                                                   

T: (852) 2810 1212

F: (852) 2804 6311

19th Floor, Three Exchange Square, 8 Connaught Place, Central, Hong Kong

Important: The law and procedure on this subject are very specialised and complicated. This article is just a very general outline for reference and cannot be relied upon as legal advice in any individual case. If any advice or assistance is needed, please contact our solicitors.