Author Archives: Caroline

Round-Up of Divorce News

Spring has arrived and what better way to ring in the Spring season than to summarize some of the few highlights from Divorce news stories circulating the Web.

Gender and Diversity In Divorce

South China Morning Post published a story about a decision by a Court in Beijing, China ruling that a Husband should compensate his Wife for housework she had done over a period of five (5) years.  The penalty? US$7,700.  Whilst there may be some housewives out there that might scoff at the idea that 5 years’ worth of housework was only worth a penalty of US$7,700, it is in fact an interesting ruling as it places a monetary value to chores and housework.

According to the SCMP article, there has been and continues to be a larger debate in China about the role of women who stay at home rather than enter the workforce.  This is the first ruling of its kind in China since a marriage law came into effect on January 1, 2021.  With the new law in place, it will be interesting to see how this plays out and how women (who continue to mostly be in charge of housework in China) will be compensated as they are now entitled to request relief from the Court.

Chasing After The Sun

In a recent Miami Herald article, it was declared that Florida is fertile ground for love such that divorced men are choosing the state of Florida as their primary destination to move to after a divorce.  Could it be that it is perhaps the sun and that sun-kissed glow attracting newly single men to flock to the sunny Florida state?

According to the article published by the Miami Herald, a study by MagnifyMoney confirms that Florida is welcoming nearly 2,581 men in the 12 months after a divorce.  The study states that the real reason men are choosing Florida over other states is due to job opportunities and career advancement along with the lower cost of living offered by Florida as an incentive to move.   Given the current state of affairs around the globe, it also would make sense for individuals to move where space is a luxury, as is outdoor recreation activities.  After Florida, men are choosing California, then North Carolina as their second and third best destination option.

If men are heading to Florida, then where are women heading? According to the study, women opt for Texas, followed by Florida, then Georgia.

Divorce and Daughters

In a new article published by The Economist, there are several studies conducted in America which confirm that having a female first-born does in fact increase the risk of the child’s parents divorcing, particularly in America and the Netherlands.   This study conducted by Jan Kabatek of the University of Melbourne in Australia and David Ribar of Georgia State University in Atlanta, Georgia, USA also states that “daughter-divorce” risk emerges only in a first-born girl’s teenage years.  According to the researchers, the primary reason behind the “daughter-divorce” risk is based upon the fact that parents quarrel more over the upbringing of teenager daughters versus teenage sons.

Covid-19, Depression and Divorce

In unsurprising news, the BBC reports that due to the Covid-19 pandemic, there has been a rise in depression and stress among parents resulting in fears, worry and anxiety.  This has led to frequent arguments among couples, thus placing additional stress on the relationship and opening the door to couples considering separation and divorce.  Demands faced by parents are becoming increasingly stressful as parents not only are dealing with Covid-19 related fears, but the resulting effects of Covid-19 including lockdowns, home schooling mixed in with the pressures of work commitments.

According to the report, Oxford researchers are now tracking both children and parents’ mental health throughout this crisis.

Those are some of the more interesting stories hitting the web.  Stay tuned for additional summaries of interesting stories circulating the web related to divorce.

 

 

Delays In The Hong Kong Family Court Making It Difficult For Divorcing Parties To Move On

The number of people seeking divorce in Hong Kong is increasing. Figures released by the Hong Kong government in 2018 showed that the number of divorce decrees granted in 2016 (17,196) almost tripled that in 1991 (6,295). Such trends have been observed in various other countries such as the USA and the UK.

Year Divorce decrees granted in Hong Kong
1991 6,295
1996 9,473
2001 13,425
2002 12,943
2003 13,829
2004 15,604
2005 14,873
2006 17,424
2007 18,403
2008 17,771
2009 17,002
2010 18,167
2011 19,597
2012 21,125
2013 22,271
2014 20,019
2015 20,075
2016 17,196

‘Marriage and Divorce Trends in Hong Kong, 1991 to 2016’, Census and Statistics Department, HKSAR

Moreover, between 2017 to 2019, the number of family cases initiated in the Family Court has consistently surpassed 15,000 every year. As of November 2020, over 10,000 divorce petitions have been filed to the Family Court. While these figures for 2020 may seem low compared to previous years, this is likely due to the closure of the Family Court as a result of the COVID-19 outbreak which meant that for a period of time, divorce petitions could not be filed while the registries were closed.

  Matrimonial Causes cases in District Court
2017 17,006
2018 16,458
2019 15,393

There are currently 11 Family Court Judges in the District Court in Hong Kong and only a handful of High Court Judges in Hong Kong that deal with family matters. With the number of people petitioning for divorce reaching over 15,000 every year, the courts are being flooded with cases which has caused delays in getting hearings. For instance, for a 2-day hearing to be set down in the Family Court, it is estimated that it would take around 6 months. Likewise, it could take between 4 to 5 months for the Family Court to give judgment. All of this means that some parties are having to wait over a year before their cases are heard and resolved which only serves to prolong the stress divorcing parties have to endure.

As a result of the COVID-19 pandemic, the Hong Kong Family Courts were closed for 3 months from 29th January 2020 to 3rd May 2020 (except for urgent or essential hearings). After resuming court business for 2 months, the Hong Kong Family Courts closed yet again for 2 days from 20th July 2020 to 21st July 2020 as Hong Kong experienced its 3rd wave of COVID-19 cases. The extended closure of the Hong Kong Family Courts has only served to increase the backlog of cases the Hong Kong Family Courts have to deal with.

Further, where there are significant differences between the parties and the proceedings are hotly contested, ‘satellite’ litigation can arise where the parties make various applications on matters such as further disclosure of financial assets or where should the handover of children be for access. These extra applications have added to the burden on the Hong Kong Family Court system causing further delay. The UK Family Courts have also been experiencing a similar problem and it was reported in the Times that a judge had warned that separated parents were overwhelming courts with demands to micro-manage their lives.[1] In particular, it was reported that requests were made for the UK Family Court to deal with matters such as: “i) At which junction of the M4 should a child be handed over for contact? ii) Which parent should hold the children’s passports (in a case where there was no suggestion that either parent would detain the children outside the jurisdiction)? iii) How should contact be arranged to take place on a Sunday afternoon?”. While orders from the Courts may provide a solution for the parties, many cases could have been avoided if the parties had lawyers to negotiate these minor issues out of the courtroom.

The Hong Kong Family Court has been trying its best to deal with the backlog of cases, which includes dealing with some hearings by way of paper disposal without needing the parties to attend Court and counsel to make oral submissions. Further, the Court has been expanding the use of video-conferencing facilities (“VCF”) in family cases in response to the COVID-19 outbreak and setting up email addresses for judges so that parties can send documents to the Court. However, an area which the Family Court is still lagging behind is the electronic filing (“e-filing”) of Court documents. Other countries such as Singapore have already been using e-filing since 2000. E-filing would be a positive step towards modernizing the Hong Kong Family Court. It would also help to save time and improve the efficiency of the Courts which is badly needed in the present times with the COVID-19 outbreak and the inevitable delays in the Court system.

Divorce can be a very stressful process which can have a negative impact on the parties physical and mental health. The prolonged wait for cases to be heard in the Hong Kong Family Court compounded by the delays arising from COVID have made it even harder for divorcing parties to move on with their lives.  A family law solicitor can help guide you through the process. Alternatively, consider engaging in mediation to resolve disagreements out of Court which can save a lot of time and costs.

[1] https://www.thetimes.co.uk/article/courts-clogged-by-warring-parents-trivial-disputes-kfkntpgxh?shareToken=a0e62682d3a528261a84f832f828c511

What Happens to Child Maintenance and Access if One Parent Leaves the Country?

Hong Kong is a cosmopolitan city with people from all over the world. Over the years, many expats have chosen to settle down and start a family in the city. When relationships breakdown and parents separate, this can have a huge impact on the family dynamic. This is even more so when one parent chooses to relocate overseas either to return to his/her home country, for work opportunities or because of a new partner.

What happens to access arrangements when a parent relocates?

Upon divorce, orders will be made by the Hong Kong Court regarding child maintenance and access arrangements. Generally, the parent who does not have day-to-day care of the child (the ‘paying parent’) will have to pay child maintenance to the parent who does (the ‘receiving parent’). When separated parents continue to live in the same city, access with the child can be arranged fairly easily. However, this will be complicated if the paying parent relocates while the receiving parent and child continue to remain in Hong Kong.

Once the paying parent moves to a different country, it will be more difficult for the paying parent to maintain contact with the child and the paying parent’s access with the child will inevitably decrease. Flying back on forth between countries frequently to see the child may not be economically viable especially if the paying parent has moved very far such as to the United Kingdom or Canada. While social media and online modes of communication such as WhatsApp and Skype have made it easier for families to stay connected, the time difference may make it difficult to arrange a mutually agreeable time that fits into the child’s school schedule especially as the child grows older and has more extracurricular activities. Ideally, both parents should be able to agree to the relocation and access arrangements so they can be adjusted to accommodate the move.

Enforcement of child maintenance if the paying parent relocates and stops paying maintenance

The paying parent still has a duty to maintain their child regardless of how much time they get to spend with the child or what country they live in. However, if the paying parent stops paying maintenance after relocating, the receiving parent may encounter very real difficulties in trying to enforce an existing child maintenance order. The receiving parent will have to go to the Hong Kong Court to try to take enforcement action. The enforcement of Hong Kong maintenance orders overseas is governed by the Maintenance Orders (Reciprocal Enforcement) Ordinance. Whether a child maintenance order made in Hong Kong can be enforced overseas will depend on the country which the paying parent has moved to and whether it is a reciprocating country. Currently, only 15 countries and places are designated as reciprocating countries:-

1. United Kingdom 9. Brunei
2. Bermuda 10. Malaysia
3. Manitoba, Canada 11. New Zealand
4. Saskatchewan, Canada 12. Singapore
5. Ontario, Canada 13. Solomon Islands
6. Isle of Man 14. South Africa
7. Australia 15. Sri Lanka
8. British Columbia, Canada

If the paying parent has moved to any of the above reciprocating countries, the receiving parent can apply in the Hong Kong Family Court for the child maintenance order to be sent to that country for enforcement.

Parents cannot enforce an arrangement made informally between them, it must be made an order of the court first. Moreover, the receiving parent will need to provide the overseas address at which the paying parent can be found. Enforcement can be further complicated if the paying parent moves to another country with the intention to avoid having to pay child maintenance and the receiving parent does not know where the paying parent is living.

Enforcement of maintenance orders overseas can be complicated. If you are seeking to enforce a maintenance order overseas, it is important to seek legal advice from a family lawyer.

Custody and Access of Children of Unmarried Parents

After the breakdown of a relationship, matters of child custody and access can become a thorny issue for the parties involved. This is equally the case whether the parents are married or unmarried.

What are the rights of unmarried fathers?

Some unmarried fathers may believe that they automatically have the same rights and authority as the mother. While this may be the case for married fathers, it is not so straightforward for unmarried fathers. Under the Guardianship of Minors Ordinance, where a child is born out of wedlock, only the mother has automatic parental rights and authority. An unmarried father will have to apply to the Hong Kong Court for an order that he shall have some or all of the parental rights in respect of the child.

But what does it mean to have parental rights? Generally speaking, the rights and authority of a parent includes:-

  • the right to live with the child and control the child’s day-to-day upbringing;
  • the right to the physical “possession” and “services” of the child;
  • the right to choose the child’s education;
  • the right to choose the child’s religion;
  • the right to choose the child’s surname;
  • the right to inflict moderate punishment on the child;
  • the right to consent to medical treatment for the child;
  • certain rights to enter into contracts on the child’s behalf;
  • the right to act for the child in legal proceedings;
  • the right to administer the child’s property;
  • the right to appoint a testamentary guardian for the child;
  • the right to consent to an application for a passport for the child;
  • the right to arrange for the child to leave or emigrate from the jurisdiction;
  • the right to consent to the child’s marriage;
  • the right to consent to the child’s adoption.

In practice, it is prudent for the unmarried father to register his name on the child’s birth certificate which may help in resolving any disputes in the future.

When deciding on whether to grant an order that an unmarried father shall have some or all of the parental rights in respect of the child, the Court will consider the following factors:-

  • the degree of commitment which the father has shown towards the child;
  • the degree of attachment which exists between the father and the child; and
  • the reasons of the father for applying for the order.

Custody and access arrangements for children of unmarried parents

It is ideal for unmarried parents to come to an agreement in relation to the arrangements for their child to avoid the stress and cost of having to go to Court. However, where the separation is acrimonious or where there are disagreements over matters such as what school the child shall attend, where the child will live, when the child shall have access with the father, these matters can be brought to the Court to be resolved.

As is the case with married parents, the best interests of the child is the first and paramount consideration of the Court when deciding on custody and access arrangements.  The Courts tend to favour joint custody orders as being in the best interests of the child in order to recognise the joint involvement of both parents in the major decisions relating to the child. The exception to this would be where there is very high conflict between the parents and they are unable to communicate or cooperate each other, in which case an order for sole custody may be more appropriate.

For young children of unmarried parents, it is generally ideal for the child to have the stability of living with one parent (usually the mother) on a day-to-day basis and have regular and structured access with the father. This can be organised in numerous ways. For instance, the unmarried father may wish to have evening access with the child on weekdays after school to enable him to have dinner with the child and continued involvement in the child’s studies and homework. Access on weekends may also be considered to let the unmarried father have quality time with the child and to take the child out for fun activities such as the cinema, theme parks and the beach. The unmarried father may also be allowed to have telephone calls with the child. For holidays, it is usually considered fair to allow an unmarried father to have some access during the holidays and for the father to take the child overseas for trips, if appropriate. The appropriate arrangements, however, will vary depending on the age of the child and the suitable arrangements for a baby or toddler will be very different from a teenager.

It should be noted that any order in relation to custody or access will not be enforceable if the parties are living together and an order will cease to have effect if the unmarried parents continue to reside together for more than 3 months after the order is made.

For more information about the financial obligations of unmarried parents for children after separation, please see our previous article on the topic.

Unmarried Parents and Child Maintenance

An increasing number of individuals in Hong Kong are choosing not to get married. For unmarried couples who have children, many are unaware of their legal rights for financial support should the unmarried couple split. Indeed, the financial obligations of unmarried parents after separation are not as clear cut and certainly not the same as married couples.

 

When unmarried couples separate, they are not entitled to claim for maintenance for themselves from their ex-partner. An unmarried parent may find him or herself without accommodation or adequate funds to maintain the same standard of living he or she enjoyed while together. The only form of financial support an unmarried parent can obtain is child maintenance under the Guardianship of Minors Ordinance.

What financial support can an unmarried parent claim for the benefit of the child?

It is always desirable for unmarried parents to try and reach an agreement on how to support their child upon separation. However, if an agreement cannot be reached, an unmarried parent may apply to the court for the following forms of financial support for the benefit of the child:-

  • Lump sum payment for the immediate and non-recurring needs of the child or for any liabilities or expenses previously incurred in relation to the child
  • This can cover the one-off needs of the child within the immediate future such as medical treatment, school uniforms and equipment.
  • Maintenance payments
  • Secured maintenance payments
  • Transfer of property
  • Settlement of property

In determining the amount to be paid for the benefit of the child, the court will consider what is reasonable, bearing in mind the paying parent’s financial situation. The Court will not force the paying parent to pay an amount he/she cannot afford. Moreover, when deciding what orders should be made, the court will have to keep in mind what is in best interests of the child.

How is child maintenance calculated for unmarried parents?

An unmarried parent can claim child maintenance to meet the reasonable needs of the child until the child reaches 18 or finishes full-time education. The child maintenance can cover expenses for the child’s normal activities and necessities such as food, clothes, medical/dental expenses, school fees, tuition/extracurricular activities, school buses and entertainment/presents. It can also cover the costs of hiring a domestic helper. The paying parent is usually required to pay the education expenses including tuition fees and school bus fees directly.

Crucially, the unmarried parent can seek child maintenance to cover rental which more often than not is the largest expense an unmarried parent will incur particularly in Hong Kong where property prices can reach unaffordable levels. However, all of this has to be within the means of the paying parent taking into account how much he/she earns per month and his/her personal monthly expenses.

In determining what amount of child maintenance is reasonable, the court will also consider the standard of living of the paying parent such as the size of his/her flat, whether he/she was a member of any clubs and how often he/she travelled. For instance, if the paying parent enjoys a comfortable standard of living, eating at good restaurants and going on frequent holidays overseas, the court will not expect the child to live on a shoestring budget.

An unmarried parent may also claim a ‘carer’s allowance’ to support him or herself in raising the child.  This ‘carer’s allowance’ will cover the unmarried parent’s basic needs when looking after the child, in particular, when it limits his/her ability to work, and would increase the total amount of child maintenance payable to him/her. It can cover the expenses incurred to maintain the home such as utilities and other general household expenses. However, this allowance is usually a lot less than the maintenance a married parent would receive and the Court will take into account whether the unmarried parent can start working part-time or gradually return to full time work as the child grows older.

For many, the rights of an unmarried parent for financial support of children are not well understood. If you are considering making a claim for child maintenance as an unmarried parent it is important to seek legal advice from a family law professional.