Court of Appeal
Civil Appeal No 290 of 2011
Cheung, Yuen and Chu JJA
Family Law
14 November, 5 December 2012

Departure from principle of “equal division” — distinction between litigation misconduct and marital misconduct

A wife (“W”) petitioned in 2005 for divorce after 30 years of marriage, after which a decree nisi was granted in 2009. At the hearing for ancillary relief in 2011, the judge in the lower court departed from the principle of equal division of total assets by: (a) awarding an extra 10% to W for having been deprived of financial relief for more than six years caused by the husband’s (“H”) failure to make full and frank disclosure of assets, and his recurrent and deliberate delaying tactics; and (b) awarding a further 10% to W for her future medical expenses. W was found to be entitled to 70% of the assets totalling some HK$20 million. H appealed to seek equal apportionment. Both parties were 58 years old and W had been receiving treatment for severe heart disease and depression since 2004.

Held, allowing the appeal and adjusting the ratio from 70:30 to 60:40, that, inter alia:

Marital misconduct and litigation misconduct are different. Only the former justifies a departure from equal division of assets, save when the litigation misconduct was so extreme that it would be inequitable to disregard it. Litigation misconduct would usually be sanctioned by orders for costs.

Here, the lower court showed that H had already been ordered to pay costs as a result of his delaying the litigation and abuse of process – nothing suggested that any such litigation misconduct had resulted in a depreciation or loss of the matrimonial assets.

By contrast, there was nothing wrong in the judge’s departure from the principle of equality by reason of W’s special needs relating to future medical expenses arising from a physical or mental disability.



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