IX. Case Illustration
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.
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?
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 Divorce > Procedures and grounds for divorce > A. What are the grounds for divorce? Must I explain why I want a 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.
2. What should Ms. A do when she applies for divorce?
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?
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.
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?
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.
5. The Court ordered that Mr. J has to provide financial support for his son. When will he be discharged of such liability?
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.
6. Can Ms. A apply for maintenance pending suit (interim maintenance) for herself before the completion of divorce proceedings?
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.
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?
Ms. A can consider applying for the following orders:-
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.
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.
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.
8. When will Mr. J be discharged from his liability to pay maintenance to Ms. A?
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.
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?
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.
10. Will Mr. J still be required to pay the mortgage even if he is not awarded to use the matrimonial home?
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.