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.
A. Deed of Separation
Deed of Separation 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.
B. 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.
C. 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. 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. For details about the minimum 1 year rule of marriage, please refer to Matrimonial Matters > Divorce > Pre-conditions for divorce > C. Can I get a divorce in Hong Kong? What conditions do I need to comply with? > 3. Length of marriage .
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.
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.
1. 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.
2. 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.
3. 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.
4. 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.
5. 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.
6. 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.
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.
8. Are there any formal organizations or voluntary agencies providing family mediation services to couples before or after divorce?
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: firstname.lastname@example.org)
You may consult your own lawyer or social worker, etc. or 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,
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
Fax: 2529 5035
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: email@example.com
Hong Kong International Arbitration Centre
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,
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 Home Affairs Enquiry Centres in which the Legal Advice Centers are operating are:
- Central and Western Home Affairs Enquiry Centre (Tel: 2852 4378)
- Eastern Home Affairs Enquiry Centre (Tel: 2896 6968)
- Islands Home Affairs Enquiry Centre (Tel: 2852 4324)
- Kwun Tong Home Affairs Enquiry Centre (Tel: 2342 3431)
- Shatin Home Affairs Enquiry (Tel: 2158 5352)
- Tsuen Wan Home Affairs Enquiry Centre (Tel: 3515 5805)
- Wanchai Home Affairs Enquiry Centre (Tel: 2835 1996 / 2835 1997)
- Wong Tai Sin Home Affairs Enquiry Centre (Tel: 3143 1168)
- Yau Tsim Mong Home Affairs Enquiry Centre (Tel: 2399 2111)