2. What factors will the Court consider in assessing the kind and the amount of maintenance (or alimony) to be made for a spouse?
In deciding who should pay alimony to whom, the Court is obliged to take into account the conduct of the parties and all the circumstances of the case. Those circumstances include the following, which are laid down in section 7 of the Matrimonial Proceedings and Property Ordinance (but they are not exhaustive):
a. The income, earning capacity, property, and other financial resources which each of the parties has or is likely to have in the foreseeable future
The Court will consider the overall financial position of each party both at the time of proceedings and in the 'foreseeable future', regardless of the sources or whereabouts of the assets or income. For instance, where one party has remarried or is about to remarry, the additional expense of running two households will be taken into account.
Full and frank disclosure of each party's assets must be made to the Court. Should it be discovered that it was not done so, adverse inference could be drawn against the party failing to make full and frank disclosure.
The Court will take into account how the various assets of each party have been derived in order to make a fair decision.
Although property acquired before marriage or by inheritance had in many jurisdictions been accorded a class of its own, in the ordinary course, this factor can be expected to carry little weight, if any, in a case where the claimant's financial needs cannot be met without recourse to this property.
Also, the Court will neither speculate nor base its decision on mere possibilities. The receipt of the asset or income must be reasonably certain and within the foreseeable future. This is particularly important when considering the relevance of potential inheritances (e.g. inheriting a family company or assets from a deceased or retired person).
b. The financial needs, obligations, and responsibilities which either of the parties has or is likely to have in the foreseeable future
Other than the financial resources now holding or to be received, the Court will also consider the outgoings, debts, and financial liabilities of each party. Parties should also give details of any financial obligations they have, including the expenditure on children and their school fees, regular allowance made to parents or other dependants.
c. The standard of living enjoyed by the family before the breakdown of the marriage
The lifestyle enjoyed by the parties during marriage will reflect on what their needs are. It is helpful to assess whether the financial claim is reasonable or not. For example, how to ensure that the standard of living of both parties will not be significantly declined after divorce?
However, in reality, it would be more expensive for a couple to live apart than to live together. It is therefore common that both parties will suffer a reduction in the standard of living upon marriage breakdown, unless the divorced couple is very well-off.
d. The age of each party and the duration of the marriage
These factors carry weight. Certainly, there will be vast difference in the award of maintenance between a short marriage where the wife is in her twenties; a short marriage where the wife is in her sixties; and a long marriage.
If the marriage is short, the husband's obligations to maintain the wife will be relatively lower. Also, a young woman is expected to secure a job to support herself easier than a middle-aged woman, particularly if the latter has been out of the job market for a long time.
It is pertinent to note that the period of cohabitation before the marriage does not count towards the length of the marriage. The rationale behind is: the legal rights and obligations of the parties do no come into existence until the wedding ceremony has taken place. Therefore a long period of cohabitation followed by a short marriage will not be treated in the same way as a long marriage, albeit the parties have been in cohabitation for a long time.
However, each case has to be decided in accordance with its facts. The Court would take into account of all the circumstances of the case, which may regard the long period of cohabitation as a material circumstantial factor.
e. Any physical or metal disability of either of the parties
If one of the parties suffers from any kind of disability, whether physical or mental, this would certainly affect his / her ability to gain independence or to fend for himself or herself, This factor is relevant in assessing the 'needs' of the claimant.
f. The contributions made by each of the parties to the welfare of the family, including any contribution made by looking after the home or caring for the family
The Court will look at the contributions, financial or otherwise, that each party has made.
It is common that during marriage, on the one hand, the husband work hard, whether through employment or operating his own business, to earn money for the household, while the wife's essential contribution was that of a caretaker of the home, a companion to her husband and as a mother. There is generally no bias in favour of the money earner and against the homemaker and child carer.
The Court recognizes the different, but complementary and equal, roles of husband and wife in the marriage partnership.
g. The value to either of the parties of any benefit which that party will lose as a result of the dissolution of the marriage
The Court will take into account any benefits that the parties will lose upon divorce. For instance, the loss of benefits under a former spouse's medical insurance and/or life insurance, the loss of married person's allowance, the loss of benefits used to receive from another party's family trust, etc.