Considerations for Child Arrangements Ahead Of The Holidays

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Considerations for Child Arrangements Ahead Of The Holidays

The holidays are fast approaching and for many, holiday plans have already been organized and tickets purchased to travel outside of Hong Kong.  Hong Kong quarantine restrictions have loosened to the point that many individuals have taken this opportunity to fly out of Hong Kong after almost 3 years of heavy travel restrictions and hotel quarantine.

In addition to booking tickets and accommodation for the upcoming holidays, it is important that you also consider children’s arrangements if you are involved in a divorce and have to share custody/visitation of the children.

In preparation for the upcoming holiday season, here are some things to consider and discuss with your solicitor before you take the flight out of Hong Kong:

  1. Clarify and Confirm Children’s Arrangements Ahead Of The Holidays: To avoid conflict with your spouse over the holidays, make sure that you are aware of the dates you are entitled to have the children during the holidays.  Respect that your spouse is also entitled to have time with the children and ensure that any holiday bookings are within the timeframes allocated to you and does not encroach upon your spouse’s time with the children.  To avoid conflict, it is a good idea to revisit your holiday custody plan and ensure that you and your spouse have discussed the holiday plans so that you are both on the same page and have both booked your holidays that respect each other’s time with your children. If there is conflict over timeshare during the holidays, it is best to resolve it before you fly out of Hong Kong rather than having to deal with a custody/visitation dispute whilst traveling and having it ruin you and more importantly your children’s holiday plans.
  2. Provide Emergency Contact Details: Ahead of any holiday, it is imperative that you keep your spouse up-to-date on the children’s holiday plans.  This includes providing emergency contact information and also a detailed itinerary of the children’s whereabouts during their travel, namely flight and other travel details.  Your spouse is entitled to this information because as a parent he/she should always have access to the children and should be made aware of where the children will be staying and with whom.  It is important that you do not make it difficult for your spouse by refusing to provide such important information about the children and their well-being during their travels. With that being said, it is important that when you are on holidays with the children, you allow the children to maintain contact with the other parent.  Being on holidays is not a free pass for you not to stick with a “virtual” visitation schedule and you should do everything you can to facilitate communication between the children and the other parent even on holidays.
  3. Ensure You Have Important Documents On Hand Before Travel: Before you travel with the children, it is important that you have all the necessary travel documentation to make your journey seamless.  This includes up-to-date vaccination records especially with the ongoing Covid-19 virus and the related changing rules amongst various countries.  You also might want to also take the time to speak directly with your solicitor as to whether you will need a Deed of Parenting ahead of travel.  For example, if you and your children have a different last name and the parent with the same last name as the children is not traveling with you, immigration officials at various checkpoints might ask tough questions to ensure that the children are in fact your children.  A Deed of Parenting will assist in avoiding such questions at border control and can easily be drafted by your solicitor prior to you leaving Hong Kong with the children.

If you have any concerns about taking the children on holiday and have concerns about potential issues with your spouse whilst on holiday, it is best to speak with your solicitor and iron out the details and any conflict before you leave Hong Kong.  It will be more difficult to iron out details about the holidays when you’re already on holidays with the children.  It is more trouble to have to deal with conflict with your spouse and having to communicate back and forth with your solicitors in Hong Kong when you should be having fun with the children and enjoying your time away from home.

Yearly Recap of Some of The Most Interesting Divorce Stories in 2022

The year of 2022 was not short of interesting and sometimes shocking divorce stories from around the world.  To wrap up the year, we have put together a list of some of the more interesting stories that have been circulating the web over the last year:

  1. Celebrity Breakup: One of the top celebrity breakups was surprise divorce between uber famous Tampa Bay Buccaneers quarterback Tom Brady and supermodel Gisele Bundchen. It was reported that Gisele gave Tom an ultimatum to choose their family or his NFL career after his short retirement. Both Tom and Gisele released joint statements after filing for divorce on October 29, 2022 and they are expected to amicably raise their children despite the divorce.
  2. Pet Custody In China: A couple in China decided to divorce and whilst they had no children, they did have a pet Corgi.  The Corgi was at the center of their divorce, with both pet parents wanting full custody of the dog. The wife argued that she deserved ownership of the dog because she purchased the dog but also raised the Corgi.  The husband acknowledged that he did not feed the dog or clean up after it as much as his wife, but that he walked the dog regularly and considered the Corgi as his child.  The Court in China accepted that the dog was a joint asset of the marriage but it could not be divided as a normal asset would.  Eventually the couple reached an agreement and the Corgi lived with the wife.  The husband had regular visitation and he agreed to pay monthly alimony for the dog’s monthly expenses.
  3. Highest Divorce Rate: Maldives, Kazakhstan and Russia have been listed as the top places in the world with the highest divorce rate.  Also on the list for 2022 was Belgium, Belarus Moldova, China, Cuba, Ukraine and Denmark.  
  4. Top Reasons for Divorce: In another report, lack of commitment, communication issues and infidelity topped the list on the main reasons for divorce.
  5. No Fault Divorce in England and Wales: On 6th April 2022, England and Wales adopted a “No-Fault Divorce Law” pursuant to the Divorce Dissolution and Separation Act, which allows couples to legally separate without either party having to admit any wrongdoing.  This is a change from the previous law in the United Kingdom where parties filed for Divorce citing fault either by way of adultery or unreasonable behaviour or desertion. Whilst couples in the United Kingdom can opt for divorce based on 2 years’ separation, this basis for divorce requires consent from the other party and if no consent is received, parties must be separated for an additional 5 years before a Petition for Divorce can be filed.

That wraps up the year of 2022!  We at Hong Kong Divorce are here to provide you with as much useful information as possible to make your divorce journey as smooth as possible.  If you are thinking about divorce or wish to file, be sure to speak with a solicitor who can assist you along the way.  We at Hong Kong Divorce wish you a very Happy Holidays and an even better New Year of 2023!

Hong Kong Divorce x Liv Magazine: A Beginner’s Guide to Divorce and Custody

Hong Kong Divorce was recently featured in Liv Magazine’s November 2022 issue.  Here’s a look at our Feature Article!

Every relationship has its problems, and while counselling can help many couples get back on track, sometimes separation is the only way forward.

If you find yourself in this difficult situation, it can be reassuring to have a trusted resource to help guide you through the divorce process in Hong Kong. If there are children involved, it’s even more important to come to an amicable separation.

How Do Hong Kong Courts Deal with Divorce?

In Hong Kong there are five grounds for divorce, and you need to select one option when filing your paperwork. They are:

  1. Adultery
  2. Unreasonable Behaviour
  3. One Year Separation with Consent of the Other Party
  4. Two Year Separation Without Consent
  5. Desertion (for at least a period of one year)

How Do Hong Kong Courts Deal with Custody Issues?

In Hong Kong, children issues are broken down into three areas:

Custody: In Hong Kong, you will either be granted “sole” custody over the children or share “joint” custody with the other parent.

Generally speaking however, whether you receive sole or joint custody, each parent will always have a right to be consulted over major issues with respect to the children such as education, religion and health.

Even if you are granted “sole” custody, the other parent can veto your decision by bringing this to the Family Court.

Care and Control: This refers to the parent who will be responsible for the day-to-day decisions related to the children and who the children will be living with on a day-to-day basis.

Access: In cases where one parent has care and control, there will be an order for reasonable access.

 

Your lawyer will go through each of these issues with you, in order to fully understand the terms you want from the divorce, and ideally work with the other party to come to a mutually agreed-upon resolution.

 

All About Hong Kong Divorce

HongKongDivorce.com is a free educational tool and resource for individuals struggling to navigate divorce in Hong Kong. You can find all the answers you need to assist you in navigating through the complexities of divorce and matrimonial proceedings in Hong Kong.

It aims to set out in simple terms what you can expect to encounter in the run-up to a divorce, and during the long and sometimes complicated process that may follow.

Caroline Choi

 

 

 

 

 

Caroline Choi, HongKongDivorce.com

The platform was created by Caroline Y Choi, a matrimonial lawyer at Oldham, Li & Nie. Caroline is an expatriate who has lived in Hong Kong since 2016. She is Of Counsel with the Law Society of Hong Kong and an attorney with the State Bar of California. She specialises in high-asset expatriate divorces and with multi-jurisdictional expertise in Hong Kong and California. As a frequent contributing writer for The Huffington Post on all issues related to family law, Caroline created the website HongKongDivorce.com with the objective of providing the public with easily accessible information related to every aspect of divorce. Its mission is to provide a concise and clear overview of the law, with the objective of providing the public with easily accessible information related to every aspect of divorce and to clarify how the divorce process works. Its mission is to provide a concise and clear overview of the law, answer common queries and provide general support to those in need.

 

Contact Details

Looking for advice? Call 2186-1810 or visit HongKongDivorce.com to learn more.

Timeline For Divorce In Hong Kong

One of the more common questions we receive is how long does it take to obtain a divorce in Hong Kong? There is not a simple straight-forward answer as there are many considerations involved in such a timeline.  The timeline of a divorce could be impacted by your personal circumstances but also circumstances out of your control. For example, earlier this year, the courts in Hong Kong were subject to a “GAP” (a general adjournment period) due to the Covid-19 outbreak in Hong Kong.  As a result, the courts in Hong Kong were closed for an extended period of time and this caused significant delay for many individuals going through a divorce in Hong Kong.

With that being said, the Family Court in Hong Kong do have general guidelines on how long it should, practically speaking, take for cases to be concluded in Hong Kong. This is outlined in Practice Direction SL10.4 with the Family Court’s Target Time Tabling schedule.  According to this Practice Direction, after a Case Management Hearing (“CMH”) hearing is listed before the allocated judge, and in cases that involve both children and finance proceedings, the target time table is as follows:

  1. Short cases within 23 months from the Case Management Hearing;
  2. Medium cases within 27 months from the Case Management Hearing;
  3. Long cases within 32 months from the Case Management Hearing.

The time tabling estimates of course may vary if you are only dealing with finance issues.  According to the Practice Direction SL10.4, cases involving finances only, the target time table is as follows:

  1. Short cases within 13 months from the Case Management Hearing;
  2. Medium cases within 17 months from the Case Management Hearing;
  3. Long cases within 22 months from the Case Management Hearing.

It is important to note that on the issue of divorce only, if you and your spouse are not involved in a dispute on the issue of divorce and it is an undefended divorce, the timeframe from the filing of the Petition to the Decree Absolute is generally anywhere between 6 to 9 months.

It is important to speak with your solicitor about any questions you may have about the timetable for your divorce as he/she will be able to give you a better idea of how the courts are handling matters at the time of filing.  The complexity of your case will also determine the timeline as to how long it will take the courts to set down key dates/hearings.  Your solicitor should prepare you in that a divorce in Hong Kong is never quick.  It will take time to divorce in Hong Kong and it will be an involved process that requires a great deal of patience.

No-Fault Divorce in the UK_Is This What’s In Store For Hong Kong?

On 6th April 2022, England and Wales adopted a “No-Fault Divorce Law” pursuant to the Divorce Dissolution and Separation Act, which allows couples to legally separate without either party having to admit any wrongdoing.   As Editor-in-Chief at Hong Kong Divorce and as a qualified attorney with the State Bar of California and a member of the United States District Court, Southern District of California and United States District Court, Central District of California since 2007, I wanted to discuss No-Fault Divorce and how the new law in the United Kingdom compares to No-Fault Divorce in California.

Under this new No-Fault Divorce law in the United Kingdom, parties filing for Divorce can file a joint application for divorce without the need to cite terms such as Adultery or “Unreasonable Behaviour” and thus pointing to the conduct of the other party.  This is a change from the previous law in the United Kingdom where parties filed for Divorce citing fault either by way of adultery or unreasonable behaviour or desertion.  Whilst couples in the United Kingdom can opt for divorce based on 2 years’ separation, this basis for divorce requires consent from the other party and if no consent is received, parties must be separated for an additional 5 years before a Petition for Divorce can be filed.

No-Fault Divorce has long been something followed in California.  In fact, California was the first state in the USA to enact a No-Fault Divorce law.  This law was signed by Governor Ronald Reagan, a divorced and remarried movie star at the time and came into effect in 1970.  Many states in the USA now follow the No-Fault Divorce law including New York, Florida, Washington and Hawaii, among others.

For those in favour of the No-Fault Divorce law, the benefit of the move towards this new law is that the litigious heat that many couples face in divorce will be taken out of the divorce process as the courts will no longer look to fault and the reasons behind the breakdown of the marriage.  Instead, the view and hope are that the parties will instead focus on a more collaborative way forward in resolving issues related to children and financial division.  In the United Kingdom, industry leaders are embracing the move towards the No-Fault divorce law as “fault” creates unnecessary conflict and in fact, many believe that “fault” has no bearing on the outcome of financial proceedings.

It is true that in California, there are at times litigious divorces even though it is a No-Fault state.  Many parties can bring in “fault” through declarations and testimonies filed with the Court in support of their motions for relief.  It is not a perfect system.  And it is likely that in the United Kingdom, while the hope may be to create a more harmonious environment for divorcing parties, there still will be loopholes where parties’ attempts to bring in information to prove fault and blame will remain to play a pivotal role in the divorce.  However, similar to what California has seen in their No-Fault divorce system, the United Kingdom judges will no longer focus on what caused the breakdown of the marriage and instead focus on simply moving the divorce forward and focusing on the wishes of the parties to end the marriage.

With the new law in effect as of 6th April 2022, the parties can now file for divorce and cite “irreconcilable differences” which is how divorcing parties file for divorce in California and other No-Fault states. In addition to the citation of “irreconcilable differences” the parties will then file for a condition order (similar to a Decree Nisi in Hong Kong, which is a first step towards a divorce or Decree Absolute) and then once that is granted, the parties can then apply for a final order (Decree Absolute).

The big question many are now asking is whether the process in the United Kingdom with No-Fault divorce will result in a quicker divorce process.  According to experts in the United Kingdom, there will be a minimum period of 20 weeks from the commencement of the proceedings to the conditional order.  In California, the courts provide parties an opportunity to ponder upon the divorce and provides opportunity for reconciliation during the “waiting period.”  In California under Section 2339(a) of the California Family Code, the waiting period is six (6) months and begins once the Summons and Petition for Divorce is filed or the date of appearance of the Respondent, whichever occurs first.  This minimum 6-month period to obtain a divorce is to allow the parties sufficient time for parties to change their mind about the divorce and to reconcile.

The England and Wales No-Fault Divorce law follows the likes of many other international countries who have also adopted this No-Fault divorce including Australia (Family Law Act 1975), Canada (The Divorce Act 1968) and Sweden.  Whether the No-Fault divorce law will incite more divorces in the United Kingdom is yet to be seen.  Proponents against No-Fault divorce argue that this will only increase the filing of divorce petitions, in addition to the fact that without allowing fault to be introduced into the discussion, judges will make important decisions without consideration of the facts, behaviour and circumstances that led to the breakdown of the marriage.

A big question among practitioners and clients in Hong Kong is whether the Hong Kong courts will follow the United Kingdom by introducing No-Fault Divorce.  This is yet to be seen but it is likely that if Hong Kong courts decide to move towards No-Fault Divorce, it will take much time and consideration before any decisions are made.  History has demonstrated that Hong Kong courts are slow to follow the United Kingdom and thus, only time will tell if Hong Kong decides to move towards No-Fault Divorce.

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