7. To avoid the maintenance order, my husband deliberately quit his job and applied for Comprehensive Social Security Assistance (CSSA) upon receipt of the divorce petition. When considering his earning capacity and income, would that kind of trick work?
The court will not only look at the husband’s earning capacity and income at that present moment. As stated in section 7(1) of the Matrimonial Proceedings and Property Ordinance, the court will also take into account the husband’s earning capacity and income in the foreseeable future. If the husband is still capable of finding a job and working to support himself, the court will consider this in deciding how to split the matrimonial assets and when making a maintenance order. Therefore, if the husband is making an obvious attempt to avoid providing maintenance, this trick may not work.
There is no automatic exemption for CSSA recipients to pay maintenance. In all cases for ancillary relief, the courts will have regard to the principles laid down in section 7 of the Matrimonial Proceedings and Property Ordinance (Cap. 192) and LKW v DD. That said, the assets, liabilities, income and expenses of each party remain an important concern in making the relevant order. Further note that under section 7(1)(g), in making an ancillary order, the court will have regard to 'the value to either of the parties to the marriage of any benefit which, by reason of the dissolution or annulment of the marriage, that party will lose the chance of acquiring'. Thus whether a CSSA recipient will be ordered to pay maintenance depends on the relative wealth of the parties and if CSSA is given on a household basis, whether the parties would lose such social benefits.
The amount of CSSA received is calculated at 'Recognized Needs' minus 'Assessable Income'. 'Assessable Income' includes maintenance. Thus, it is advisable for CSSA recipients to disclose their maintenance to SWD as the maintenance amount will be regarded as an evaluation condition for receiving CSSA.