Family Law Glossary

Abduction

 

 Wrongful removal or retention of a child under the age of 16 from the jurisdiction of their habitual residence, where such removal or retention is in breach of rights of custody of the child attributed to a person, an institution or any other body.
Access The right of the child to see the non-custodial parent, or in the case of a joint custody order, the right of the child to see the parent who does not have “care and control” of the child as ordered by the Court.
Adoption

 

 The process by which all parental rights and responsibilities for a child are transferred to an adopter pursuant to a Court Order.
Adultery One of the legal grounds that a spouse can rely on to show that their marriage has irretrievably broken down. It is sexual intercourse between a married person with a person of the opposite sex, other than their spouse.
Alternative Dispute Resolution

 

 The process of settling disputes outside of the Court process.
Ancillary Relief

 

 Applications initiated by a spouse to the Court for financial claims in matrimonial proceedings.

 
Answer to Questionnaire

 

 An obligatory legal document wherein a party provides information to the other party in response to the other party’s request for particulars on their Form E in a Questionnaire. This will include provision of supporting documents or other evidence in support of an answer, if necessary.
Avoidance of Dispositions

 

 An Order by the Court setting aside a transfer of property (including cash transfers, stock, real estate, etc.) made with the intention of defeating the ancillary relief claim of a party. Where the property was disposed of by a party within 3 years of the application, there is a rebuttable presumption that the property was disposed of with the intention of defeating the other party’s ancillary relief claim.
Barrister A lawyer specialising in Courtroom litigation and advocacy who represents a party and appears in Court to argue the case on their behalf before a judge. Barristers of certain seniority are referred to as Senior Counsel (or Queen’s Counsel in the UK).
Care and control When a party is ordered the “care and control” of a child, it usually means that the child resides with them and that they have responsibility for the daily care/welfare of the child (I.e. decide what they wear and what they eat).
Child Abuse

 

 Any act that endangers or impairs the physical, psychological, emotional health or development of a child.
Children’s Appointment

 

 A mandatory hearing specifically concerned with any children related issues. A Children’s Appointment is generally listed to be heard during the early stages of a case in order to narrow down the issues in dispute. The Court will give directions for the conduct of the proceedings in relation to the children.
Children Dispute Resolution Hearing

 

 A mandatory hearing in most children’s disputes. The objective of the hearing is to allow parties to present their arguments regarding children matters in front of a judge, who may give an indication as to the likely approach the Court will take if the case proceeds to a trial. It serves as a less formal opportunity for the Court to encourage settlement of children’s disputes between the parties without having to go to trial.
Children’s Form (Form J) A form prepared by each spouse which contains detailed information on the child’s current living and access arrangements, schooling and travel arrangements and each spouse’s respective proposed future arrangements on the same.
Clean break

 

 A financial order that leads to the end of any financial relationship or reliance between divorcing spouses. This is commonly achieved by way of a lump sump order or transfer of property from one spouse to the other, and no periodical payments.
Committal Proceedings Court proceedings in which a spouse applies to the Court for an order against the other spouse who has allegedly breached a Court Order or undertaking. This may result in the spouse who is in breach of the Order or undertaking being committed to prison, or having to  pay a fine, or being subject to such other order that the Court deems fit.
Consent Summons

 

 A legal document containing all the terms or provisions agreed between parties. For instance with regard to directions for further Court hearings and/or the timetable for the filing of legal submissions and/or settlement terms for the Court’s consideration and approval. Once approved by the Court, a binding Order can be made, which the parties have to comply with.
Cross Petition A legal document in reply to the Petition for divorce, which denies certain facts or allegations contained in the Petition.
Custody A party may be ordered “Custody” of a child. This denotes the party’s right to make important decisions with respect to the child’s upbringing, such as those concerning the child’s education, medical treatment, religious beliefs, etc. However, even if not granted custody, a parent will still have input over these issues, which should be respected.
Decree Absolute The final Court Order dissolving a marriage.
Decree Nisi A tentative Court Order dissolving the marriage. The marriage is not dissolved until the grant of the Decree Absolute by the Court.
Defined Access

 

 Detailed access arrangements prescribed for the non-custodial spouse to have access time with their children, perhaps including the day, time, and even location of the access, as decided by the Court.
Desertion

 

 One of the legal grounds that a spouse can rely on to show that their marriage has irretrievably broken down. It is the intentional permanent abandonment of one spouse by the other without the other’s consent and without reasonable cause.
Domestic violence

 

 Violence or abuse that occurs between individuals who are generally related by blood or in (or previously in) an intimate relationships, which may include situations where an individual acts to gain control or power over, or dominate, another person.
Domicile An individual is domiciled in Hong Kong if he or she has physically lived in Hong Kong and intends to make Hong Kong their home for an indefinite period.
Duxbury Calculation

 

 An analytical tool which can assist parties in calculating a lump sum payment, which would produce an income by way of investment, that could be sufficient to meet the spouse’s needs for the rest of their life. The calculation has to take into account factors such as life expectancy, rates of inflation, and return of investments.
Financial Statement (Form E)

 

 An obligatory legal document, which provides a reasonably detailed overview of a party’s financial situation (assets, debts, income, expenses, etc.) and the financial orders that they may be seeking.

 
First Appointment hearing

 

 A mandatory Court hearing in divorce proceedings in which the Court will direct how the parties should proceed with the divorce application, for instance, directions setting down a timetable for the filing of further evidence (Questionnaires/Answers) before the Financial Dispute Resolution Hearing.
Form E Questionnaire A legal document prepared by one party setting out questions or requests for further information from the other party with regard to their financial situation or asking for further information or supporting documents with respect to the information set out in the other spouse’s Form E.
Form H A form to be prepared by each spouse before every hearing in the Family Court which sets out the legal costs incurred up to that hearing and the estimated legal costs thereafter up to and including trial.
Guardian Ad Litem

 

 A person representing a child in proceedings brought by third parties or by the Court.
Guardianship

 

 The individual assuming parental rights and responsibilities for a minor who may also administer any property belonging to a minor or held on trust for a minor.
Habitual Residence An individual is a habitual resident in Hong Kong if he ordinarily resides and returns to Hong Kong after visiting other places.
Hague Convention

 

 The Hague Convention serves to secure the prompt return of children wrongfully removed to or retained in any contracting state, and to ensure that rights of custody and of access under the law of one contracting state are effectively respected in the other contracting states.
Irretrievable breakdown of a marriage

 

 A legal ground for  divorce.
Joint Application for Divorce

 

 An application for divorce brought by both spouses on the basis of living apart for a continuous period of one year or at least one year notice was given to the Court prior to making the divorce application.
Joint Custody Order

 

 Joint custody recognises the responsibility and input that both parents share and have in raising their child by granting custody of the child to both parents. It is also the usual order made by the Family Court.
Judicial Separation

 

 A Court issued decree that recognises the formal separation of a couple, despite remaining married. It is an alternative to a divorce and may be preferred over divorce for religious or moral reasons.
Jurisdiction The legal standing of the Court to make a decision or judgment on a divorce application.
Lump Sum

 

 The payment of a sum of money in one lump sum or by instalments. It is often made as a transfer of capital or as capitalised maintenance from one party to another to achieve a clean break between the pair.
Maintenance (Spousal or Child)

 

 Alimony or  periodical monetary payments which a spouse receives after the conclusion of the  divorce proceedings. This could be for the purposes of their personal and general expenses (spousal maintenance) or for the benefit of the children’s personal and general expenses.
Maintenance Pending Suit

 

 The provision of periodical payments from one spouse to the other until the end of the divorce proceedings to cover the reasonable needs of the receiving spouse. This may include funding a portion (or all) of their legal costs of the divorce proceedings and potentially their cost of litigation against third parties.
Mediation Mediation is a type of alternative dispute resolution in which an independent third party, the mediator, helps the parties to settle their differences and ideally reach a mutually acceptable agreement rather than litigating in Court. Mediation can take place before, during or after (if issues arise in the future), the litigation process and may address a wide range of issues, including finances, arrangements for children, or other issues. Mediation is strongly encouraged in Hong Kong.
Mirror Order An order issued by another Court in a different jurisdiction or country, which contains substantially the same terms as those contained in the original order. A mirror order is commonly obtained to ensure that a foreign Court will enforce the terms contained in the order in that foreign jurisdiction - for example a party may obtain a mirror order in the UK which “mirrors” or has the same terms as those contained in a Hong Kong Court Order. Such an order is normally achieved by the consent of both parties to avoid repetitive proceedings in multiple jurisdictions.
Nominal maintenance

 

 A payment which in practice is never actually made in circumstances where a party to the marriage is not in need of any maintenance at the time of the divorce but wishes to retain the right to apply for the same in the future. The sum is usually a payment of HK$1 per annum.
Nullity A Court decree that a marriage is legally void i.e. there was never a marriage in the first place in the eyes of the law as it is not recognised by the law.
Official Solicitor An independent government officer or an appointed solicitor who represents the child in care and protection proceedings.
One-year separation with Consent One of the legal grounds that a spouse can rely on to show that their marriage has irretrievably broken down. It is a situation where both parties have lived apart for a continuous period of at least one year before submitting a Petition for Divorce and both spouses consent to a divorce.
Periodical payments

 

 Regular payments (fixed by the Court) made by one spouse to another over a period of time (fixed by the Court), perhaps on a  weekly, but more commonly, monthly or an annual basis.
Petition

 

 A legal document to be presented by either spouse to commence divorce proceedings.
Petitioner

 

 The party initiating the divorce with a Petition
Post-nuptial Agreement

 

 An agreement made during a marriage, where the parties are contemplating imminent or future separation, to regulate what will happen with regard to their financial affairs upon divorce.
Pre-nuptial Agreement

 

 An agreement made between spouses before marriage to set out the terms of the financial distribution of assets or the financial support that will be paid to a spouse and the child (if any) if they divorce.

 
Reconciliation

 

 A process by which spouses make attempts to continue their marital relationship.

 
Relocation

 

 An application to the Court to remove a child from Hong Kong permanently to another country.

 
Respondent

 

 The party who did not initiate the divorce and received the Petition
Separation

 

 When spouses live apart, but are not divorced.

 
Social Investigation Report

 

 A report prepared by a social worker acting as “the eyes and ears” of the Court. It provides the Court with background information on the parties, findings from interviews with the parents, the child and the individuals who have regular contact with the child such as school teachers or grandparents, and an assessment of the living environment of the child.
Sole Custody Order

 

 Sole custody is granted to one parent only where circumstances are such that the Court thinks that the other parent is not suitable to have custody of a child.
Substantial Connection An individual is considered to have a substantial connection with Hong Kong if, for example, they have been in Hong Kong for a long time, have a Hong Kong Identity Card, employment in Hong Kong and/or assets in Hong Kong.
Two-year separation without Consent One of the legal grounds that a spouse can rely on to show that their marriage has irretrievably broken down. It is a situation where both parties have lived apart for a continuous period of at least two years immediately before submitting the Petition for Divorce. The other spouse’s consent to a divorce is not required.
Undertaking

 

 A formal promise by a party to the Court or to a counterparty to act in a particular manner or refrain from doing something. A breach of, or omission to comply with, an undertaking is actionable as contempt of Court and may be enforced by committal proceedings (i.e. the party in contempt may be sent to prison by the Court).
Unreasonable behaviour One of the legal grounds that a spouse can rely on to show that their marriage has irretrievably broken down. It is a situation where the Respondent behaves in such a way that the Petitioner cannot be reasonably expected to continue living with them. This is a subjective ground that depends on the individuals involved and what they might consider unreasonable.
Ward of Court

 

 The power of the Hong Kong High Court to take complete and absolute control over the welfare, care and upbringing of a child.

 
Wardship

 

 The type of Court proceedings to be commenced if there are concerns about a child’s welfare. Once initiated, the Court has wide powers to make any Order, including the necessary financial Orders, to safeguard the interests of the child.
Wardship Proceedings

 

 The proceedings initiated to take wardship of a child. It can be commenced irrespective of any divorce or separation proceedings. The commencement of such proceedings will make the child a Ward of Court.
Welfare checklist

 

 A list consisting of important factors for the Court to consider when determining what is in the best interests of the child, including but not limited to the physical, emotional and educational needs of the child, as well as the wishes and feelings of the child.
Welfare principle

 

 The notion that the best interests of the child should be the paramount consideration of the Court.
Without prejudice

 

 The rule which prevents anything said that is of a confidential nature whether it be in a letter or document, to be used as evidence in a Court case.

 
Without prejudice save as to costs

 

 The rule to prevent out of Court settlement negotiations being shown to the Court, except for arguments in relation to legal costs.

 

 

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