1. Apart from going to Court to apply for a divorce, are there any other channels through which a married couple can deal with their unhappy or broken marriage? What are the differences between those other channels and divorce proceedings?
The alternatives to divorce proceedings available to parties to an unhappy or broken marriage are as follows:
Deed of Separation
Deed of Separation is a separation agreement made between the two parties by themselves. The agreement may specify a period of separation, and what the parties may do with their children (if any) and how their children’s and each other’s maintenance will be provided.
If no separation 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. If the Court order that the parties be separated, 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.
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 of judicial separation 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.
Family mediation is a voluntary 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. A trained, impartial third person (the mediator) can assist both parties to communicate and negotiate issues in a confidential setting.
To know more about the above alternatives, please visit Matrimonial Matters > Divorce > Resolution methods other than divorce .
2. What can I do if I cannot afford to retain a lawyer to represent me in divorce or matrimonial proceedings?
You may seek legal advice and/or legal representation from the relevant bodies.
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: firstname.lastname@example.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.
To know more about the pre-conditions for divorce, please visit Matrimonial Matters > Divorce > Pre-conditions for divorce.
3. What are the factors considered by the Court in awarding custody of a child in family proceedings?
In all matters relating to children in family proceedings, the welfare of the child is the first and paramount consideration for the Court. 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.
To know more about the matters affecting children for divorce, please visit Matrimonial Matters > Divorce > Matters affecting children > A. What factors will be considered by the Court in awarding custody of a child to either or both parties? .
4. Can one parent take a child out of Hong Kong by way of a custody order?
Custody orders may contain directions relating to the removal of a child from Hong Kong in the following ways:
Prohibition on removal from Hong Kong
Custody orders can be 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:
- obtain the approval of the Court; OR
- 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.
Removal from Hong Kong during holidays
Upon the making of a custody order with the aforesaid restrictions 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 a party needs to do is to obtain a written consent from his/her spouse.
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.
To know more about the matters affecting children for divorce, please visit Matrimonial Matters > Divorce > Matters affecting children > D. Can one parent take a child out of Hong Kong upon the grant of a custody order?
5. How would the Court deal with matrimonial properties upon divorce?
There are some general principles adopted by the court in dealing with properties owned by the parties to a divorce proceeding:
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.
“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.
The 50/50 rule
The Court of Final Appeal of Hong Kong had ruled in LKW v DD 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.
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.
Ownership of 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. The reason is that 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.
To know more about financial matters for divorce, please visit Matrimonial Matters > Divorce > Financial matters > A. How would the Court deal with or divide the matrimonial properties between the husband & wife upon divorce?
6. What can I do if my former spouse refused or failed to make maintenance payment as ordered by the court?
You may consider the following ways to enforce the court order for maintenance against your former spouse:
You can apply for a judgment summons. The judge has the power to make a new order for payment of the amount due or to commit your former 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 former spouse fails to attend the hearings repeatedly, the judge can commit him or her to prison in his or her absence.
Attachment of income to satisfy order
- 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
- 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
- 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.
It is possible to apply to the Court on an ex-parte basis (applied unilaterally by one party only) for an order that your former spouse be prevented from leaving Hong Kong pending recovery of the debt. This procedure can be very effective in particular when your former spouse travels frequently as it is likely to cause your former 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.
To know more about financial matters for divorce, please visit Matrimonial Matters > Divorce > Financial matters > H. What can the wife/husband do if the other party refused or failed to make maintenance payment?