Family, Matrimonial and Cohabitation
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Family, Matrimonial and Cohabitation



I. General description of the legal consequences of divorce

Once a marriage relationship is dissolved in a legal sense (i.e. a divorce decree/order has been granted by the Court), each party will no longer be a spouse and both parties are free to remarry.

Certain rights that are available to each party as a spouse will be either lost or affected upon divorce, for example:

  • certain benefits under a former spouse’s life insurance will be lost;
  • social security benefits may be lost or changed;
  • taxation status will be changed (e.g. married person’s allowance);
  • medical insurance provided by a former spouse’s employer will be lost; and
  • divorce will cause any testamentary gift (e.g. gift in the will) to a former spouse or benefits under a family trust to lapse.

Both parties lose rights that were given to them under certain matrimonial legislations, in particular their “matrimonial home rights”. However, as far as children are concerned, each parent (unless otherwise ordered by the Court) retains parental responsibility on divorce and there is an obligation on both the father and the mother to provide their children with financial support.

Orders for financial provision, or property adjustment orders (if any), made by the Court in accordance with the law in favour of either of the parties to the marriage will take effect upon divorce. Orders for settlement (e.g. transfer or take over of any property), or variation of settlement, in respect of any child of the family will also take effect upon divorce. All other orders for children take effect as soon as they are made.

Nullity

The Court of First Instance and the District Court have jurisdiction to declare a marriage null under the Matrimonial Causes Ordinance if:

    (1) either parties to the marriage was domiciled in or had a substantial connection with Hong Kong at the date of the petition; or
    (2) either parties to the marriage was habitually resident in Hong Kong throughout the period of three years immediately preceding the date of petition; or
    (3) both parties to the marriage were residents in Hong Kong at the date of the petition; or
    (4) the respondent in the proceedings was resident in Hong Kong at the date of the petition; or
    (5) the marriage was celebrated in Hong Kong.

A void marriage is regarded by law as never having taken place.

On the other hand, a voidable marriage is valid and subsisting until declared void by a decree of nullity.

There are several circumstances under which a marriage can be declared null and void by the Court, depending on whether the marriage took place after 30 June 1972 or before 1 July 1972, such as:

A. Grounds upon which marriage after 30 June 1972 will be null and void

    (1) That it is not a valid marriage under the Marriage Ordinance, that is to say at the time of the marriage:

      a. the parties to the marriage are within the prohibited degrees of kindred and affinity (e.g. marriage between brother and sister); or
      b. either party is under the age of 16; or
      c. the parties have intermarried (marriage between blood relatives) in disregard of certain requirements as to the formation of marriage

    (2) That the marriage is otherwise invalid by the law of Hong Kong

    (3) That at the time of the marriage either party was already lawfully married

    (4) That the parties are not respectively male and female

B. Grounds upon which marriage after 30 June 1972 will be voidable

    (1) That the marriage has not been consummated due to the incapacity or refusal of one party to do so (Ground 1)
    (2) Either party to the marriage did not validly consent to it due to reasons such as duress, mistake, unsoundness of mind (Ground 2)
    (3) Either party was suffering from mental disorder at the time of the marriage (Ground 3)
    (4) Either party was suffering from communicable venereal disease (Ground 4)
    (5) The respondent was pregnant by some person other than the petitioner at the time of the marriage (Ground 5)

However, the court shall not, in proceedings instituted after 30 June 1972, grant a decree of nullity on the ground that a marriage is voidable (whether the marriage took place before or after 1 July 1972) if the respondent satisfies the court:-

    (a) that the petitioner, with knowledge that it was open to him to have the marriage avoided, so conducted himself in relation to the respondent as to lead the respondent reasonably to believe that he would not seek to do so; and
    (b) that it would be unjust to the respondent to grant the decree.

Such provision replaces, in relation to any decree to which it applies, any rule of law whereby a decree may be refused by reason of approbation, ratification or lack of sincerity on the part of the petitioner or on similar grounds.

Without prejudice to the above, the court shall not grant a decree of nullity on the grounds mentioned in the said Grounds 2, 3, 4 & 5 unless the court is satisfied that the proceedings were instituted within 3 years from the date of the marriage.

Without prejudice to the above, the court shall not grant a decree of nullity on the Grounds 4 & 5 unless the court is satisfied that the petitioner was at the time of the marriage ignorant of the facts alleged.

C. Void or voidable marriage celebrated before 1 July 1972

Marriage which took place before 1 July 1972, will be void on any of the following grounds:-

    (1) That the parties to the marriage are within the prohibited degrees of consanguinity or affinity (meaning descended from the same ancestor)
    (2) That the former husband or wife of either party to the marriage was living at the time of the marriage and the marriage with such former husband or wife was then in force
    (3) That the consent of either party to the marriage was obtained by force or fraud
    (4) That the marriage is invalid by the law of Hong Kong

Such marriage will be voidable by the law of Hong Kong on any of the following grounds:-

    (1) That the marriage has not been consummated due to refusal of either party to do so
    (2) That at the time of the marriage either party to the marriage:

      a. was of unsound mind; or
      b. was a mentally disordered person to the extent as to be unfitted for marriage and the procreation of children; or
      c. was subject to recurrent attacks of insanity or epilepsy

    (3) That the respondent was at the time of the marriage suffering from communicable venereal disease
    (4) That the respondent was at the time of the marriage pregnant by some person other than the petitioner
    (5) At the time of the marriage either party to the marriage was impotent or incapable of consummating the marriage

If the marriage is declared null (invalid), each party will be free to remarry in the same way as if a divorce had been granted. The Court has the same power to make orders relating to money and children as it does in divorce and judicial separation proceedings.

A decree of nullity granted after 30 June 1972 on the ground that a marriage is voidable shall operate to annul the marriage only as respects any time after the decree has been made absolute, and the marriage shall, notwithstanding the decree, be treated as if it had existed up to that time.



II. Resolution methods other than divorce

Divorce is a traumatic process to go through and has far-reaching impact. It may not be your best solution in the end. Even if both parties have decided to live apart, you may want to settle the problems in an amicable way. There are other options which you can consider.

1. Apart from going to Court to apply for a divorce, are there any other channels through which unhappy spouses can settle their differences? What are the differences between these other channels and divorce proceedings?

You may consider making use of the following alternatives:-

(i) Deed of Separation – It refers to a separation agreement that can be made between the two parties by themselves. The agreement can specify a period of separation, and what the parties will do with their children (if any) and how their children’s and each other’s maintenance will be provided. It is recommended that a lawyer be consulted before such an agreement is made.

A deed of separation is appropriate where the parties are in a harmonious relationship and there is a good chance that each party will agree to be bound by the terms.

But the downsides of this option are:

  • If any party has breached the term(s) of the Deed, the other party can only sue the breaching party for breach of contract. The enforcement of it is different from the enforcement of a court order made in divorce or judicial separation proceedings.
  • Legal Aid is not available for negotiating a deed of separation.
  • In situations where proceedings for divorce or judicial separation are issued subsequently, the existence of a deed of separation does not prevent the Court from making a different order even though the deed embodies terms to the effect that the parties intended it to be final: because the law provides that any term in a deed that restricts the right of any party to apply to the Court in future proceedings shall be void. But in future proceedings the Court will usually be inclined to uphold the terms of the deed (assuming it was made voluntarily and each party had the opportunity to seek independent legal advice) unless there is very good reason to do otherwise.

(ii) Separation Order – Under some circumstances, and if no agreement can be reached, one party can apply to the District Court for a separation order together with maintenance orders (e.g. Either party may be ordered by the Court to give financial support to the other party, and/or the children, for the costs of living.) provided that he or she has not committed adultery. In the case of a wife, she may apply where the husband has been convicted of having assaulted her, or has deserted her, or is guilty of persistent cruelty to her, or her infant children, or has knowingly transmitted venereal disease to her, or has compelled her to be a prostitute, or is a habitual drunkard or drug addict. In the case of a husband, he may apply where the wife has been guilty of persistent cruelty to his children or is a habitual drunkard or drug addict.

If the Court finds that there are sufficient grounds, it may order that the parties be separated, i.e. they need not live together any more although they are still legally husband and wife (they are not free to re-marry at this stage). The Court may also make orders relating to the custody of the children and the maintenance of the other spouse and of the children.

(iii) Judicial Separation – A spouse or couple may apply to the District Court for a judicial separation, which is a legal process through which parties obtain formal recognition of their separation. The minimum 1 year rule of marriage does not apply to judicial separation. However, to get a judicial separation, the applicant has to prove basically the same facts as they would in a divorce.[see Part III on Divorce] The effect of a judicial separation is the same as a separation order, i.e. the parties are still husband and wife but they need not cohabit. Parties who are judicially separated are not free to re-marry. The Decree is only granted subject to the requirement that satisfactory arrangements have been made for the welfare of any children.

There are several possible reasons why a couple would apply for judicial separation instead of divorce, for example:

  • when one or both parties are opposed to divorce on either religious or moral grounds;
  • one party does not wish to give the other the ability to remarry;
  • when the parties have been married for less than 1 year and are therefore unable to apply for divorce;
  • in order to prevent the loss of benefits available only to a spouse.

The existence of a judicial separation decree does not preclude either party from applying for divorce subsequently.

(iv) Mediation – Family mediation is an alternative way to settle family dispute other than going to Court. It has been increasingly used by separating or divorcing couples to settle issues arising from marriage breakdown.

What is "family mediation"?

In practical terms, family mediation is a problem-solving process designed to help separating/divorcing couples reach their own mutually acceptable agreements regarding on-going arrangements for their children and/or the resolution of financial matters.

It is a voluntary process in which a trained, impartial third person (the mediator) can assist both parties to communicate and negotiate issues in a confidential setting.

In a family mediation session, the mediator will help you to:

  • discuss and decide which areas are in dispute;
  • explore each party's needs and interests;
  • expand options and select the most suitable solution;
  • draw up your agreement in detail setting out how you have agreed to solve each problem.

Mediators? Who are they?

Mediators come from various professional backgrounds. They usually have qualifications in law, psychology, social work or social science. They are specially trained and have to meet accreditation requirements covering knowledge and skills in negotiation and dispute resolution. They are also required to abide by a Code of Practice.

Mediators are neutral. They

  • do not take sides with either party;
  • do not make decisions for parties;
  • do not provide legal advice. Parties will be encouraged to consult their own lawyers for legal advice.
  • do not offer counselling or therapy but may suggest such services;
  • suggest new avenues to explore;
  • help parties assess their own case realistically, assess the feasibility of the decisions; and
  • help parties to explore settlement proposals in depth and find the solutions.

2. What are the advantages of Family Mediation?

  • Family Mediation provides a mean of reducing the cost, expense, uncertainty, trauma and delay of litigation. You may save some time and money in not having to contest matters in court.
  • It also helps to improve communication between you and your partner and reduces the tension, bitterness and conflict that you may encounter in an adversarial litigation system.
  • Mediation can also help both parties be better prepared to deal with future disputes e.g. continuing parental responsibilities.
  • You make your own decisions and reach agreements which you and your former partner are more willing and ready to comply with.
  • Family Mediation can improve your ability to communicate with your former partner.
  • Family Mediation can enhance your continuing relationship as parents and help you work better together as parents in the long-run.

Does Family Mediation take a long time?

It depends very much on the complexity and dimensions of the issues the parties need to settle. The degree of mutual cooperation and readiness to participate in the family mediation sessions also count. If issues are less complicated and the process goes smoothly, it may only take 2 or 3 mediation sessions, each lasting for about 2 hours, for the parties to reach agreement.

Do I need to pay for the Family Mediation Service?

You will have to pay if you retain the service of a private mediator. Some non-governmental agencies charge a fee according to a sliding scale based on the user’s income, but a few agencies provide the service for free.

Any other concerns about Family Mediation?

  • Family Mediation may not be suitable for everyone. You will first have to attend an intake interview in which the mediator will assess whether family mediation is suitable for your particular circumstances.
  • Family Mediation may not be appropriate for all disputes, e.g. in cases of child abuse, domestic violence, etc. as fear may prevent one party from negotiating freely.
  • Legal advice can be sought by either party at any stage of the family mediation.
  • Both parties have the right to terminate the family mediation at any time.
  • Both parties must appreciate that what the other party says in a family mediation session cannot be used in any legal proceedings.

Agreements drafted in the family mediation session are not legally binding. You may, after seeking a lawyer’s advice on it, apply to the court to have your agreement made into a court order which will make the agreement legally binding.

Confidentiality

Family Mediators are required by their Code of Practice to observe confidentiality in respect of all matters disclosed in the family mediation session. When parties agree to enter family mediation, they will also be required by the mediator to sign an agreement that all negotiations are to be privileged and conducted on an unprejudiced basis.

3. Are there any formal organizations or voluntary agencies providing family mediation services to couples before or after divorce?

a) You may seek more information regarding Family Mediation Services from the Judiciary at:

  • the Mediation Co-ordinator’s Office (Address: Room 111-116, Wanchai Tower, 12 Harbour Road, Hong Kong; Telephone: 2180 8063 or 2180 8065; Fax: 2180 8052) located within the Family Court building;
  • or
  • the Family Court Registry (Address: M2, Wanchai Law Courts, Wanchai Tower, 12 Harbour Road, Hong Kong; Telephone: 2840 1218; Fax: 2523 9170; E-mail: familycourt@judiciary.gov.hk)

b) You may consult your own lawyer or social worker, etc.

c) You may also contact the following organizations:

Caritas – Hong Kong

Caritas Family Service
1/F., Caritas House,
2 Caine Road, Central, Hong Kong
Tel. 2669 2316, 2843 4670
Fax. 2676 2273

Hong Kong Catholic Marriage Advisory Council

Marriage Mediation & Counselling Service
Room 101-109, M2 Level, Tsui Cheung House,
Tsui Ping (North) Estate, Kwun Tong, Kowloon
Tel: 2782 7560
Fax: 2385 3858

Hong Kong Christian Service

2/F., 33 Granville Road,
Tsimshatsui, Kowloon
Tel: 2731 6227 / 2731 6316
Fax: 2724 3520 / 2731 6333

Hong Kong Council of Social Service

12/F, Duke of Windsor Social Service Building,
15 Hennessy Road, Wanchai, Hong Kong
Tel: 2864 2958

Hong Kong Family Law Association

c/o G.P.O. Box 11417, Hong Kong
Tel: Nil
Fax: 2845 9168
Website: http://www.hkfla.org.hk

Hong Kong Family Welfare Society

Hong Kong Family Welfare Society Mediation Centre
Western Garden, 80A, First Street,
Sai Ying Pun, Hong Kong
Tel: 2561 9229; 2832 9700
Fax: 2811 0806
Email Address: mediationcentre@hkfws.org.hk
Website: http://www.mediationcentrehk.org

Hong Kong International Arbitration Centre

38/F, Two Exchange Square,
8 Connaught Place, Hong Kong
Tel: 2525 2381
Fax: 2524 2171
E-mail: adr@hkiac.org
Website: http://www.hkiac.org

Hong Kong Sheng Kung Hui Welfare Council

5/F., Holy Trinity Bradbury Centre,
139 Ma Tau Chung Road, Kowloon
Tel: 2713 9174
Fax: 2711 3082

Kornhill Alliance Church Family Service Centre

Rm 1006-1010, Kornhill Metro Tower,
1 Kornhill Road, Quarry Bay, Hong Kong
Tel: 2516 5113
Fax: 2516 5505

Resource The Counselling Centre

Suite 501, Ruttonjee House,
11 Duddell Street, Central, Hong Kong
Tel: 2523 8979
Fax: 2845 7352

Shatin Alliance Community Services Centre

G/F, Block E & F, Yue Tin Court,
Shatin, N.T.
Tel: 2648 9281
Fax: 2635 4795

St. James’ Settlement

4/F., 85 Stone Nullah Lane,
Wanchai, Hong Kong
Tel: 2835 4342
Fax: 2833 9940

Yang Memorial Methodist Social Service

Family Service Division
G/F, Central Commercial Tower,
736 Nathan Road, Mongkok, Kowloon
Tel: 2171 4001
Fax: 2388 3062

The Hong Kong Federation of Women

Free legal advice hotline: 2893 3303

The Hong Kong Federation of Women’s Centre

Hotline: 2386 6256

Free Legal Advice Scheme

(Application can be made to any District Office, Home Affairs Department, Tel: 2835 2500)

The Scheme has nine Legal Advice Centres each of which is in a district office. The nine district offices in which the Legal Advice Centers are operating are:

  • Central and Western District Office (Tel: 2852 4377)
  • Eastern District Office (Tel: 2896 6968)
  • Island District Office (Tel: 2852 4324)
  • Kwun Tong District Office (Tel: 2342 3431)
  • Shatin District Office (Tel: 2158 5352)
  • Tsuen Wan District Office (Tel: 3515 5805)
  • Wan Chai District Office (Tel: 2835 1996 / 2835 1997)
  • Wong Tai Sin District Office (Tel: 3143 1168)
  • Yau Tsim Mong District Office (Tel: 2399 2111)

Website: http://www.dutylawyer.org.hk/en/free/legal.asp



Divorce

A. Pre-conditions for divorce

If you want to petition for a divorce on your own account, basically you have to fill in a petition form and take it personally to the Family Court Registry, M2, Wanchai Law Courts, Wanchai Tower, 12 Harbour Road, Hong Kong.

If you and your spouse have agreed to apply jointly to the Court, you should fill in a joint application form together, and submit it as above.

Will I need a lawyer?

Probably yes. Submitting a petition or joint application for divorce puts legal proceedings in motion, so you will find it very helpful and safe to seek legal advice before any submission to the Court is made.

You will particularly need a lawyer in the following circumstances:

  • your spouse does not agree to a divorce;
  • neither of you can agree on the arrangements to be made for the children or on financial matters.

Each year, the Law Society of Hong Kong publishes a Directory of Hong Kong Law Firms which includes a list of firms handling matrimonial cases. This directory can be found and consulted in the Public Enquiry Service Centres of District Offices, public libraries, and at the office of the Law Society of Hong Kong.

1. What can I do if I cannot afford to retain a lawyer to represent me in divorce or matrimonial proceedings?

Application for free or subsidised legal assistance

In seeking legal advice, you may approach the Free Legal Advice Scheme administered by the Duty Lawyer Service (Tel. 2835 2500).

In seeking legal representation in court, you may try to apply to the Legal Aid Scheme administered by the Legal Aid Department (Tel: 2537 7677), or to the Bar Free Legal Service Scheme administered by the Hong Kong Bar Association (E-mail: bflss@hkba.org).

Please also note that while the staff of the Family Court Registry will give information relating to divorce procedures, they are not lawyers and they are not permitted to offer legal advice.

2. Can I get a divorce in Hong Kong? What conditions do I need to comply with?

You should note the following items (a) to (c) before presenting a divorce petition to the Court.

a. Place of marriage

The place of marriage is not of main concern. Provided that your marriage was validly constituted in the country where the marriage was celebrated, and the validity of your marriage can be proved, then subject to the following factors, you can apply for divorce in the Court of Hong Kong.

b. Conditions to comply with

One of the following conditions must be satisfied before an application or petition for divorce can be dealt with by a Hong Kong Court:

  1. either of the parties to the marriage was domiciled in Hong Kong on the date of the petition or application;
  2. either of the parties to the marriage was habitually resident in Hong Kong throughout a period of 3 years immediately preceding the date of the petition or application; or
  3. either of the parties to the marriage had a “substantial connection” with Hong Kong on the date of the petition or application.

It is pertinent to note that whether a “substantial connection” exists will depend on all the circumstances of each case, including but not limited to, the length of time the parties have lived in Hong Kong prior to their application for divorce, how long they intend to stay in Hong Kong, whether the parties have employment in Hong Kong, and whether they have acquired assets or taken a lease of property in the territory.

c. Length of marriage - the “one year rule”

In general, subject to the following exceptions, no petition for divorce could be presented to a Hong Kong Court before the expiration of the period of 1 year from the date of the marriage ( section 12 of the Matrimonial Causes Ordinance , Cap. 179 ).

There are 2 possible exceptions to this “one year rule”:

  • exceptional hardship being suffered by the petitioner (“petitioner” being the applicant or the party presenting the petition for divorce); or
  • exceptional depravity on the part of the respondent (“respondent” being the applicant's spouse / petitioner's spouse).

However, in determining the application for divorce before the expiration of the period of 1 year from the date of the marriage, the Court shall have regard to the interests of any child of the family within the meaning of section 2 of the Matrimonial Proceedings and Property Ordinance, Cap. 192 (which can also include a child who is not the natural child of one of the parties to the marriage) and to the question whether there is reasonable probability of a reconciliation between the parties during the remaining period before one year has expired.

3. Shall I choose to apply for divorce in Hong Kong?

a. Alternative option

Given the fact that Hong Kong is an international financial centre, it is common in Hong Kong for either or both parties to a marriage to have a close connection with another country, this is particularly so among the expatriates.

It is important to consider from a pragmatic perspective whether or not Hong Kong is the best place to initiate the divorce proceedings. The following factors are of relevance:

  • How each country under consideration deals with divorce, the custody of children, and the financial matters - there may be vast significant differences, particularly over financial matters.
  • For instance, in the US and Canada, they have ‘community property’ laws, so that “marital property” (i.e. property acquired during the marriage) is divided equally on divorce.
  • One cannot obtain a divorce in Australia or New Zealand until you have been separated for a year. New Zealand courts approach the division of capital assets in a similar way as in the States and Canada and do not place as much emphasis on maintenance rights as the courts in Hong Kong do.
  • Also, although the systems of divorce in Hong Kong and in England and Wales are very similar, they are not identical.
  • It is important to have regard to the ease of enforcement of any court orders obtained against his or her spouse. For example, if your spouse refused to pay alimony, what action can be done against his or her assets? (It is usually convenient and most beneficial to charge or freeze against his or her assets when the court orders are made in the country in which the non-complying spouse lives and/or the main family assets are situated).
  • It is usually more convenient to initiate the divorce proceedings in the country in which you reside because of the easier access to your lawyers and attendance in court if necessary.

If either or both parties to the marriage have substantial or close connections with one or more alternative countries or if your spouse is intending to institute proceedings in one country when it occurred to you that the legal system of another country might be available and of greater benefit to you, then you should seek legal advice from a matrimonial lawyer in each country before starting any divorce proceedings in order to make an informed decision. This has to be done without delay, failing which time (which is closely related with costs) would be wasted.

If both parties commence divorce proceedings in different countries, it is likely that it would give rise to a costly dispute over which country is the most appropriate place or forum for dealing with the divorce. The parties may even compete to obtain the first divorce decree, since the forum or the country in which the first decree is made will then be empowered to deal with the important ancillary matters of children and finance.

b. Recognition of Hong Kong divorce decrees

For the sake of saving unnecessary costs, before you start the divorce proceedings, it is vital to check for the recognition of the divorce decree that you intend to obtain, that is, whether it would be recognized by the Hong Kong Court, or whether the Hong Kong divorce decree is recognized by other countries.

Although the divorce decree granted by Hong Kong Court is recognized in many countries, it is not recognized in all places. In this regard, you should consult your lawyers.

4. Other than the marriages registered under the Marriage Ordinance in Hong Kong, what other types of marriages are recognized by Hong Kong law? Can a couple whose marriage is registered in a foreign country, or a couple married through traditional Chinese customs, or a non-registered couple apply for divorce in Hong Kong?

Registered Marriage

Since 7th October,1971, a couple in Hong Kong can only validly marry in accordance with the Marriage Ordinance (Cap. 181 of The Laws of Hong Kong). This generally means that it must be a voluntary union for life of one man with one woman to the exclusion of all others and that the marriage ceremony must be carried out at one of the Marriage Registries or licensed places of worship. This is called a registered marriage.

Foreign Marriage

A foreign marriage celebrated outside Hong Kong in accordance with the law in force at the time and in the place where the marriage was performed is generally recognized as a valid marriage similar to a marriage registered in Hong Kong.

Chinese Customary Marriage and Modern Marriage

However, apart from registered marriages and foreign marriages, the law also recognizes as valid 2 other types of marriage if they were contracted in Hong Kong before 7th October, 1971.

- Chinese Customary Marriage

The first type is Chinese customary marriage. It is a marriage celebrated in accordance with the traditional Chinese customs that were accepted at the time of the marriage, either in the part of Hong Kong where the marriage took place, or in the parties' family place of origin, usually their native place in China.

- Modern Marriage

The other type is called a modern marriage, which is one where an unmarried man and a woman neither of which was less than 16 years of age went through an open ceremony in the presence of at least two witnesses in such a manner that a reasonable person would think that a marriage has been celebrated. 

For this type of marriage, the kind of marriage ceremony performed did not have to be in accordance with formal Chinese law and custom, it would be valid and subsisting as long as a reasonable man thinks a marriage had taken place.

It is important to note that the ceremony had to be ‘open’ in the sense that it was so held that it was known and could be seen by all those who were not particularly invited to participate. This requirement would be satisfied by, for example, leaving the door of the room in which the ceremony took place open. This type of marriage is also called validated marriage.

Parties to these 2 latter types of marriage (Chinese customary marriage and modern marriage) can have them post-registered at the Marriage Registry. If one party refuses to post-register it, the other may apply to the District Court for a declaration that such a marriage exists and thereafter can post-register it unilaterally.

Parties to a registered marriage or a foreign marriage seeking a divorce must go through the Family Court of Hong Kong.

To obtain a divorce in a Chinese customary marriage situation, the party or parties must first of all have the marriage post-registered or declared valid by the District Court. If the parties agree to divorce, they must go before a designated public officer who will explain the consequences to them and ask them to sign an agreement. If only one party wants a divorce, he or she can apply to the court in the usual way , but only after the registration or declaration of the marriage as stated above.

In the case of a modern marriage, if both parties agree, they can divorce by going before a designated public officer and by signing a written document. The written document sets out unequivocally the final and complete dissolution of the marriage and must be signed in the presence of 2 witnesses.

Either party to these 2 types of marriages can, upon divorce, apply for maintenance (financial support) if the need arises.

5. Will a concubine and the relevant children be legally recognized? Can they be parties in divorce proceedings?

Since 7th October, 1971, no man can lawfully take a concubine in Hong Kong. But in the case of a Chinese customary marriage, concubines taken before that date will be recognised and their children will be considered legitimate.

B. Procedures and grounds for divorce

Divorce and matrimonial proceedings are generally heard in the Family Court section of the District Court before a District Court judge and proceedings for divorce must be instituted either by a petition for divorce or by an application for divorce.

If it becomes clear that a case raises a difficult point of law or involves assets of considerable value then either party can apply to transfer the case to the High Court. A High Court judge is more experienced and therefore better qualified to deal with complicated cases.

Certain matters must be commenced in the High Court, such as application for wardship (i.e. The custody of the child is given to the Court. More details of wardship are discussed in the ensuing Q&A ).

1. What are the grounds for divorce? Must I explain why I want a divorce?

In law, there is in fact only one ground for presenting a petition for divorce, namely, that the marriage has broken down irretrievably.

Under section 11A of the Matrimonial Causes Ordinance(Cap. 179 of the Laws of Hong Kong) , except in the case of a Joint Application for divorce, the Court shall not hold the marriage to have broken down irretrievably unless the applicant for divorce (i.e. the petitioner) satisfies the Court of one or more of the following facts:

  • that your spouse has committed adultery and you find it intolerable to live with your spouse;
  • that your spouse has behaved in such a way that you cannot be reasonably expected to live with your spouse; Usually it is a series of misconducts or intolerable behaviour. However, a single incident of grave misconduct is enough;
  • that you and your spouse have lived apart for a continuous period of at least 1 year before filing the petition and that your spouse consent to a divorce;
  • that you and your spouse have lived apart for a continuous period of at least 2 years immediately before filing the petition for divorce (in such a case your spouse's consent to a divorce is not required);
  • that your spouse has deserted you for a continuous period of at least 1 year immediately before filing the petition for divorce.

In the case of a Joint Application for divorce, both parties must prove either or both of the following two conditions to the Court (section 11B of the Matrimonial Causes Ordinance):

  • that the parties to the marriage have lived apart for a continuous period of at least 1 year immediately preceding the making of the application; OR
  • that not less than 1 year prior to the making of the application a written notice (Form 2E) signed by both parties of their intention to apply to the court to dissolve their marriage was given to the Court and that the notice was not subsequently withdrawn.

If there are children of the family who are under the age of 18, you must include in your petition your proposal as to their custody and access. If you wish to apply for ancillary relief such as maintenance, transfer of property, division of matrimonial assets, etc., you should also pray so in your petition.

Note: According to section 11C of the Matrimonial Causes Ordinance, a husband and wife shall be treated as "living apart" unless they are living with each other in the same household.

2. How do I apply for divorce? (with a brief summary of the relevant procedures)

You are advised to consult a lawyer before submitting the relevant documents and attending hearings in the Family Court.

You need to go through the following stages:-

(Stage 1) Presenting a petition for divorce

(Stage 2) Serving (delivering) my petition to my spouse

(Stage 3) Fixing a court hearing date

(Stage 4) Decree Nisi – a tentative court order for divorce

(Stage 5) Final order for divorce

(Stage 1) Presenting a petition for divorce

To start divorce proceedings, you need to fill in:

Form 2 Petition (the form that you need to fill in depends on your particular circumstances or grounds for divorce)
Form 2B Statement as to the arrangements for children (if applicable)
Form 2E Financial Statement for financial dispute (if applicable)
Form 3 Notice of Proceedings
Form 4 Acknowledgement of Service (case number and name of parties only, other items to be completed by the respondent)

In the case of a Joint Application (which means you and your spouse have agreed to apply together for a divorce), you need to fill in:

Form 2C Joint application
Form 2D Statement as to the arrangements for children (if applicable)

All forms you need are available from the Family Court Registry and may be completed in English or Chinese. When you have filled them in, take them to the Family Court Registry for filing, together with your original marriage certificate or a certified true copy. The filing fee is $630. You will be given a case number, which must be marked on any subsequently filed documents.

(Stage 2) Serving (delivering) my petition to my spouse

Now that you have started legal proceedings, you are known as the "petitioner" and your spouse is known as the "respondent". After filing your petition, you must arrange for a sealed copy ( “sealed” meaning a copy with the court’s chop on it) of the petition to be served on every other party to the proceedings, either by hand or by post. Note that you must not serve the petition on the respondent yourself. Instead you must use the services of a third person, or send the petition by post. If the petition fails to reach the respondent by hand or by post, the petition can be advertised in newspapers (with the approval of the Court) as a substitute way to notify the respondent.

In the case a Joint Application, there is no need to arrange for a sealed copy to be served on the other party.

(Stage 3) Fixing a court hearing date

After your petition has been served on the respondent you should next apply to the Registrar for directions to set down the case for trial (i.e. to fix a date for a court hearing), using an application form obtainable from the Family Court Registry. Your petition or application will be set down for hearing in one of the following lists on payment of the stated fee:

Where a petition is concerned, before the case can be set down, the Registrar must be satisfied that the petition has been served on the respondent. This can be proved either by showing that the respondent has completed and returned a Form 4 (Acknowledgment of Service) to the Registrar, or by having the person who served the documents on the respondent file an affirmation confirming that the petition has been delivered to the respondent. Joint Applications will be set down provided that the relevant documents are in order.

The Registrar will make directions on the date, place and time of the trial and will notify you and the other parties.

(Stage 4) Decree Nisi – a tentative court order for divorce

Special Procedure List

If you have petitioned for divorce but the respondent does not file an answer in response to your petition, the petition will be set down in the Special Procedure List. Joint Applications also come under the Special Procedure List.

After the Registrar has given directions for trial, he will consider the evidence you have filed. If he is satisfied that you have proved the contents of the petition or application, he will make and file a certificate to that effect. Both parties will receive a copy, endorsed with the terms they have agreed. There is no need for either party to attend the hearing. The Court will grant a decree nisi (a tentative court order) dissolving the marriage.

Defended List

Where a petition for divorce is made and the respondent has filed an answer, the petition will be set down in the Defended List. In such cases, the Court will either grant a decree nisi dissolving the marriage, or will dismiss the petition if insufficient evidence is found. In the case of a petition listed on the Defended List, either or both of the parties may need to attend the court hearing.

In the event of court granting the decree of divorce, if the question of child custody and access arises, or if there are applications for ancillary relief by either party, the court will adjourn these matters to Chambers with directions for social investigations report and filing of affidavit of means by the parties where appropriate.

(Stage 5) Final order for divorce

6 weeks after the Court has granted a decree nisi, you can apply for your decree to be made absolute (a final order for divorce) by sending a completed "Notice of Application for Decree Nisi to be made Absolute" to the Court, using Form 5 (for a petition) or Form 5A (for a joint application).

If there are children of the marriage, the decree nisi will not be made absolute until the Court declares that it is satisfied with the arrangements made for them. The Registrar will issue a Certificate of Decree Absolute to each party if the registrar is satisfied that the statutory requirements have been complied with.

(For more details of the above procedures, you may also visit the website of the Judiciary of Hong Kong on “How to apply for a divorce”.)

3. When will the divorce proceedings be completed? How long will it take before I can marry again?

The time for the completion of a divorce application will vary from case to case. It is subject to the Court’s caseloads, the length of the hearing and the fact that if there are children of the marriage, the decree nisi will not be made absolute until the Court declares that it is satisfied with the arrangements for them.

The Judiciary has the following performance pledge (for reference only):

 

Waiting Time

i) Dissolution of marriage - from setting down for trial to actual hearing

 

- Special Procedure List

50 days

- Defended List (1-day hearing)

110 days

ii) Financial applications - from filing of summons to hearing (1-day hearing)

110-140 days

Wherever possible, the Judiciary will reply at once to correspondence from members of the public. In any case, it will issue an interim reply within 10 days and a full response within 30 days of receiving such correspondence.

C. Matters affecting children

In general, child custody refers to a court order for care and control over the child / children. The parent who is given custody after divorce shall be responsible for the daily care of the child and for making routine everyday decisions about his or her welfare. Joint custody may also be given.

In order to give a child maximum stability, in practice, it is usually in the interests of a child for the child to live in one parent's home and to visit the other parent on a regular basis ("visiting access").

However, such visits can, and often do, extend to a number of days or even weeks during school holidays.

In reality, where the circumstances warrant, it is possible for a child to spend half of his or her time in one parent's household and half in another parent's home. Parents are encouraged to reach amicable agreement , whenever possible, to avoid making costly application to Court.

If both parents want a joint custody, where both parents together make all the important decisions regarding their child's upbringing, the Court would grant a joint custody if it can be assured that the arrangement will work.

Joint custody is now generally encouraged as it is considered good for parents to realize that they both have a responsibility towards their child and their parental duties do not cease on the breakdown of the marriage. Obviously, no matter what kind of custody is granted, a high level of agreement and cooperation between the parties is encouraged and required.

1. What factors will be considered by the Court in awarding custody of a child to either or both parties?

In all matters relating to children in family proceedings, the welfare of the child is the first and paramount consideration for the Court. While each case will depend on its own facts , the Court would take into account all relevant factors which include:

  • the preservation of the status quo;
  • the ages of the parents and child;
  • the personality, capability and character of the parents;
  • the financial resources of the parents;
  • the physical and mental health of the parents and child;
  • the accommodation available to the child;
  • the child's own wishes and views, if any;
  • the benefit of keeping the siblings together with one parent;
  • the religion and culture of the family;
  • professional reports such as medical, school, or court welfare officer's reports (e.g. about the child's family relationship, living conditions, mental or health elements, etc.).

Note that the aforesaid factors are just factors commonly considered by the Court, they are not exhaustive.

Upon hearing all the relevant evidence, the Court, bearing in mind that the interests and welfare of the child is of prime importance, would balance the factors against each other, depending on the circumstances of each case.

Some important factors are further elaborated below:

Status quo

Many professionals especially child psychologists opined that it is in the best interests of a child, to avoid a disruption of the familiar life of a child.

If a child has already settled well with one of the parents and is used to and happy with his/her surroundings and lifestyle, the Court is unlikely to consider taking the child away from that parent unless there are other compelling reasons.

Main carer

Naturally, a child will develop a strong bonding with his or her main caregiver. The child may be dealt with a blow, whether emotionally or otherwise, if he or she is separated from his or her close main carer or guardian suddenly. The damage done should not be under-estimated.

It is therefore considered desirable for a child to stay with the parent who has hitherto been his or her main caregiver, so as to maintain the status quo.

Child's wishes

While it is an important factor, it should be noted that children's views are not overriding. The overriding factor is still the welfare and the interests of the child.

Child's view will generally be heard and considered by the Court, but the weight to be given to such views would depend on the age and the level of understanding of the child concerned. The wishes of older children will play a material part in deciding with whom their custody will be granted.

Any views and wishes of the children must be ascertained with great care. This is usually done by an appointed court welfare officer.

One should avoid creating an impression that they are being asked to make a choice between their beloved mother and father. This would pose a heavy emotional burden on the child.

Though it is rather common, it is wrong for either parent to attempt to exert influence on a child regarding his / her view. Children's wishes are usually best expressed through a court welfare officer.

Keeping siblings together

To avoid any emotional trauma, it is regarded as desirable that siblings, in particular those who are nearer in age, should be kept together rather than being split between their parents. It is only in rare circumstances which, if it is considered best to do so, that split orders would be made by the Court. Even so, every effort should be made by the parties to ensure that the siblings can see each other regularly. Again, the damage caused by the separation of siblings when they are young should not be under-estimated.

Age of the parties and the child

The age of the parents and the child are also a material factor to be considered. The Court is more likely to award custody of babies and young children to the mother. If one parent is particularly old, it is likely that the Court will take this as a factor that would reduce his or her ability to care for the minor or child.

Sex of the child

This is usually not a very important factor. However, this might have a bearing on the Court's consideration when all other factors are equal. For instance, statistics show that a girl about to go through puberty might fare better with her mother and a boy of the same age might fare better with his father.

Capability of the parents to fulfil the needs of the child

As said, each case depends on its own facts. The same applies to the growth and upbringing of a child, whose needs and ability varied from child to child.

Thus, a child's needs will be considered and balanced against the health, capability and resources of each parent. The misbehaviour of a party, e.g. adultery does not necessarily affect or reduce his or her ability as a parent. After all, the prime consideration for the court is the welfare of the child.

2. My wife wants to apply for divorce and she plans to take our only daughter out of Hong Kong during the waiting period. Can I stop her?

Wardship

If that is the case, you may consider instituting wardship proceedings in the High Court. Wardship proceedings can be instituted at any time when there are special concerns about a child's welfare such as when it is suspected that a child would be, or has been, removed from Hong Kong.

Once wardship proceedings have been instituted, the Court has very wide and far-reaching powers to make any order, including financial provision that is necessary to protect the interests and welfare of the ‘ward’ / the child.
In cases where a child has been taken out of Hong Kong, the Court can order that the child be sought and found, seeking the cooperation and assistance of other relevant authorities such as the Immigration Department.

Once a child is made as a ‘ward’, he or she is automatically prohibited from leaving Hong Kong without the consent of the Court.

Wardship proceedings are an entirely different form of proceedings which can be issued irrespective of any divorce or separation proceedings. It can be started quite quickly by any interested party – which is not necessarily a parent.

If circumstances are justified, wardship proceedings could be commenced by the Director of Social Services, who is empowered to protect children.

The issuing of wardship proceedings immediately makes the child concerned a Ward of the Court.

Once a child becomes a “Ward of the Court”, this means that the Court has the custody of that child and every major decision regarding that child’s welfare must be referred to the Court by making application accordingly. This would incur costs and, subject to the caseloads of the Court, can be very time-consuming.

That child remains a ward of the court until the child reaches the age of majority, or until a special Court order is made to end the wardship. Wardship proceedings should not be instituted lightly, but only where there are good grounds to justify it.

3. My wife refuses to see me and let me know where our daughter is, what should I do? How can I prevent my spouse from snatching our child?

A number of steps may be considered.

(1) Wardship Proceedings

First, where the circumstances warrant, the child could be made a ward of court as described above.

(2) Deposit of travel documents at solicitor’s office supported with a solicitor’s undertaking not to release them without consent of Court or relevant parties

As aforesaid, wardship proceedings could be very costly and time-consuming, it should therefore not be instituted lightly.

If you are concerned about your child’s ability to travel, either on his or her own travel document or on the strength of the travel documents of your spouse, you can request that the relevant travel documents be deposited at a solicitor’s firm together with the solicitor’s undertaking not to release these travel documents without your consent or the Court’s consent. However, this option is not absolutely secure as it may not prevent your spouse from obtaining a fresh or duplicate travel documents without your knowledge.

(3) Prohibition Order

If the deposit of the relevant travel documents as security is not feasible or not secure enough, you can consider applying for a prohibition order, which can be made within the divorce or separation proceedings. This is an order prohibiting the removal of the child from Hong Kong or out of your custody, care and control.

If either wardship proceedings or prohibition order is involved, your acting solicitor should immediately notify the Immigration Department by serving it with the prohibition order or wardship proceedings. The Immigration Department would then be obliged to notify all ports and airports and to stop or prevent the relevant child from leaving Hong Kong.

(4) Child Abduction and Custody Ordinance

In order to avoid the harmful effects of wrongful removal or retention of children in foreign countries, the Child Abduction and Custody Ordinance (Cap. 512 of the Laws of Hong Kong) has provisions to protect the interests’ of the relevant people. The Department of Justice would also co-operate with the Contracting States of the “Convention on the Civil Aspects of International Child Abduction” (which have the convention relationship with Hong Kong), and would assist the relevant parties in the return of those children to Hong Kong. For more details, please visit the Department of Justice’s webpage.

4. Can one parent take a child out of Hong Kong upon the grant of a custody order?

It is not uncommon that divorced couple fears that the former spouse would take the child out of Hong Kong either permanently (e.g. for emigration) or for holiday without his or her advance notice, thereby depriving him or her of the opportunity of child's visiting access.

In view of this, custody orders are endorsed with a notice in the form of a direction that neither parent is entitled to remove the child from Hong Kong unless the following conditions are met:

  1. obtain the approval of the Court; OR
  2. obtain the written consent of the other parent who is not responsible for taking the child out of Hong Kong, AND the giving of a general undertaking by the parent (who will take the child out of Hong Kong) to the Court to return the child to Hong Kong after any fixed period spent abroad or at the end of any agreed period, or earlier if called upon to do so by the Court.

Holidays

Disputes often arose between divorced couple over the division of holidays in respect of child access. Costly application would have to be made to the Court to resolve the disputes if the parties failed to come up with an agreement.

To save cost, upon the making of a custody order with the aforesaid (a) or (b) restriction specified on it, it is possible to file with the Court a general undertaking to return the child after any holiday period spent abroad.

This means that when you want to take the child out of Hong Kong, all you need to do is to obtain your spouse's written consent.

It is only when your spouse unreasonably withheld his or her consent that an application will have to be made to the Court. In the case of a normal holiday, it is unlikely that the Court will refuse the application unless there is good reason to do so.

If you believe that your spouse would object to you taking your child to overseas for holidays, you should inform your solicitor well in advance so that there is ample time for your solicitor to make the necessary application to the Court and to have an early hearing.

Permanent removal from Hong Kong

If a parent, who is granted with the custody of a child, intends to leave Hong Kong permanently for some reasons, that parent must make an application to Court so as to obtain an order from the Court allowing him or her to remove the child permanently from Hong Kong.

If the other parent opposes such application, the judge will have to balance the child's loss of regular contact with that parent against the liberty of the applicant parent (granted with custody) to choose where he or she wishes to live. The Court will not usually interfere with the choice of the parent with custody, if his or her decision to move is a reasonable one. As said, the Court would have regard to the interests of the child, which is of paramount consideration.

5. My daughter has been living with my husband since I separated from him two years ago. How likely is that I will be granted custody of my daughter if I apply for a divorce now?

As said, it is essential to maintain the status quo of a child so as to avoid disruption of the familiar life of a child. If a child has already settled well with one of the parents and is used to and happy with his/her surroundings and lifestyle, the Court is unlikely to consider taking the child away from that parent unless there are other compelling reasons.

Therefore you are unlikely to be granted custody of your daughter in this circumstance unless you can present other compelling reasons. However, you may have generous access to (i.e. to see) your child as approved by the Court.

6. How is a child's maintenance (financial support) determined?

a. Types of claim for child maintenance

The parent with custody is entitled to claim for financial support for that child from the other parent, whether within divorce or judicial separation proceedings.

If, by virtue of the needs of the child, immediate maintenance for a child is required, an application for interim maintenance pending suit (i.e. a final settlement or hearing) can be made to the Court.

In such circumstances, the Court is empowered to make various interim financial orders, e.g. periodical payments, secured periodical payments, and a lump sum for a child at any time after the petition for divorce or separation has been filed and such an application is made.

The Court can also make other orders at different stages of the proceedings: (1) on or after the making of the divorce decree nisi; (2) within guardianship of minors proceedings and (3) within wardship proceedings .

b. Age until which provision for child maintenance lasts

According to section 10 of the Matrimonial Proceedings and Property Ordinance , Court orders for periodical payments, secured periodical payments and a lump sum, etc can be made in favour of a child who is below 18 years old.

However, the ordinance further stipulates that payments under an existing order can extend beyond 18 years old if the child is or will be attending an educational establishment or undergoing some form of training, or if there are special circumstances which justify it (such as the child being disabled) or that make it appropriate to do so.

7. What factors will the Court consider in assessing the provision of child maintenance?

In accessing what financial provision should be made for a child, the Court shall consider all the circumstances of the case, especially the following matters:

  • the standard of living enjoyed by the family before the breakdown of marriage;
  • the financial needs of the child;
  • any physical or mental disability of the child;
  • the manner in which the child was being brought up and in which the parties to the marriage expected him or her to be educated;
  • the financial resources and needs or obligations of the parties to the marriage;
  • the any income, earning capacity (if any), property, or other financial resources of the child.

According to section 7 of the Matrimonial Proceedings and Property Ordinance , the Court is obliged to place the child, so far as it is practicable and just to do so, in the financial position in which the child would have been if the marriage had not broken down and each of those parties had properly discharged his or her financial obligations and responsibilities towards the child with the two considerations of:

  • the income, earning capacity, property and other financial resources which each of the parties to the marriage has or is likely to have in the foreseeable future;
  • the financial needs, obligations and responsibilities which each of the parties to the marriage has or is likely to have in the foreseeable future.

The aforesaid principle is easier said than done. In practice, most divorce cases would bring about a drop in their standard of living for all parties concerned, including the children. This is because usually there would be insufficient resources to maintain the previous lifestyle upon the break up of the family.

Other factors to be noted in relation to step children

As said, a ‘child of the family’ can include a child who is not the natural child of one of the parties to the marriage. Nowadays, given the increasing rate of divorce, there are many children who are living with a step-parent.

In such cases, according to section 7 of the Matrimonial Proceedings and Property Ordinance , the Court is obliged to have regard of the following factors, among the circumstances of the case-:

  • whether that party (against whom the claim is being made) had assumed any responsibility for the child's maintenance and, if so, to the extent to which, and the basis upon which, that party assumed such responsibility and to the length of time for which that party discharged such responsibility;
  • whether in assuming and discharging such responsibility that party did so knowing that the child was not his or her own;
  • the liability of any other person to maintain the child.

D. Financial Matters

Upon ascertaining what assets or capital, including shares, saving schemes, and endowment policies, or an interest in a trust fund, are available in the ‘family pot’ for distribution, approximate values for each has to be attributed. Thus, it is important that value of each property has to be agreed between the parties, if not, it has to be decided by the Court.

Then, the Court has to consider whether it is fair or practical to leave the capital as it presently stands or whether some adjustment needs to be made. In deciding what adjustment to make, if any, the Court will consider all of the factors referred to below.

1. How would the Court deal with or divide the matrimonial properties between the husband & wife upon divorce?

There are some general principles regarding the division of properties between the parties upon divorce:

a. Ownership of property

Disputes about bank accounts can arise in respect of ownership of the funds and property purchased with the funds derived therein.

If a bank account is in a spouse's name, then it appears that any money in the account belongs to that person, unless there is a contrary intention or another spouse has made a contribution to the fund.

If a bank account is held in joint names, then it appears that any money in the account belongs to both parties jointly, unless there is a contrary intention, e.g. that the account was put into joint names for convenience.

As a general rule, any property acquired with the funds from a bank account belongs to the purchaser.

Thus, if a husband draws money from a joint account to purchase shares or real property in his sole name, then it appears that these properties belong to him. But if the parties have pooled their resources together, the Court may treat the joint account as a 'common pool' and held that investments purchased by the husband with money from the joint account belonged to both husband and wife in equal shares, albeit the husband had made larger contributions to the joint account than the wife.

b. A roof over each party's head

The Court will ensure that, wherever possible, there is a roof over each party's head. This is in particular so when there are children in the family. The Court will ensure that the children are properly taken care of by providing them a secure home.

c. Percentage of the total capital available

Hong Kong Court used to assess the 'reasonable requirements' of the spouses and divided the assets accordingly. Leftover assets have very often been awarded to the breadwinner, usually the husband.

However, the Court of Final Appeal of Hong Kong had ruled in LKW v DD (2010) 13 HKCFAR 537 that a wife is entitled to half of the couple's assets when they divorce in Hong Kong.

This 50/50 rule will have major impact in cases where the financial assets are substantial. As a consequence, pre- and post-nuptial agreements will be extremely important for those in Hong Kong who wish to protect his/her personal wealth.

d. Maintenance or "Clean Break"

Apart from the share of joint capital, a wife may also be entitled to periodic maintenance. It is the court's duty to consider whether a "clean break" (i.e. to terminate the financial dependency of one party against another party) is appropriate on each case.

"Clean break" refers to the distribution of property and/or payment of one lump sum (in one go or by instalments) once and for all, so that the parties can put behind their unhappiness behind and start afresh without having to be reminded of the grievances of the breakdown of marriage or going through the burden of litigation again (e.g. to enforce for the arrears of periodical payments).

The rationale for making a lump sum order is to meet the wife’s reasonable requirements, and to recognize her contribution as a mother to the children and/or wife to the marriage. If she has actively participated in the family business or provided finance to the business, the lump sum award will be increased over and above her reasonable requirements so as to recognize the fact that she has ‘earned’ a share in the family assets.

However, no lump sum order will be made unless the respondent has capital assets out of which to pay it without crippling his earning power.

Is "clean break" possible?

Subject to the financial strength of the party being asked to provide maintenance (usually the husband), if there is a great antipathy and tension between the parties, the Court will usually strive to achieve a clean break if possible.

The amount of the lump sum required to achieve a 'clean break' varies from case to case. It is closely linked to the level and duration of maintenance that the applicant (usually the wife) could otherwise expect. The lump sum should cover the applicant's financial needs for that period.

If necessary, accountants can come up with a figure that takes the various factors into account, including the life span of a party, the predicted rates of interest and inflation. But such exercise is very costly and should only be taken if they are helpful and provide material assistance to the Court. Unnecessary use of accountants or experts is highly discouraged and would increase costs.

Considerations for the husband

A husband's liability to pay maintenance to his divorced wife ceases upon her remarriage.

Thus, if it is likely that his divorced wife will remarry in the near future, it will not be in his interests to pay a large capital (cash and/or real estate) to achieve a clean break. This is because such capital is not repayable upon her remarriage.

On the other hand, he should not forget that clean break, if achieved, would terminate his divorced wife's financial dependency on him. The husband can then put all the shadow and unhappiness of the marriage behind him and start a new life.

Considerations for the wife

As to the wife in a clean break situation, it is beneficial to her because she has financial independence. She is in possession of the capital sum and has the flexibility to use the money as she wishes. She does not have to go through the burden of litigation again (e.g. to enforce for the arrears of periodical payments; any possible application by her husband to vary the level of maintenance downwards by reason of his own change of circumstances).

The downside of having a clean break is that the lump sum is awarded on an once and for all situation. If the capital turns out to be insufficient to meet her needs or she fails to budget or invest it wisely, there is no point of return. She could not go back to Court and claim against her husband again. This holds true even if her divorced husband becomes rich after the divorce.

e. Ownership of a business

If a husband derives his income mostly from his own business which has a capital value, dispute can arise as to the valuation of the business.

If the business has its own premises or worthy possessions (real estate, cash, stocks, equipment etc), then valuations of these assets can be obtained by appointing a qualified person (e.g. accountants) to do so. If the business is not going to be sold either now or in the near future, its main value is the income which it would generate. This is in particular so if the husband is going to pay periodic maintenance to the wife and/or children, who will benefit from the continuity of the business, which would generate regular incomes.

The reason why disputes can arise between the parties is because business valuations provided by accountants instructed on behalf of each party are often very different, as different accounting approaches may be used.

In practice, the accountant appointed by the husband would usually adopt an approach that would result in a relatively low capital value of the business while the wife's accountant would tend to take an approach that would reflect the 'true picture' of the business worth. If the accountants cannot agree on a valuation, they may have to be called to give evidence at the hearing. This is likely to be rather costly.

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.

3. Can husband obtain maintenance from wife?

Yes, it makes no difference to the availability of financial relief for either party whether the petition for divorce or separation is filed by the husband or the wife. Although there is a common law presumption that the husband should maintain the wife, the law does not differentiate claims made by a wife against her husband and claims made by a husband against his wife. The same duty is imposed by statute (law) on a wife, if she does have the financial resources. However, in practice, a man may encounter a higher difficulty to claim financial support from his ex-wife.

4. What kind of maintenance order (or financially related order) is the Court empowered to make?

  • Maintenance pending suit (while application for divorce is in process) – This order also called “interim maintenance”. As its name suggests, this order is for the provision of maintenance pending the grant of final divorce decree. This is because very often there would be an interim period or a time gap between the filing of petition for divorce and the court hearing and the grant of the final divorce decree. Such kind of order cannot last beyond the final divorce decree. It will terminate in any event upon the death of either party. This order is subject to variation and the amount so ordered to be paid is not necessarily any indication of the amount which may be order to be paid upon the granting of the decree.

  • Periodical payments order – This is an order for maintenance which is to be paid after the final decree. The Court is empowered to limit the duration of the maintenance to a specified time, subject to the needs of the payee (the receiving party) and the circumstances of each case. This kind of order will normally terminate upon the death of either party or the remarriage of the payee. However, the Court may limit the duration of the order to an earlier time. Also, if there is any subsequent change of circumstances on the part of either payee or payer, this order can be varied.

  • Secured periodical payments order – secured periodical payments are ordered where there is reason to believe that the party ordered to make the payment will not pay them. As its name suggests, these are maintenance payments which are secured or guaranteed. However, it is pertinent to note that the secured provision is not to be a general charge on all assets. The Court is obliged to specify the assets on which security is to be given. The payments will continue until the death of the payee (not the payer, the party making payment), or the remarriage of payee, or an earlier date as specified by the Court. This order will only be imposed if there are reasonable grounds to believe that the common periodical payments order will be ineffective to carry out in practice and there are sufficient funds or assets of the payer whereby the payments can be secured e.g. where the payer has sufficient means but has a history of failing to abide by order so made (as in the interim maintenance order), poor record of financial irresponsibility, or has vowed to resist payment of maintenance if so ordered.

  • Lump Sum Order – It is an order for the payment of a capital sum in the case when the payee is entitled to one lump sum only. This order is closely related to the 'clean break' sought by a claimant. The capital sum payable under such order can be paid in various instalments. However, this order cannot be varied subsequently, because it is an ‘once and for all' order that is intended to create finality in litigation. The amount paid out is not recoverable in any event.

  • Property Adjustment Order – It is an order whereby one party is ordered to transfer to another his or her interest in property such as real properties, stocks, or car, etc. This kind of order, once made, cannot be varied. Situations under which property adjustment order will be made is when, for example, there is a need to allow each spouse a share in the capital value of the family assets, especially the matrimonial home.

  • Settlement of property order – This is an order requiring one party to transfer specified property for it to be held on trust. The trustee(s) will hold the property for the benefit of the beneficiary, (usually either the other party or the child of the marriage) in accordance with the terms of a trust deed. This type of order is not common and factors such as the child’s welfare, the income, earning capacity, property and other financial resources which each parent has or likely to have in the foreseeable future will be taken into account.

  • Variation of settlement order – Where a trust (which is sometimes called a settlement) is already in existence, the Court can vary the terms of that trust or settlement. Again, such an order is not common.

5. What is “nominal maintenance”? Should I apply for such maintenance from my spouse in divorce proceedings?

In circumstances where a wife is not in need of any maintenance at the time of divorce but wishes to retain her rights to apply for the same in future, she can seek a nominal maintenance order. This might perhaps be a payment of HK$1 per annum which in practice is never actually made.

However, such order is subject to the possibility of variation subsequently. Husbands should be aware that by agreeing to pay nominal maintenance, there is a risk that they may find themselves having to pay a higher level of maintenance in the future. From a wife’s point of view, a nominal order will give her a sense of security as her maintenance claim is reserved rather than dismissed.

6. If there is a change of financial status for a spouse, will the maintenance order be subsequently adjusted or varied by the Court?

As periodic maintenance payments can last for a number of years, their level is open to variation if there is a subsequent change in the circumstances of either party such as the loss of employment or inflation.

The original order can be varied to reflect the change in circumstances.

Note that no clean break can be achieved with child's maintenance, which can always be varied, according to the needs of the child. It is usually varied upwards as the child grows older and becomes more expensive to maintain.

Example one: Mr. A applied for a reduction in the payments he was making to his ex-wife because he had been made redundant and the only replacement job he could find had a considerably lower salary. The Court may accept that he could no longer afford to pay at the old rate.

Example two: Connie found two years after the award of financial maintenance that she could no longer manage on the maintenance she was receiving. Her former husband had received a pay rise and agreed that the payments should be increased. The original order may be varied to reflect such change of circumstances.

Sometimes parties would agree that maintenance should be increased annually by a certain percentage or in line with an established inflation measuring index. This can avoid making costly regular applications back to the Court.

However, note that not all kinds of court orders can be varied.

The following orders can be varied:

  • Interim maintenance (Maintenance pending suit)
  • Periodical payments
  • The instalments by which a lump sum is payable
  • An order for the sale of property.

The following orders cannot be varied:

  • Lump sum orders
  • Property adjustment orders

That is because these orders (lump sum orders & property adjustment orders) are 'once and for all' orders. They are intended to create finality in litigation so that the parties can put their antipathy behind and plan for the future without worrying about whether an order will be overturned.

7. If I got a large sum of money after the divorce (e.g. winning lottery or inherit a fortune from family), do I have to share with my ex-spouse from the maintenance?

This Question can be answered in two parts:-

Before the granting of maintenance order

The Court in assessing maintenance to be made for a divorced spouse is obliged to have regard not only to the financial resources and needs, obligations and responsibilities which the parties have at present, but also prospective assets which each of them is likely to have in the foreseeable future.

Prospective assets include, but not limited to, lump sum pension payable on retirement, capital sum due to be received under a settlement or which might be received on the dissolution of a partnership, gratuity payable on termination of contract etc. In many cases, the prospective asset consists not of something in which the party already has a vested or contingent interest but simply something which he or she is likely to inherit.

The issue is whether the asset is one which the party is likely to have in the foreseeable future. If it is, then the Court will have regard to it in considering whether to make a lump sum order, or whether to adjourn the application for further payment.

Thus, where the husband has reasonable prospect of receiving substantial assets, it may affect the amount of the lump sum which he is ordered to pay to the wife, or they may justify an order which provides the wife with capital or further capital on the happening of a future event or they may make it appropriate to adjourn her application until that event occurs.

Because of the Court's duty to have regard to the foreseeable future, it is necessary to take into consideration not only existing liabilities but also those which are likely to be incurred in the foreseeable future.

Similarly, the prospective assets and liabilities of the wife have to be taken into account in the application for maintenance.

After the order of maintenance was granted

The Court has wide powers to vary or discharge certain orders (whether or not made by consent) or to temporarily suspend and revive any provision contained therein.

The Court has a wide discretion in variation proceedings. It can take into account increases in both the capital and income resources of the payer.

There is a recent UK Court of Appeal case ruling that when seeking variation of periodical payments, there is no need to show a change of circumstances, or an exceptional or material change of circumstances. As the Court has an absolute discretion, it can look at the case afresh, and need not regard the original order as the starting point.

However, when exercising its powers in variation proceedings, the Court must consider all the circumstances of the case, it must give first consideration to the welfare of any child of the family aged under 18, and any changes of circumstance including any change in any of the matters to which the Court was required to have regard when making the original order.

The Court will be vigilant to ensure that the variation application is not a disguised form of appeal.

8. What can the wife/husband do if the other party refused or failed to make maintenance payment?

You may consider the following ways to enforce the court order for maintenance against your spouse:

a. Judgment summons

You can apply for a judgment summons.

Under the judgment summons, your spouse is being summoned to Court to reveal his or her financial strength to settle the arrears. There should be no delay in pursuing for the outstanding amount as the court might refuse to enforce the Order of payment for those arrears due more than 12 months before proceedings to enforce the payment of them have begun.

The judge has the power to make a new order for payment of the amount due or to commit your spouse to prison (according to Rule 87 of the Matrimonial Causes Rules) if he or she cannot justify his or her failure to pay. If your spouse fails to attend the hearing, the court will adjourn the case to a further hearing. If he or she still fails to attend on the adjourned hearing, the judge can commit him or her to prison in his or her absence.

Any committal to prison can be suspended on terms relating to the payment of the debt.

b. Attachment of income to satisfy order

With reference to section 28 of the Matrimonial Proceedings and Property Ordinance, where a maintenance order has been made against a maintenance payer and:

  1. a court is satisfied that the payer has without reasonable excuse failed to make any payment which he is required to make by the maintenance order; or
  2. a court is satisfied that there are reasonable grounds to believe that the payer will not make full and punctual payment in compliance with the maintenance order; or
  3. the payer and designated payee agree to the making of an order under this section; and

there is any income capable of being attached payable to the payer,

the Court may order the income to be attached as to the whole or part of the amount payable under the maintenance order and the amount attached to be paid directly from the payer's sources of income (e.g. his/her employer) to the specified payee. However, the payer could retain certain amount for his/her reasonable living expenses before such deduction.

c. Prohibition order

It is possible to apply to the Court on an ex-parte basis (applied unilaterally by one of the parties only) for an order that your spouse be prevented from leaving Hong Kong pending recovery of the debt.

If granted, the order is served on the Director of Immigration and your spouse will not be allowed to depart if he or she attempts to leave Hong Kong.

This procedure can be very effective in particular when your spouse travels frequently as it is likely to cause your spouse considerable inconvenience. However, you should bear in mind that the Court is reluctant to limit a person's liberty in this way. Therefore such an application should only be made as a last resort only when every other method of enforcement has been exhausted and proved inappropriate.

E. Matrimonial home

1. What factors will be considered by the Court in awarding use or possession of the matrimonial home (the main residential home of a couple)?

That would depend very much on the family's needs, resources and all the other aforesaid factors that the Court is required to consider.

Matrimonial home is often the parties' most valuable asset.

The nature of the matrimonial home is one of the material factors to be considered.

i. Rented home

Either one party (usually the party who is responsible for looking after the daily welfare of the children) will remain in the rented home, so as to maintain status quo for the children. As to the responsibility for the payment of rent in such case, it would depend on the facts of each case.

Alternatively, where circumstances warrant, alternative accommodation will be found for both parties.

ii. Quarters provided by an employer of a spouse

If a quarter is provided by one of the parties' employer, the other party will usually have to vacate upon divorce, as he / she is no longer the spouse of the other party.

In such circumstances, the vacating party may have the right to claim for the costs of alternative accommodation from the other party, as it would be his / her substantial "needs".

iii. If the parties own their home

The Court has a wide discretion to order the transfer of matrimonial home, in whoever's name(s) it is held, by way of a property adjustment order, or payment of a lump sum necessitating its sale. The following options are opened:

  1. Sale

    The property can be sold by agreement.

    The net sale proceeds can be split in different combination: i.e. equal shares, agreed shares or a percentage of share decided by the Court as it sees fit.

    The particular circumstances of each party's contributions, needs and liabilities will dictate the amount of shares each party would be entitled to e.g. the need to re-house the children or to redeem a mortgage.
  2. Transfer

    Ownership of the property can be transferred from one party to the other either outright or upon payment of a sum of money (while the title in the property remains in the payer).

    Generally, if there are children who are going to live with the wife, to maintain status quo, an attempt will be made to preserve the matrimonial home for them rather than for the husband. Of course, this is subject to the facts of each case in particular the parties' resources.

    If the Court found that the value of the property being transferred is more than the wife's total entitlement to capital, then for the sake of fairness, the wife is expected to compensate the husband by paying him a lump sum equivalent to the ascertained "gain".

    If the wife cannot immediately compensate her husband for the "gain", the property can be transferred into the wife's name subject to the husband's legal charge on the property (in the same way as a mortgage). In this case, the husband can maintain an interest which can be expressed as a lump sum or as a percentage share of the property. His interest can be realized at a later date.

    If both parties are unable to discharge the mortgage on the matrimonial home immediately, subject to the approval of the mortgagee, the mortgage will also have to be transferred into the wife's name. In such case, the wife will be responsible for the repayment of the mortgage. If the wife does not have an independent income or stable income, the mortgagee may require the husband to guarantee the repayment of mortgage.

  3. Joint ownership

    If one party wants to reside in the matrimonial home upon divorce, where the circumstances warrant, such as the child is living there and the parties have sufficient financial resources, the matrimonial home can be retained in joint names and have it sold at a later specified date such as when the child has reached a specified age or finished his / her full-time education, whichever is the later.

    Upon sale, the net sale proceeds would be divided in equal shares, agreed shares, or a percentage of shares that the Court sees fit.

    Unless and until the matrimonial home is sold, the party who lives with the children would be granted exclusive occupation.

  4. Where both parties have an interest in the home

    There are circumstances whereby the husband is retaining an interest either in the matrimonial home or an alternative accommodation.

    This is particularly so where the husband has an ongoing commitment to the repayment of mortgage.

    The husband's interest can either be secured by joint ownership, or by a legal charge on the property whereby his interest can be expressed as a lump sum or as a percentage share of the property.

    In either situation, the parties had to agree as to when the husband will be able to realize his interest.

    The following events are usually the specified time:

    • Upon the death, remarriage, or cohabitation of the wife;
    • When the child or the youngest child has reached a specified age or completed his or her full-time education; or
    • When both parties reached agreement for sale.

    However, this type of arrangement is a viable option only if the husband is quite well-off and does not need capital immediately.

    There is a risk for the wife is this option is invoked. Although the wife can enjoy exclusive occupation (with children, if any) of the matrimonial home for quite some time, she will have to accommodate herself from her share of the net sale proceeds when the matrimonial home is eventually sold (unless she has other resources).

    If her share of the net sale proceeds turns out to be insufficient (to acquire another replacement property), she has no other capital or mortgage potential to resort to.

    Also, one should not overlook the fact that whenever both parties have an interest in the matrimonial home, there is a potential for conflict. Thus, If possible, avoid such kind of settlement, as the parties have already suffered enough tension and antipathy upon divorce. They should avoid conflict or costly litigation again.

    If it is not feasible, one should try to anticipate potential problems that would arise and make advance provision for their eventuality e.g. payment for interior or external renovation, it is reasonable for each party to contribute to such expenses in accordance with the respective percentage share in the property.



IV. Protection for victims in domestic violence

What is domestic violence?

Domestic violence not only covers physical violence, but also covers any act that is regarded as ‘molestation’. Therefore, the following acts can also be possibly treated as domestic violence:

  • Physical abuse
  • Verbal abuse
  • Psychological abuse

If you are in doubt, please contact the police or any support services for consultation.

Who is eligible for protection?

Under the Domestic and Cohabitation Relationships Ordinance, the following categories of persons are within the scope of injunction orders, commencing on 1 January, 2010:

  • Spouse or former spouse;
  • Cohabitant or former cohabitant ((whether of the same sex or of the opposite sex) who live together as a couple in an intimate relationship);
  • Child of the victim or child who lives with the victim;
  • Victim’s step-father, step-mother, step-grandfather or step-grandmother;
  • Victim’s father-in-law or mother-in-law who is the natural parent, adoptive parent or step-parent of the victim’s spouse;
  • Victim’s grandfather-in-law or grandmother-in-law who is the natural grandparent, adoptive grandparent or step-grandparent of the victim’s spouse;
  • Victim’s son, daughter, grandson or granddaughter (whether natural or adoptive);
  • Victim’s step-son, step-daughter, step-grandson or step-granddaughter;
  • Victim’s son-in-law or daughter-in-law who is the spouse of the victim’s natural child, adoptive child or step-child;
  • Victim’s grandson-in-law or granddaughter-in-law who is the spouse of the victim’s natural grandchild, adoptive grandchild or step-grandchild;
  • Victim’s brother or sister (whether of full or half blood or by virtue of adoption);
  • The brother or sister (whether of full or half blood or by virtue of adoption) of the victim’s spouse;
  • The victim’s step-brother or step-sister;
  • The step-brother or step-sister of the victim’s spouse;
  • The victim’s uncle, aunt, nephew, niece or cousin (whether of full or half blood or by virtue of adoption);
  • The uncle, aunt, nephew, niece or cousin (whether of full or half blood or by virtue of adoption) of the victim’s spouse; or
  • The spouse of any brother, sister, step-brother, step-sister, uncle, aunt, nephew, niece, cousin.

What can I do immediately if my spouse assaults me and my children?

If you or your children are assaulted or threatened by your spouse/partner or person listed in the previous section, you should report the matter to the police. For any emergency, please contact 999.

The police officers who deal with the incidents are all professionally and specially trained in the domestic violence area. Therefore you should not worry about their knowledge and experience in dealing with your particular situation.

According to their code of conduct, you should be interviewed by an officer of the same gender, if available, and separately from the perpetrator to ensure privacy and safety. You will never be asked in the presence or hearing of the abuser if he/she wants to bring a criminal complaints against the abuser and whether he/she would be prepared to give evidence at court hearing.

Please be noted that if there is evidence of a crime, the perpetrator should be arrested, irrespective of your wishes. The arresting officer should explain the procedure and inform you of the arresting officer's number and the name of the Police Station to which the abuser will be taken. If there is insufficient evidence to support the report against the abuser, the situation and reasons should be explained to you.

You shall also be given by the officer some information about support services and hotlines for practical and emotional support.

If you do not have immediate danger from your perpetrator or you do not want him or her to be arrested, you may consider the following options:

a) Injunction Orders

1. What injunction orders are available?

Under the Domestic and Cohabitation Relationships Ordinance (Cap. 189), an application can be made by the eligible person to the District Court or the Court of First Instance, the court may grant an injunction which either:

    (1) restrains the offender from using violence against the applicant or a child living with the applicant; or
    (2) excludes the offender from the matrimonial/shared home or from a specified part of the matrimonial/shared home or from a specified area, regardless of ownership of the property.

Where a Power of Arrest has been attached to an injunction, a police officer may arrest, without warrant, if you are being abused and threatened again by the perpetrator.

2. How long do the injunction orders last?

The maximum length of an injunction order is 24 months. The order can be renewed once as the court sees appropriate.

3. Can I apply for injunction orders without informing the abuser?

The Court may make an order at first without the abuser being told about it. In other words you may apply to the Court without telling him/her what you are going to do. However, the written order must be served upon the perpetrator before it is of any effect. You must therefore take steps to ensure that you are in a place of safety until the order has been served.

4. How can I apply for the injunction orders?

The application forms for injunction orders can be obtained either from a solicitor, the Legal Aid Department, or the Family Court Registry.

    Family Court Registry

    Address: M2, Wanchai Law Courts, Wanchai Tower, 12 Harbour Road, Hong Kong
    Telephone: 2840 1218
    Fax: 2523 9170
    Website: http://www.judiciary.gov.hk/en/others/contactus.htm#FC
    E-mail: familycourt@judiciary.gov.hk
    Opening hours: Monday to Friday 9:00 a.m. to 1:00 p.m.; 2:00 p.m. to 5:00 p.m.; Saturday 9:00 a.m. to 12:00 noon (Closed on Sundays and Public Holidays)

Due to the complexity of the procedures, you are recommended to find solicitors’ assistance if possible. For any possible financial assistance, the Legal Aid Department will be of help.

b) Harmony House

Harmony House provides a refuge (or shelter) for battered women. It is a safe retreat for women, with or without children, who are in immediate danger of violence. The main concern is the safety of and the support for the battered women, and to provide a temporary residential service to these women. Most of the residents stay for about 2 weeks, but in special cases, the period of stay may extend up to 3 months.

During their stay the refuge provides the residents with individual and group counselling and other related resources and services. The refuge also encourages mutual support and foster community spirit among the residents. Each resident had her own free time and privacy.

In order to provide the immediate service to battered women, the refuge has a 24 hours hot line service, battered women may contact the refuge directly by ringing 2522 0434.

Men facing domestic violence can also call the Harmony House (men's hotline) at 2295 1386.

For more details about Harmony House, you can also visit its website.

c) Support Services

There are governmental as well as non-governmental organisations (NGOs) who offer practical (eg. medical, financial and housing advice) and emotional support for victims of domestic violence. Some organisations provide services to anyone, whilst some other will serve particular groups. You can refer to the following resource list for assistance: (as updated in June, 2011)

1) Organisations for all victims

2) Organisations for female victims (with or without children)

Target Group

Women with or without children who are in immediate danger of violence or having serious personal or family problems. Cases admitted to the refuge centres may stay at the refuge for two weeks but the period of stay may be extended to a maximum period of 3 months.

    b) Wai On Home for Women
    Telephone: 2793 0223

    c) Serene Court
    Telephone: 2787 6865

    d) Sunrise Court
    Telephone: 2890 8330

    e) Dawn Court
    Telephone: 2243 3210

3) Organisations for male victims

4) Oragnisations for lesbian victims

5) Organisations for gay victims



V. Case Illustration

Scenario:

Mr. J and Ms. A are a couple with a 12-year-old son. Mr. J is an accountant and his wife Ms. A is a nurse. Their son has just entered secondary school this year.

Ms. A suspects that Mr. J has a mainland mistress and their relationship has been deteriorating in recent years. They have sought assistance from some family mediation agencies but they still failed to settle their differences. The family used to live in a flat (in which the mortgage payments are shared between the couple) but Mr. J moved out last year. Ms. A, who cannot stand the existing relationship, has decided to petition for divorce.

Question 1:
It seems that Mr. J does not object to divorce. Can Ms. A present a divorce petition to the Family Court at this stage? Answer 1

Question 2:
What should Ms. A do when she applies for divorce? Answer 2

Question 3:
If the child prefers to live with Ms. A, does it mean that Mr. J has no chance to obtain his son's custody? Answer 3

Question 4:
A divorce decree has been granted and the child's custody has been granted to Ms. A. Can Mr. J see or does he have visiting access to his son? Answer 4

Question 5:
The Court ordered that Mr. J has to provide financial support for his son. When will he be discharged of such liability?Answer 5

Question 6:
Can Ms. A apply for maintenance pending suit (interim maintenance) for herself before the completion of divorce proceedings? Answer 6

Question 7:
The Court ordered that Mr. J should pay maintenance to Ms. A. Are there any ways to ensure that Mr. J will make maintenance payment to Ms. A after the divorce? Answer 7

Question 8:
When will Mr. J be discharged from his liability to pay maintenance to Ms. A? Answer 8

Question 9:
Mr. J has suffered a pay-cut and he doesn't want to pay maintenance to Ms. A. Are there any ways that Mr. J can avoid paying the maintenance? Answer 9

Question 10:
Will Mr. J still be required to pay the mortgage even if he is not awarded to use the matrimonial home? Answer 10


Answer 1:

It is a concrete ground for divorce petition if Ms. A and Mr. J have lived apart for a continuous period of at least 1 year before filing the petition, and that Mr. J agrees to divorce. For other valid grounds, please refer to “What are the grounds for divorce?”.

Also unless the Court allows otherwise, a divorce petition can be presented only if the parties have been married for at least 1 year. Ms. A and Mr. J should have no problem in this aspect.

Answer 2:

Please refer to “How to apply for divorce?”

Answer 3:

No, it may not. In any proceedings relating to a child, the welfare of the child is the first and paramount consideration. Each case will depend on its own facts. When dealing with a dispute over a child, the Court will take into account all the relevant factors (e.g. the personality, financial resources of the parents, etc.). The child's view is not overriding. It has to be balanced with other factors.

Answer 4:

Mr. J may have visiting access to his son.

Visiting access refers to the contact with the parent who does not have the custody of the child / children. The parent without care and control of the child can and should continue to play an important parental role. It is important to point out that the making of a sole custody order to one parent does not remove the other parent's right to be involved in his or her child's upbringing. Such a parent is always able to make an application to the Court on any individual question of the child's welfare and to ask the Court to rule on a dispute.

Further, even if a parent has sole custody, the Court would disapprove of that parent making a major change to the child's life without at least informing the other parent, assuming that the parents were still in contact with each other.

Answer 5:

In normal circumstances, court orders for periodical payments, secured periodical payments, a lump sum, and a transfer of property can only be made in favour of a child who is below 18 years old.

However, payments under an existing order can extend beyond 18 if the child is or will be attending an educational establishment or undergoing some form of training, or if there are special circumstances which justify it (such as the child being disabled) or that make it appropriate to do so.

Answer 6:

Yes, Ms. A can apply for this maintenance which is available for the duration of the divorce proceedings only. It would be terminated upon the grant of the final decree of divorce (decree absolute), or earlier if the Court do orders. The Court is required to make such order as is reasonable.

Answer 7:

Ms. A can consider applying for the following orders:-

(1) Secured periodical payments Order – As its name suggests, these are maintenance payments which are secured or guaranteed. However, it is pertinent to note that the secured provision is not to be a general charge on all assets. The Court is obliged to specify the assets on which security is to be given. The payments will continue until the death of the payee (not the payer, the party making payment), or the remarriage of payee, or an earlier date as specified by the Court. This order will only be imposed if there are reasonable grounds to believe that the common periodical payments order will be ineffective to carry out in practice and there are sufficient funds or assets of the payer whereby the payments can be secured e.g. where the payer has sufficient means but has a history of failing to abide by order so made (as in the interim maintenance order), poor record of financial irresponsibility, or has vowed to resist payment of maintenance if so ordered.

(2) Lump Sum Order – It is an order for the payment of a capital sum in which the payee is entitled to one lump sum only. This order is closely related to the ‘clean break’ sought by a claimant. The capital sum payable under such order can be paid in various instalments. However, this order cannot be varied subsequently, because it is an ‘once and for all’ order that are intended to create finality in litigation.

(3) Property Adjustment Order – It is an order whereby one party is ordered to transfer to another his or her interest in property such as real properties, stocks, or car, etc. This kind of order, once made, cannot be varied.

Answer 8:

The maintenance order will usually terminate upon the death of either party or the remarriage of the payee (the one who receives the maintenance). However, the Court can limit the duration of the maintenance payment to a shorter specified time.

Answer 9:

A court order must be strictly followed, failing which is a contempt of court (with a fine or an imprisonment penalty). In general, a payer can apply to the Court for variation of maintenance order if there is a change in circumstances (e.g. being bankrupt, made redundant, etc.) that render him unable or reduce his ability to pay the maintenance.

Answer 10:

It is possible that the original mortgage will be retained or a new mortgage will be taken. Depending on the circumstances, it may be necessary for the husband (Mr. J) to continue to pay, or at least to partly contribute to, the mortgage repayments. This can either be effected by direct payment to the mortgagee or through the maintenance paid to Ms. A.

In circumstances where the property (and therefore the mortgage) is to be held in the wife's sole name and the wife does not have an independent income of her own, the mortgagee may require the husband to guarantee the payments.



Related Websites

  • Hong Kong Judiciary (www.judiciary.gov.hk)
  • The Duty Lawyer Service (www.dutylawyer.org.hk)
  • Bilingual Laws Information System (www.legislation.gov.hk/index.htm)
  • The Law Society of Hong Kong (www.hklawsoc.org.hk)
  • Social Welfare Department (www.info.gov.hk/swd/html_cor_info/tel_fax.html)
  • Harmony House (www.harmonyhousehk.org/index1.asp)
  • Hong Kong Council of Social Service (www.hkcss.org.hk/index_e.htm)
  • Hong Kong International Arbitration Centre (www.hkiac.org)
  • Caritas–Hong Kong (www.caritas.org.hk/Caritas_HK/eng/What_we_are/growing.asp)
  • Hong Kong Catholic Marriage Advisory Council (www.cmac.org.hk/)
  • Hong Kong Christian Service (www.hkcs.org/)
  • Hong Kong Family Welfare Society (www.hkfws.org.hk/new/eng/index.html)
  • Hong Kong Sheng Kung Hui Welfare Council (www.skhwc.org.hk/~orweb_prod/)
  • St. James’ Settlement (www.sjs.org.hk/)
  • Yang Memorial Methodist Social Service (www.yang.org.hk/)
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