Author Archives: Caroline

Navigating The Holidays With A Child Custody Order

If you’re in the midst of a divorce, holiday preparations with children can be that much more stressful as you are now navigating the holidays as a co-parent where holidays need to be shared and managed accordingly.

Fortunately, there are ways to alleviate some of the stress related to the holiday season.  Generally speaking, organization ahead of the holiday season is key and it will ease some of the stress related to the children. It’s particularly beneficial if you’re able to communicate clearly and openly with your ex-spouse. Here are some things to consider as you prepare for the holidays with your children while navigating divorce proceedings:

  1. Solidify Holiday Plans: Organization is key when preparing for the holidays.  In Hong Kong, it is normal practice for families to be constantly on the move.  Hong Kong is situated such that it is easy for families to fly to various locations around the world with ease.  It is especially important for you to communicate and agree on your holiday plans with the co-parent as far in advance as possible so that there is no miscommunication or room for issues to suddenly arise shortly before you’re about to embark on your holidays with the children.  If your relationship with your ex-spouse is difficult and you have been embroiled or continue to be embroiled in divorce litigation, it may be a good idea to print out and review the relevant orders and/or emails/letters detailing the agreement reached between you and your ex-spouse so there is no confusion for the arrangement of holidays.
  2. Prepare A Detailed Itinerary: If it makes it easier, write out a detailed schedule or itinerary and provide the same to the other parent, including what activities the children will be engaged in, who the children will come into contact with, emergency details such as hotel information, important phone numbers and flight details.
  3. Talk To Your Solicitor: Before planning your holiday, consult your solicitor to ensure that all the necessary paperwork is in place, including the appropriate custody and holiday orders. Reviewing these orders and asking any questions you have about what they mean or their practical effect is a good idea so that you fully understand the parameters of any custody, child sharing and holiday orders.  If there are certain issues that still need to be addressed ahead of the holidays, your solicitor can assist you by initiating dialogue with your ex-spouse and his/her solicitors.  It can be beneficial to discuss these matters with your solicitor sooner rather than later, and it’s important to plan and meet with your solicitor well in advance of any upcoming holidays if needed.  Last minute issues are not welcome especially when you and your children may have already made plans and want the enjoyment of a holiday to start as soon as possible.
  4. Sort Out Immigration Issues: Travelling in and out of Hong Kong is relatively easy.  However, when there are certain custody orders in place, it is important to speak to your solicitor and have them send the appropriate paperwork to the Hong Kong Immigration Department to ensure that you will not be prevented from leaving Hong Kong with your children.  Just in case, remember to always take all relevant paperwork with you, including any custody orders, in the unlikely event Hong Kong immigration asks questions and needs to see the appropriate orders to allow you to take your children out of Hong Kong.
  5. Have Fun!: Remember that you’re on holiday and the focus should be enjoying your time with your family.  Make it fun!  Organize activities that your children will enjoy.  Try and drown out the stresses of daily life and focus on the here and now.  While it may be difficult to do so when you’re dealing with a difficult spouse or are still embroiled in a litigious divorce, try and unplug and focus on the fact that you are with your children and loved ones and that should in itself be cherished and celebrated.

Overall, remember to focus on the future and look forward new adventures with fresh eyes, full of new possibilities.  Yes, a new norm has to be adapted to, but the more you focus on the future and all the good things to come, the more settled you and your family will be in time.

The Difficulties With Surrogacy In Hong Kong

What Is Surrogacy?

Surrogacy is assisted reproduction that heterosexual or same sex couples may turn to in order to help them start a family. This is typically done by asking a surrogate mother to give birth to a baby on their behalf. Depending on the type of surrogacy that is chosen by the family, the child can be genetically linked to at least one of the commissioning parents.

Is Surrogacy Legal In Hong Kong?

While surrogacy is permitted in Hong Kong, it is heavily regulated. A surrogacy agreement is usually entered into between the commissioning parents and the surrogate mother to agree on the surrogacy arrangement such as surrogacy fees, medical expenses and perhaps even more importantly, the legal parentage of the child i.e. who are the legal parents of the child. However, such agreements are not recognised by the Hong Kong Courts and are unenforceable. Therefore, problems with the surrogacy arrangement could arise if the relationship between the commissioning parents and the surrogate mother turns bad.

The situation is made worse by the fact that the Hong Kong Courts criminalise the commercial aspect of surrogacy whereby it is forbidden for the surrogate mother to receive any payment for her services and/or for an agent to receive any payment for finding a surrogate mother for hopeful parents. Such restrictions are applicable regardless of whether the payment is made or received in Hong Kong or elsewhere. In reality, it is difficult to find a potential surrogate mother and secure her services without any payment. As such, commissioning parents could find themselves criminally liable simply because they are having a child through commercial surrogacy.

Legal Parentage Of The Child

Hong Kong Courts regard the surrogate mother to be the legal mother of the child, regardless of whether the process took place in Hong Kong or elsewhere. The situation with the child’s father parentage is more complicated. If the surrogate mother was married at the time of fertilisation,  her husband will be considered the legal father of the child unless he did not consent to his wife becoming a surrogate mother at the time. If the surrogate mother was not married at the time, the male partner who attended the surrogacy treatment services with her will be considered the legal father.

Parental Order

Upon the child’s birth, the surrogate mother and her husband or male partner will become the legal parents of the child. As such, the commissioning parents are required to apply to the Hong Kong Courts for a Parental Order which confirms that they are the legal parents of the child instead.

The following are the conditions that the commissioning parents have to meet in order for the Court to grant a Parental Order:

  1. The gametes of either or both of the commissioning parents were used in the creation of the embryo;
  2. The application for a Parental Order was made within 6 months of the birth of the child;
  3. The child’s home must be with either or both of the commissioning parents at the time of making an application for a Parental Order;
  4. Either or both of the commissioning parents must be:
    • Domiciled in Hong Kong (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);
    • Has or have been a habitually resident of Hong Kong for 1 year prior to the application (an individual is a habitual resident of Hong Kong if he ordinarily resides and returns to Hong Kong after visiting other places); or
    • Has or have substantial connection with Hong Kong (substantial connection are all the personal factors of the husband or wife which connect him or her to Hong Kong).
  5. The commissioning parents must be at least 18 years of age when the Court grants the       Parental Order;
  6. The surrogate mother and father must be shown to fully understand the effect of the Order and freely and unconditionally agree to the grant of the Order by the Court. The surrogate mother’s unconditional agreement shall not be valid if it is given by her less than 6 weeks after the birth of the child; and
  7. There shall not be any exchange of monetary benefits or other kinds of benefits, except expenses reasonably incurred, for the surrogate parents’ agreements in subparagraph 6 and for making the Parental Order.

In light of the fact that Hong Kong does not recognise surrogacy agreements, the Court maintains control over the legal parentage of a child.  Any potential commissioning parents should be well aware of the criminality of commercial surrogacy when securing the services of a surrogate mother and the hurdles for securing legal parentage of a child in Hong Kong.

Choosing The Right Lawyer To Represent You

How To Look For The Right Lawyer To Represent You In Divorce Proceedings?

When you decide that your relationship is no longer working and a divorce is the right course to take, the first question that arises is “Do I need a lawyer” and “How do I look for the right lawyer to represent me?” Choosing the right lawyer is essential, so it is crucial that proper consideration is given on whether a lawyer is needed and if so, who to choose! Some will decide that they can handle the divorce process by themselves, others will hire a lawyer to assist with mediation and/or divorce proceedings.

There are many options. When considering who to choose as your lawyer, you should consider the following:

Do Research:  Ask your family and/or friends to see if they have any lawyer contacts who they trust and can recommend. You may also go online to the Hong Kong Law Society’s Website for a list of law firms that practice matrimonial law. You might want to narrow your options down to a couple of law firms to choose from and have a look online to see if there are any reviews or articles written on the firm or the lawyer to give you feedback on their quality or capabilities.

Ask Questions: It is important to ask questions and don’t be shy in asking them. The kind of questions you should be asking your potential lawyer are “What type of matrimonial cases have you worked on?”, “Have you worked on divorce cases before?”, “What approach should we take in our case?” “Do you have any associates or trainee solicitors to assist you with the work or should I expect the work to be done mainly by you?” It is important to ask these questions in your initial meeting because it will help you see if the personalities are a match to work together. The last thing you want is to fight with your lawyer as well as your spouse in a lengthy divorce, and the lawyer that you choose should be someone that you feel you can confidently trust to handle your case in the best way possible.

Fees: There are some matrimonial law firms that charge on an hourly basis and others may charge on a fixed fee basis. The fee structure of a firm do not necessarily reflect the quality of their legal advice; different firms can have different charging policies. Fees may become a concern if your divorce is contested and/or involves complicated legal issues. Thus, it is important to be aware of the range of costs that you are obliged to pay and if it is feasible for you. Usually, the initial retainer fees will only get you so far in a divorce and you will be required to pay additional charges going forward.

Consider Alternative Representation:  Lastly, there is the possibility that you may wish to change your legal representation partway through your divorce proceedings. This could be for a number of reasons. Perhaps you may prefer to use someone else as you feel you could get more value for money or you feel more comfortable working with them. It is not unusual to change your lawyer in a divorce, so don’t shy away from doing so. You may be hesitant to change your lawyer as you have spent so much time and money on them, but you will more likely to save more money and be able to get the results you wanted with the lawyer that you want to work with, rather than continuing with representation who you may have lost faith in, or whom you no longer wish to represent you.

You may feel that choosing the right lawyer is already such a difficult task, not to say that divorce proceedings haven’t even started yet. This article is intended to be a guide for you to make the decision. Ultimately, you should use the lawyer with whom you feel most comfortable working with and we would be more than happy to recommend a list of qualified matrimonial lawyers in Hong Kong. Please email us at info@hongkongdivorce.com.

Jurisdiction And Divorcing In Hong Kong

Can I Get Divorced In Hong Kong?

With the rising trend of Hong Kong couples getting married abroad and a steady flow of expatriate couples coming to work in the city, it is not surprising that couples married outside of Hong Kong are faced with the question of whether they can get divorced in Hong Kong if the relationships fails.

Hong Kong Court recognises foreign marriages as long as the marriage was valid under the law in force at the time of the marriage in the foreign jurisdiction. This means that foreign marriages have the same legal standing as marriages in Hong Kong.

Before the Hong Kong Family Court considers a divorce application, the husband or wife must prove to the Court that either individual:

      1. is domiciled in Hong Kong- 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;

      2. has been a habitual resident in Hong Kong for 3 years prior to the divorce application- an individual is a habitual resident in Hong Kong if he ordinarily resides and returns to Hong Kong after visiting other places; or

      3. has substantial connection with Hong Kong- substantial connection are all the personal factors of the husband or wife which connect him or her to Hong Kong.

Individuals need to rely on their background to prove to the Court that they satisfy one of the three factors above. For example, the length of time they have been in Hong Kong, whether they have a Hong Kong Identity Card, employment in Hong Kong or assets in Hong Kong. The Court will consider, on a case by case basis, the background of the parties and decide whether it has the jurisdiction to consider the divorce application. If the Court rules that it has no jurisdiction to entertain the divorce application, the parties cannot get divorced in Hong Kong.

Can I Get Divorced In Hong Kong If I Have Assets Outside Of Hong Kong?

The Court will consider the assets of both individuals and whether they are located in Hong Kong or overseas. The fact that either individual has assets outside of Hong Kong does not prevent the Hong Kong Family Court from entertaining a divorce application or making Financial Orders in relation to overseas assets.

Would A Hong Kong Family Court Order Be Enforceable Outside Of Hong Kong?

Orders granted by the Hong Kong Family Court are enforceable in some jurisdictions outside of Hong Kong. However, due to the rise of cross border marriages between Hong Kong and Mainland Chinese residents, the governments of both jurisdictions are passing laws to widen the range of Matrimonial Orders enforceable in both jurisdictions.

Given the hurdles for a divorce application and in enforcing a Hong Kong Matrimonial Order overseas, it would be wise to seek legal advice from a solicitor early on to know your position in obtaining a divorce in Hong Kong.

 

Children Issues In A Divorce

How Are Children Matters Dealt With In The Family Courts?

The Hong Kong Family Courts have the jurisdiction to make Custody, Access and/or Maintenance Orders in relation to children i.e. those aged under 18. Generally speaking, children are not required to have separate legal representation, unless the Court considers it appropriate to do so.

What Is A Custody Order?

A Custody Order is a court order which relates to the child. In such type of Order, the court will make an order on three aspects, namely:

  1. Custody;
  2. Care and control; and
  3. Access of the child.

Custody may come in two forms – sole custody and joint custody. The former means that only one of the parents has custody over the child and the latter means that both parents have custody over the child. Having custody over a child means that the custodian parent can make all the important decisions affecting the child such as his/her education and religion. It is important to note that if a parent has sole custody over a child, the other parent can still have a say in key issues related to the child such as choice of school and/or religion. Generally, the Family Court tends to grant a Joint Custody Order as the Court recognises the importance of having both parents involved in the upbringing of the child. This is so unless it is clear to the Court that a Joint Custody Order will not work in the circumstances, perhaps because the parties are unable to communicate, or the situation remains too acrimonious.

Care and control of a child is typically granted to the custodial parent. Having care and control means that the custodial parent has the right to make decisions over the child’s daily matters, such as what they wear on a daily basis or the foods that they eat,.

What Is An Access Order?

An Access Order is usually granted to the non-custodial parent and allows the parent  without care and control to visit the child. For example, the Court can grant one of the following three types of Access Orders:-

  1. Reasonable Access Order;
  2. Defined Access Order; or
  3. Supervised Access Order.

A common access order is Reasonable Access, which means that the parents are left to make arrangements as to how and when access will take place between themselves. If an agreement cannot be reached or if any problem with access arises subsequently, the Court may vary the Order to a Defined Access Order which specifies when, where and how access will occur. If there are difficulties over access, the Court may also grant Supervised Access, which means that access can only take place with the supervision of an independent third party who is responsible to supervise the access time.

Children’s’ Financial Matters

In a divorce suit, the Court may make a Financial Order for periodical payment or lump sum payment for the benefit of the child.

A lump sum payment is ordered to achieve a clean break and may be ordered to be paid as one lump sum or by instalments. The Court in considering whether to grant an Order will consider the circumstances of the case and the following non-exhaustive list of factors:

  1. the financial needs of the child;
  2. the earning capacity and assets of the child;
  3. the physical and mental condition of the child,
  4. the standard of living of the family prior to divorce; and
  5. the education the child was receiving and expected to receive.

The Financial Order shall only take effect upon the grant of the Divorce Decree Absolute, the final Court Order which officially dissolves a marriage.

In addition to the above, another type of Financial Order called Maintenance Pending Suit can also be applied for in the best interests of the child. The Court, in awarding Maintenance Pending Suit, will order one of the parties to the divorce to make periodical payments to the other for his or her maintenance for the duration of the divorce proceedings.  The Court will consider the reasonable needs of the child and the ability of the husband or wife to pay without conducting a detailed investigation. This type of Order can take effect from the date of the presentation of the Divorce Petition until the Divorce Decree Absolute.

Divorce, when it involves children, will add layers of complexity to the divorce procedure. Thus, in order to safeguard custody your rights and your children’s rights, be sure to consult your solicitor and ask questions!