Author Archives: Caroline

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.

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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.

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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.

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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.

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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.

 

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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

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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.

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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.

Pet Custody and Crafting Pet Parenting Plans

In this modern world, there is a growing trend of couples choosing not to have children.  This is especially the case when individuals are more inclined to focus on careers and other responsibilities.  For those couples who still wish however, to add to their family unit, there may be an inclination to add furry friends to the family nucleus.  As more households include pets, it is no surprise that pets can and do become a central focus when couples split in their divorce proceedings.  So, who gets the pets in a divorce? What can courts do when “dividing” a pet in matrimonial proceedings and what part should you play in resolving this dispute regarding your family pet?

Legally, pets are not afforded the same rights as a child and whilst you may consider your pet to be your child, the courts will not see it that way.  Instead the court will look at pets as property and so, since pets are considered property, there is no “custody” issue to be resolved.   This does not mean you and your ex-spouse need not be creative when resolving disputes related to your pet.

Here are some things to consider:

Brainstorm a pet parenting plan: There is no limit to creativity when it comes to the idea of crafting a pet parenting plan. Brainstorm a pet parenting plan that allows you and your ex-spouse to have regular visitation with your family pet. Similar to a child custody and visitation agreement, you and your ex-spouse can agree on who pays for vet bills, who is responsible for visitation travel, and the date and time for regular visitation. Ask your solicitor to assist in formalizing a contract to crystalize the pet parenting plan that you and your ex-spouse have agreed to. It is important to remember that the courts have no power to make orders regarding pet custody since pets are considered “property.” The same custody rights that children are afforded are not the same with your pet.

When brainstorming a pet parenting plan, it is important that both you and your ex-spouse be mindful and sensitive towards the needs of a pet.  You may want to discuss with your ex-spouse the time each of you spend with the pet, as the pet will certainly be bonded to one individual over the other.  Who has more time to spend time with the family pet on a daily basis? Who travels frequently? Who takes the family pet to the vet and to pet playdates? Who has care and control of the children and does this affect a pet parenting plan as the children may be closely bonded to the family pet?  These are all important considerations to be mindful of when brainstorming a pet parenting plan.

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Pet Timeshare/Visitation Schedule: Similar to a child sharing plan, a pet parenting plan can outline the visitation times you and your ex-spouse will share your beloved pet. You and your ex-spouse can be creative in how you want to divide time with your pet, as long as you both agree to a suitable timeshare. Need some ideas?  How about:

  • Every other weekend and one night a week
  • One week on, one week off
  • 2-2-5-5 schedule: Parent 1 has the pet for two days. Parent 2 has the pet for the following two days. Parent 1 has the pet for the next five days. Parent 2 has the pet for the next five days and so on.

The above pet parenting schedules are just a few examples of how pet parenting can be divvied up between you and your ex-spouse. But ultimately, a pet parenting schedule should be crafted so it is tailored to what works for you and your ex-spouse. You both may also want to consider pet timeshare during major holidays, which can also include Mother’s Day, Father’s Day, pet birthdays and long-weekends. What happens if your ex-spouse wants to move away to another city? Have an open discussion with your ex-spouse about who will get primary custody of the pet and consider allowing the other pet parent to have time with the pet for the entire summer. If your pet is involved in extra-curricular activities, the party that is responsible to take the pet to these activities should be memorialized in your agreement. These days, there are so many activities that pets can become involved in, including pet play dates with other pets and their owners or even “Yappy Hours” that allow pet parents to meet, mingle and drink with other pet parents and their pets.  In the USA, they even have “Hoppy Hour” for those who are bunny parents and where bunnies can mingle and play including agility classes where bunnies learn to hop over obstacles and compete in races!  Be creative, it is up to you both as dedicated pet parents!

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Shared Costs For Your Pet: Another issue you and your ex-spouse may want to weave into your pet parenting plan is how costs will be shared between the two of you. Having a pet is expensive. There are vet bills to consider, in addition to costs for food, maintenance and grooming. If you have a dog, there may be dog walkers and doggy daycare costs to be considered too. There will also be transportation costs to calculate into the equation when you and your ex-spouse have to transport your pet to and fro from each household.

Assign The Ultimate Decision-Maker: Generally, when parents fight for child custody in Hong Kong in a divorce, one (sole) or both parents (jointly) will be assigned custody over the child, with one parent having care and control and the other parent access. Although pets are not treated with the same legal considerations as a child, this is something that you may want to discuss and consider when sharing a pet with your ex-spouse. For example, who will be the ultimate decision maker when your pet becomes ill?  Who will make decisions related to your pet’s death, burial and costs associated with your pet’s death? These are all things you definitely should consider if you and ex-spouse are committed to sharing your pet after a divorce.

Finally, here a few more things to consider when crafting a pet parenting plan which focuses on the mental health of both yourself and your pet!

Talk to a Solicitor, Talk to Your Veterinarian: Pet custody is a real issue, especially now that pets are no longer considered just “pets” but are quickly becoming valuable members of a family. In the event that you establish a pet parenting plan, you may also want to consider consulting with your veterinarian so he or she can give you tips on how to make the transition easier for your pet now that your furry four-legged friend is being shuttled between two households. Like children, pets undoubtedly require a level of consistency between two households.

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Consider Talking To A Therapist: In the event your ex-spouse has “custody” of your pet, you may want to consider speaking with a therapist. In a divorce, there is truly a sense of loss and a grieving process that each member of the family must go through.  The grieving process may be magnified if you no longer have access to the family pet especially if a close bond was established with the pet during the marriage.  It is for this reason why brainstorming a pet parenting plan may be something to consider, especially if it helps lessen the sense of loss you may feel and experience during the divorce process. 

Remember to be creative when drafting a pet parenting plan.  Like children, focus on what is in the best interests of your pet!

Domestic Violence in Turbulent Times

The United Nations recently urged action to combat the worldwide surge in domestic violence due to Covid-19 as many victims are now trapped in the same household as their perpetrators.  According to The New York Times, domestic violence hotlines are lighting up with abuse reports and the safety of victims are at the forefront of this crisis and many health specialists state that it is no surprise that domestic violence cases rise when families are forced to spend more time together.

So, what can victims do when they are being terrorized at home during lockdown or when social distancing measures are in place and home is meant to be a “safe zone”?

First and foremost, it is important that victims feel safe enough to reach out to family and friends – finding a way to safely ask for help is the first step.  A second step is to be able to remove oneself from the very space that causes anxiety, fear, intimidation and violence.  Given the dynamics of the current global crisis with Covid-19, many families, friends, organizations and health specialists are providing additional services/assistance to those in need, including private chat groups to alert others you are in need of help.

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In Hong Kong, social organizations are also on-hand and available to assist domestic violence victims including Harmony House which has a separate women, men and children hotline or the Social Welfare Department of Hong Kong which provides victim support for family violence.

For your reference, here are the linked websites for Harmony House and the Social Welfare Department of Hong Kong.

  1. Harmony House: https://www.harmonyhousehk.org/eng
  2. Social Welfare Department of Hong Kong: https://www.swd.gov.hk/en/index/site_pubsvc/page_family/sub_listofserv/id_VSPforVFV/

Domestic violence victims can also seek assistance through the Family Court in Hong Kong and are eligible for protection under the Domestic and Cohabitation Relationships Ordinance (Cap. 189).  Under this Ordinance, a victim can apply for an injunction order.

When you apply for an injunction order, you can ask the Court to:

  1. Stop the offender from using violence or threat of violence against you or a child living with you; or
  2. Exclude the offender from the matrimonial home regardless of ownership of the property and to prevent the offender from entering into the home.

These requests can be made by way of:

  1. Non-molestation Order: asking the Family Court to restrain the offender from molesting you or restraining the offender from molesting your child. In Hong Kong, molestation is interpreted to cover use or threat of violence which can be widely interpreted by the Court.
  2. Ouster Order: asking the Family Court to prohibit the offender from entering or remaining in the home, a specified part of the home or specified area whether or not you live in that area
  3. Re-entry Order: asking the Family Court to permit you to enter and remain in the home or a specified part, or permit your child to enter and remain in the home.
  4. Participation in a Programme Order: asking the Family Court to order that the offender participate in a Programme approved by and arranged by the Director of Social Welfare aimed at changing the attitude and behaviour
  5. Variation or Suspension of Custody or Access Order: asking the Family Court to vary or suspend orders with respect to custody or access related to your child in your application.

If the Family Court issues an injunction order to prevent a perpetrator from molesting you and continued harassment, the order may last up to a maximum of 24 months and may be renewed if the Family Court sees fit. Once an injunction order has been made, the perpetrator must comply and if an authorization of arrest has been made by the Court, the perpetrator will be arrested by a police officer if the order is breached.

If you’re a victim requiring Family Court assistance, you can also contact the Family Court directly and even during Covid-19 times, the Family Court is hearing emergency applications so do not be apprehensive about seeking help from the Family Court.

Your application can be filed with The Family Court Registry which is located at:

M2, Wanchai Law Courts, Wanchai Tower, 12 Harbour Road, Hong Kong

Telephone: 852 2840 1218

Fax: 852 2523 9170

Email: [email protected]

 

To apply for an injunction in Hong Kong, you must fill out the following:

  1. An Application
  2. An Ex-Parte Summons which is an emergency application where there is imminent risk of harm
  3. A supporting affidavit where you outline what actually occurred and it is signed under oath
  4. A draft order containing the orders or remedies you are seeking
  5. An affidavit of personal service to be filed by the server once personal service has been accomplished

When filing your application for an injunction and you prepare an affidavit, be sure to provide as much detail as possible about the molestation and other relevant information including any imminent harm you are in fear of.  The more detailed, the better so the Family Court can issue the appropriate relief based on the information you provide.

Finally, it is important to note that domestic violence does not have to only be characterized by physical abuse, but can also include verbal and psychological abuse.  If you believe you are a victim of domestic abuse, please reach out to family, friends, domestic violence assistance organizations or the police at 999 so you can get the help you need during these turbulent times.

Relationship Generated Disadvantage

In this article, we will look at the principle which is referred to as “relationship generated disadvantage.”

So what is relationship generated disadvantage in divorce? In divorce, a spouse may request compensation for relationship generated disadvantage and it is most often applied when one party has given up a lucrative career to care for the children of the family. As seen in Miller v Miler; McFarlane v McFarlane [2006] UKHL 24, this concept recognizes that one party, usually a wife, may have seriously damaged his/her ability to earn money for the sake of the family.  This is even if the party’s future needs have been met generously.

It should be emphasized that this principle has only been seen in exceptional circumstances so before you believe you can receive such compensation upon divorce, it is important you read through this and most importantly, speak with your solicitor so he/she can advise you properly.

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Now that we have clarified the meaning of a “relationship generated disadvantage” let’s talk about a recent UK ruling whereby Mr. Justice Moor stated that a couple who had been married for approximately 10 years and had two children together should split their assets but then added that the wife, a graduate lawyer from Cambridge University who had sacrificed her career to raise the parties’ children should be awarded an additional £400,000 as compensation.  It is important to note that this additional £400,000 award was on top of an equal split of the matrimonial pool of approximately £10,000,000.

In his ruling the Judge reasoned that there was a relationship generated disadvantage because the husband, also a lawyer, had enjoyed a “stellar” career and the husband’s career took precedence whilst the wife remained at home as the primary carer of the children.

According to reports from the UK, the couple met in September 1999 when the husband was an associate solicitor and the wife was a trainee.  After the wife qualified and made an associate in March 2001, the two individuals became a couple and shortly thereafter the husband became an equity partner at a law firm.  The wife worked as a solicitor and in 2006 was promoted to be a managing associate and later moved to a bank to become an in-house lawyer in 2007.  After the couple married in 2008, they moved into a large home valued over £5.8 million. Like many couples with children, the pair decided that she would take a step back from her career to raise the children whilst her husband continued to advance in his law career.

According to the reports, the wife returned to work in a part-time non-legal role after her 1st maternity leave but then was made redundant in December 2016 and has not worked since then.

In awarding the wife £400,000 in a relationship generated disadvantage compensation award, Judge Moor calculated this based upon the husband’s future working life of 4 more years at his firm (before an encouraged retirement after 20 years of practice) and that wife had earned approximately £100,000 a year both at the firm and the bank.

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Following this ruling, the wife’s UK lawyer provided a comment to the UK press stating that they were delighted at the outcome for their client and emphasized that their client had sacrificed a potentially lucrative career to raise a family.

It is important to note the UK Judge’s statement in his ruling where he emphasized that “[I] accept that it is unusual to find significant relationship-generated disadvantage that may lead to a claim for compensation but I am clear that this is one such case.”  Thus, it is not the usual circumstance where a Family Court will find that a spouse shall receive such compensation.

When a Family Court looks to the distribution of finances, the Family Court will look at factors outlined in Cap 192 Matrimonial Proceedings and Property Ordinance section 7.  These factors include:

  1. Income, earning capacity, property and other financial resources which each of the parties to the marriage has or is likely to have in the foreseeable future
  2. Financial needs obligations and responsibilities which each of the parties to the marriage has or is likely to have in the foreseeable future
  3. Standard of living enjoyed by the family before the breakdown of the marriage
  4. Age of each party to the marriage and the duration of the marriage
  5. Any physical or mental disability of either of the parties to the marriage
  6. The contributions made by each of the parties to the welfare of the family including any contribution made by looking after the home or caring for the family

However, this most recent ruling by the UK courts may be something to discuss with your solicitor if you feel you have suffered a relationship generated disadvantage, as it may be an argument to present to the Family Court in your matter and it is apparent the Family Court may consider such compensation to you.

 

 

 

The Fight for the Family Home in Divorce

A major bone of contention among divorcing couples is the division of the family home. This is understandable given that couples invest considerable time, effort and money in creating a dwelling place and for the majority of couples, the family home is a major asset that a couple acquires during the marriage.  Having a roof over your head and over the heads of children is of paramount importance to a court when making decisions related to the matrimonial home.  It is for this reason that individuals must have a realistic view of what can happen to this asset during a divorce.  One potential change may be the loss of the family home.  A party to a divorce may be required to “downgrade” to a smaller place or may even be required to rent instead of own a home, which for some is a difficult change of circumstances.

So, with this in mind, what happens to a family home in a divorce and what options are available?  Here are a few things to consider when discussing the family home in a divorce:

Sell the Family Home:

One option that divorcing couples opt for is to sell the family home. Proceeds from the sale of the home are then split accordingly between you and your ex-spouse, the split percentage being agreed upon by you and your ex-spouse or by court order. Prior to the agreement or order for the sale of the family home, you and your ex-spouse may be required to hire an expert valuer to value the property in question, especially in circumstances where you and your ex-spouse cannot agree to the listing price or the percentage split of the sales proceeds of the home.

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In Hong Kong, the Family Court has the authority to issue what is called a “Mesher order” which basically is an order to sell the family home but at a postponed time until a named event occurs, such as when a minor child graduates from high school or university.  The Family Court will look at the facts surrounding the family before making any such orders but the goal in postponing a sale is to consider the accommodation of one spouse and the children.

Another power of the Family Court is to issue what is called a “Martin order.”  This is similar to a Mesher Order, except that under a Martin Order, one party is given an entitlement to occupy the family home for life or until remarriage.

In certain situations, if a transfer of property results in one party having a larger share of the matrimonial pool, the individual who receives the greater share may be required to compensate the other party a lump sum of the gain or the receiving party can hold a legal charge over the property until such time he/she can be later compensated.

It is important to bear in mind that if a Family Court makes an order for the sale of the family home, it can only be ordered after you are divorced (Decree Absolute).

Transfer of Property:

Although not common, the Family Court in Hong Kong also has the ability to order a transfer of the family home to the other spouse or a child of the family.

The Family Court in Hong Kong acknowledges that it is generally desirable for the primary caring parent to remain in the family home, on the basis that the children remain in a home they are used to and close to their school, and the Family Court will do what they can to maintain that status quo.  This however does not mean the Family Court will not take into account cheaper accommodation if this means capital can be released from the family home and the family can move into similar and satisfactory accommodation.

One thing to keep in mind in a transfer of property situation, is whether there is a mortgage attached to the property as this could affect a transfer of property.  What will become a factor is whether the receiving party can maintain the mortgage from either his/her own resources or from maintenance received by the other party.

Buy-Out:

Another option to consider, if you have the ability and the funds, is to buy-out your ex-spouse’s interest in the family home. If you choose this option, talk to your solicitor and discuss what provisions are necessary in an agreement/order to secure your interest in this property.

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Stay in the Home Pending Sale/Transfer:

Some divorcing couples may consider staying in the family home and live together pending the finalization of the divorce.  While this might make sense for some families, it could also create an environment of stress and tension, not only for the divorcing couple, but also for the children. Before choosing this option, it is important to have a plan and discuss this with your ex-spouse so boundaries are established and communication tools are in place should conflict occur. Having a plan will eliminate any tension that may occur when living in close quarters.

Tenancies:

In a city like Hong Kong, it is not unusual for couples not to own a home, but instead become renters due to the high housing costs. In a divorce, it is not uncommon for one party to remain in the rental unit until such time the lease has expired, subject of course to whether the parties have the ability to pay the rent.

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Adjustments must be made at times and this relates to rental units as well.  In certain cases, there may be insufficient income to pay for two rents each month.  Such adjustments may include a “downgrade” to a smaller, less expensive rental unit or even adjust the standard of living.

Discuss these options with your ex-spouse, along with your solicitor. Your solicitor can provide you with more detail on what options are best suited for you and your unique circumstances. While it may be uncomfortable and upsetting to divide an important asset such as the family home, this may also be an opportunity to start fresh and create a new home for you and your family.

 

 

 

 

 

Divorce and Children’s Welfare

Emotions run high in divorce, particularly when children are at stake. When parents are involved in a litigious battle over children, intense emotions of a parent dealing with change and loss may cloud his or her ability to separate emotions from the needs of a child. To deal with this reality, courts look to the welfare of a child when making orders regarding children and their future. The goal of the welfare of the child is the well-being of a child’s mental health, security, happiness and overall emotional development for future success. Often, the welfare of a child is closely intertwined with a close, loving and consistent relationship with both parents.

Ideally, the goal of all parents in divorce should be the best interests of a child. However, this is not always possible and this is when a court will step in to make these important decisions.

How Do Courts Determine The Welfare Of A Child?

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In the United States of America, the welfare of a child is similar to the “best interests standard” where the courts will look to several factors when determining what is in the best interests of a child. In Hong Kong, there is no “best interests” standard per se. While there is no formal standard in place, glimpses of the standard are coming through Hong Kong court decisions. And the good news is that the standard is becoming embodied in a “welfare checklist” in a children’s ordinance bill which is currently under discussion and consideration.  The “welfare checklist” includes questions the court will consider when making orders such as: the views of a child, the child’s physical, emotional and educational needs, family violence and the capability of a parent to meet the child’s needs. Keith Hotten, a barrister, mediator and matrimonial law professor in Hong Kong says “[The new legislation] brings Hong Kong into the modern world. The point of the new legislation is to bring focus onto parental responsibility, which is essentially joint custody.” 

In Hong Kong, the welfare of the child is of paramount consideration when courts make decisions with respect to children.  The welfare of the child is fact specific to each and every case. It is a broad standard, which is valuable because the court will look at many factors before making any major decisions regarding a child.  Some factors the court may consider include the following: 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, and if the child is at an appropriate age and maturity; the benefit of keeping the siblings together with one parent; the religion and culture of the family; and also professional reports such as medical, schooling or the court’s social welfare officer reports.  It is important to note that this list is not exhaustive and are only a guideline of some of the factors the courts will take into consideration when considering the welfare of a child. Many times, the court will consider any and all factors it deems valuable in making an informed decision regarding the welfare of the child.

A Parent’s Role And A Child’s Best interests:

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In a divorce, it is of utmost importance that parents consider what is in the best interests of their child when making decisions for the family post-divorce. It is also important for parents to be mindful of the fact that their actions will weigh heavily on a child, including behavior during the divorce.  When it comes to separation and divorce, it can easily slip into a contest of which parent is acting more in the “best interests” of their child.” To avoid this type of conflict, parents should talk together and/or consider a parenting coach or mediation to assist when communication with each other is becoming difficult.  A mediator or parenting coach can assist parents with effective communication and provide individuals with tools on how to communicate, think reasonably and rationally and manage emotions during a very difficult transition.   Parents should also ask themselves key questions before making any major decisions such as: “How will this impact our child’s relationship with the other parent? How will this impact our child’s emotional and mental well-being? How will our child feel towards me in the long-term, if I reduce contact with the other parent?”

Overall, parents who work together and make the best decisions for their child are better off than when a court imposes an order on the family. With that goal in mind, look for a parenting expert or coach in Hong Kong. There are also many valuable resources available to you including co-parenting classes and co-parenting books. Finally, don’t forget to talk to a solicitor in Hong Kong for a resource list and tips on how to navigate this process!

Mental Health and Divorce

It is not uncommon for many individuals to equate divorce to a death in the family.  A plethora of emotions are not uncommon and can range from feelings of freedom, happiness, remorse, sadness and guilt along with a dash of bitterness, resentment and frustration.  A divorce becomes exceptionally difficult when individuals are engaged in long, drawn-out court battles on key issues such as children, assets and ancillary relief.

In this article, we focus on the importance of enlisting the help of mental health professionals when you are going through a divorce.  It is a key way to help you heal and move forward in your life.  Mental health professionals can help you process the range of emotions you may experience during the divorce process and provide you with helpful tools to resolve issues you may be dealing with in this divorce journey.

In a time when mental health awareness is being highlighted in media and self-care is becoming a priority, there should be no shame in seeking help when it is needed to get you to a better place emotionally and spiritually.

  1. Types of Mental Health Professionals:  Before we dive into the benefits of enlisting the assistance of mental health professionals in divorce, let’s look at the types of mental health experts available to you in divorce. One mental health expert may be a therapist/psychologist. A therapist/psychologist can assist you in managing the stresses of divorce, including your expectations of the outcome. A therapist/psychologist can also help you develop new interpersonal skills that are valuable in creating healthier relationships whether it be with your spouse or your children during and after the divorce process. The interpersonal skills and tools you may learn through therapy is especially helpful if you have children and there is a need to co-parent with your ex-spouse.  If you do not have the means to hire a therapist/psychologist, there are many mental health services available such as St. John’s Cathedral Counselling Service or The Samaritans in Hong Kong which can provide emotional support and counseling services for those in distress free of charge.  Another mental health professional you may consider is a mediator who can assist you and your spouse negotiate a mutual agreement with respect to custody and access.   This is an ideal option if you and your spouse are on amicable terms and you both believe a compromise is feasible through open dialogue and communication.  To enlist a mediator to assist in custody and access issues is beneficial especially if you and your spouse agree that you do not wish to involve the court in resolving your custody and access issues.   Another option is a parenting coordinator, who can assist you and your spouse resolve minor issues such as holiday pickup arrangements and communication disputes.
  2. Benefits Of Hiring A Mental Health Professional In Divorce:  What are the benefits in hiring a mental health professional? Calming emotions, clarifying expectations and helping discuss difficult issues are just some of the essential benefits obtained through the assistance of a mental health professional. Before deciding on a mental health professional, do your due diligence and conduct your own research before you entrust the personal details of your life to a professional. Your solicitor can be a helpful resource in providing you with a list of reputable and highly trained experts in the very area in which you seek assistance. There are many healthcare professionals in Hong Kong who have dealt with divorcing couples and can provide you and your family with helpful tools on how to navigate these difficult waters.
  3. When Should A Mental Health Professional Be Employed In Your Divorce?  Deciding on whether to enlist the help of a mental health professional is a personal decision. Consider therapy if you believe it can offer support and assistance in your own personal growth journey. Consider therapy if you are struggling with mental illness, which may be triggered or exacerbated by the circumstances surrounding your divorce. Talk to your solicitor to determine if a mediator is needed to resolve disputed children’s issues in your divorce. Your solicitor may have insight as to whether these third-party experts will be helpful to your case. You and your spouse may even consider enlisting the help of these trained mental health professionals for your children, especially if they are struggling with the “new normal” of the family dynamics.  However, when doing so, make sure that the children are amenable to the idea as it truly is up to a child on whether he or she wants to attend therapy.  Respect your child’s privacy if he or she chooses to attend therapy to resolve issues related to the divorce and remember not to use it as a weapon against the other spouse in your divorce.
  4. Consider Other Forms Of Mental Health Support: Finally, mental health support does not need to be limited to therapy. Consider mediation, yoga or other forms of physical exercise to boost your mood, mind, confidence and self-esteem. A healthy lifestyle, hobbies, journal practice and gratitude and appreciation lists are also helpful ways to boost your mood and confidence.  Change is difficult to adapt to, but be hopeful in that change is good and there are better things ahead.

Your solicitor is available to support you through the divorce process and can provide you not only with legal assistance but emotional support as well.  Do not be afraid to ask for help when you need it.  There is no shame in asking for help to bring your mental state to a better place.

Cross Border Views on Inherited Wealth

This article looks at how inherited funds are treated from a cross-border perspective. To the surprise of many, inherited wealth in a divorce may be treated differently depending on the jurisdiction in which you file for divorce. Location is therefore an important factor to consider when divorcing. To unpack this topic, let’s explore and contrast how inherited wealth is treated in Hong Kong vs. the United States of America, in particular the community property state California.

1. Inheritance in Divorce in California: California, like many other states, is a community property state. This means that in a divorce, all property acquired during the marriage is divided equally between the divorcing parties. An exception to this rule occurs when an individual receives an inheritance during the course of the marriage. In those circumstances, under California law, an inheritance is separate property and therefore will be excluded from the division of assets and debts in a family estate (Family Code Section 770).

It is important to note that when an individual receives an inheritance, the monies received must be traceable to the source so there is no confusion as to whether the money is separate property or community property. That is why it is always a good idea to open a separate bank account and deposit inheritance monies into this separate account to identify them and keep them separate. Otherwise, by depositing inheritance funds in a joint community bank account, you are commingling funds. When monies become commingled, it can become very difficult to trace monies back to the separate property source and your former spouse may have an argument that all inherited funds were already spent during the marriage and therefore all remaining funds in the joint account are community property and must be split equally. When in doubt, always keep clean records of any inherited funds and keep records of how these monies have been spent. If you don’t keep track, a tracing expert may be enlisted but tracing can become quite expensive and time-consuming thereby stalling the divorce.

2. Gifts Are Separate Property in Divorce in California: Another exception occurs when an individual receives a gift. For example, if you receive a beautiful piece of jewelry from your spouse for an anniversary or birthday, this gift is generally excluded from the division of assets and debts in a family estate. If, however, the gift could be considered of substantial value, the courts will then look at the asset more carefully and it may be subject to division taking into account the parties’ wealth and finances.

If the asset is determined to be of substantial value, it is community property and must be divided between the parties – unless of course, either party can present a written transmutation agreement changing the character of this asset from community to separate.

3. Inherited Wealth in Divorce in Hong Kong: Over the years, there has been much debate over how inherited funds should be treated in a divorce in Hong Kong and whether these funds should be excluded from division. In Hong Kong, inherited wealth are those assets that come from a source wholly external to a marriage. Like Great Britain, the courts in Hong Kong have regard to the “yardstick of equality” as a starting point, meaning the goal is to divide the asset pool fairly. Courts in Hong Kong may however, veer from this principle and make adjustments, thereby dividing assets “unequally” if after reviewing certain statutory factors, taking into account the whole of the asset pool, reasonable needs, compensation and applying the “sharing principle” if assets exceeds the needs, in addition to the specific circumstances surrounding the divorce, and finds that an individual’s inheritance could be a resource to fulfill and satisfy an individual’s reasonable needs and the needs of the children post-divorce (See the Hong Kong landmark case titled DD v LKW (2010) 13 HKCFAR 537.) As a result, the Court may heed to flexibility in order to find a suitable answer to the circumstances of each case whereby the objective is to reach a just result that is fair for both parties. Thus, unlike California, inheritance funds received by an individual in Hong Kong may be taken into account because it forms part of the asset pool that is a financial resource to one or both of the parties. Stephen J. Peaker, head of the Family Law Department at Oldham, Li & Nie (OLN) and a fellow of the International Academy of Family Lawyers (IAFL) says: “The issue of inherited wealth is becoming more and more prevalent in Hong Kong, both in contested and uncontested cases. The economic success of Hong Kong and the natural passage of time combined have created substantial inherited wealth. One of the key areas of dispute on succession is in relation to family businesses, often with enormous value where one party inherits a business interest. This business can be valued as part of an asset pool and unsurprisingly, this is viewed by the creators of the wealth as inherently unreasonable and has led to the proliferation of generational trusts and the increase in prenuptial agreements.”

It is interesting to note that in Hong Kong, the Court may consider an inheritance even if it has not yet been received, but provided an individual is set to receive an inheritance in the near future or has a perceived resource. Additionally, if you’re involved in a short-term marriage and there are inheritance funds in the asset pool, the courts may not consider the inheritance in the asset division yet if it is a long-term marriage, the courts may include inherited funds, unless these funds were kept entirely separate.

It is important to understand and become knowledgeable of the specific laws of your jurisdiction. Speak with a professional about how to protect your inheritance and what can be done to avoid any issues when dividing assets in your divorce. If you’re getting married, you may want to speak with a family law professional to discuss a prenuptial agreement and ways to avoid any issues in the event of a divorce. Being well prepared will help avoid any heartache in the future!