Postnuptial Agreements vs. Deed of Separation – Which One Do You Need?

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Postnuptial Agreements vs. Deed of Separation – Which One Do You Need?

In this article, we are going to touch upon two important types of agreements that you and your spouse can enter into:  Postnuptial Agreements and a Deed of Separation.  What is the difference between the two agreements and which one should you opt for, if at all.  Let’s take a look!

Postnuptial Agreements:  A Postnuptial Agreement is a marital contract and entered into after the marriage.  In comparison, a Prenuptial Agreement is a marital contract entered into prior to the date of marriage.  Similar to a Prenuptial Agreement, a Postnuptial Agreement can be entered into between a husband and wife (because it is after the marriage) in order to set out terms for resolution of key issues in a divorce such as finances and children.  For many couples, a Postnuptial Agreement is a key document to set out terms in anticipation of divorce, thus making the divorce process a lot smoother so that there is no ambiguity over what could be high conflict issues.  Sometimes, couples enter into Postnuptial Agreements because they are considering a divorce but then they decide to reconcile.  Then as a safeguard, they have in place a Postnuptial Agreement in place in the event the reconciliation does not work.  In Hong Kong, Postnuptial Agreements are recognized and considered when dealing with divorce settlements by the Hong Kong Courts.

Deed of Separation:  A Deed of Separation on the other hand, is a separate agreement made between a husband and wife after a decision has been made to legally separate.  Many times, couples enter into a Deed of Separation to outline the terms of their divorce on key issues such as finances and children.  The Deed of Separation is then attached to the Divorce Petition to demonstrate to the Hong Kong Court that an agreement has been reached between the parties and thus, the divorce should therefore move forward without delay.  This extra step in entering into a Deed of Separation may be worthwhile for couples because an agreement can be reached early on in the separation process.  It essentially releases the heat which may arise in a divorce process when disagreements take place between separating couples.

Is A Deed of Separation Similar to a Judicial Separation?:  A Deed of Separation is simply a contract/agreement entered into between you and your spouse outlining the terms agreed to with respect to a separation/divorce.  A Judicial Separation however, is an actual application made to the Hong Kong Court whereby you and your partner are stating that you want to be legally separated but for some reason not legally divorced.  Many times, individuals choose a Judicial Separation for personal reasons such a religion.  Whatever the reason, it is important to remember that if you apply and obtain a Judicial Separation, you are legally separated but it does not mean you are divorced.  Later, if you decide you wish to become legally divorced from your spouse, you will need to commence separate divorce proceedings.  This is something to consider from a cost basis because you will need to spend money both on a Judicial Separation proceeding AND a divorce proceeding if you later wish to become legally divorced.  Another key consideration when applying for a Judicial Separation is that if you obtain a Judicial Separation and are not legally divorced and only legally separated, you are not free to marry under the law.  If you obtain a Decree Absolute in your divorce proceeding however, you are free to remarry upon the pronouncement of a Decree Absolute.

How Do You Choose Between These Options?:  Before you move forward with a Postnuptial Agreement, Deed of Separation and/or a Judicial Separation or Divorce, it is important that you speak directly with a solicitor and explain your special circumstances.  Depending on your circumstances, one agreement may be a better option than another.  Your solicitor will then be able to guide you in the right direction as to what agreement/contract you should have in place and whether a separation or divorce is the better option for you when applying to the Court.  Your solicitor will help ensure you take the right steps for yourself and your family.

HK Divorce:  Helping Your Loved Ones Through Divorce

At Hong Kong Divorce, we have walked you through the many issues you may face going through a divorce and what that journey entails from a legal perspective.  For many of you, a divorce can catapult you into a difficult grieving process which can take as little or as long as you need and it is with the help and support of your loved ones, that you will be able to pull through and lead you to a new life that can be full of joy. In today’s article, we want to focus on your friends and family who are going through this journey with you and provide some practical and helpful tips your family and friends can do to support you through this difficult time.

Tip #1 – Provide A Listening Ear:  One of the most helpful ways to be there for your loved one is to listen to them when they need your support. Providing an open space for your friend or family member to express their hurts not only helps them process through the grieving process but also allows them to understand that they are loved regardless of the circumstances.  At times, you may become frustrated if you feel that the person is not moving on or repeating the same toxic patterns. However, it is important to remember that when your loved one is processing through his/her grief, a consequence of the grief is that your loved one may repeat toxic patterns as a coping mechanism to get through the pain.  As frustrating as it may be, the last thing you want to do is refuse to listen because if you refuse, you may end up pushing your loved one away.  The best thing you can provide is an open ear and provide that support by listening again and again.

Tip #2 – Do Not Judge and Be Supportive: It is also important that when you are listening to your loved one who is going through the stages of their divorce process, that you provide a listening ear that is free of judgment or scorn.  Your loved one is already in a fragile state of mind during a divorce and he/she is not looking to receive additional judgment or scorn from you.  Divorce can be extremely isolating for some individuals and part of the isolation is the feeling that he/she is being judged by the world.  You must remember that the divorce process is a marathon and it requires a lot of your loved one’s time and emotional energy. You therefore want to be the person who can provide that support in a safe space and you can do that by providing a listening ear and advice (when asked) that is free from judgment.   You want your loved one to be completely honest with you about what he/she is going through so that you can support them in the best way possible.  Your friend/family member cannot be completely honest unless they know you are a safe person to divulge their deepest sorrows during one of their most difficult times. It is during the divorce process that your loved one might also go through certain transitions and he/she may make choices that you might not be in agreement with.  However, rather than judge, allow your friend/family member to explore their new normal and figure out what works for them.  They may start dating or take on a new hobby/activity that you do not agree with. Rather than judge your friend, perhaps try and understand their choices and ask them what you can do to support them during this time.

Tip #3 – Assist In Other Helpful Ways:  A good way to support a loved one going through divorce is to simply ask him/her what he/she needs.  It might be a listening ear. It might mean a meal together or helping them with tasks around the house.  Sometimes, your friend/loved one might need financial assistance as the divorce process is not a cheap process to go through.  Consider your loved one’s needs and consider how you can help.  Even if it means delivering a nice meal to their home or helping take care of their children when they need time to go to Court or meet with their lawyers, this assistance will go a long way.

If you have never gone through a divorce, it may be difficult to empathize with a loved one going through a litigious divorce.  For many individuals, they describe divorce as a death in the family.  The grief associated with divorce can loom large in their lives and it will take time for your loved one to move on.  Be there to support your friend/family member in the best way you can and he/she will surely be appreciative of it in the long run.

Questions to Ask Your Solicitor

Many families are back in Hong Kong after a long, extended summer away and the focus is now on settling back into a routine with your family and children.  For some, now that the chaos and fun of summer is over, it is the opportune time to regroup and sit down with your significant other to talk about the hard topics that may have been swept under the rug for the sake of summer fun.  It is during this new season that many couples have considered speaking with a solicitor to get their queries answered about separation, divorce, custody and all the other important topics related to a split.

Before any major decisions are made about a divorce, it is important that individuals educate themselves about the separation and/or divorce process in Hong Kong and education includes spending a good 30 minutes to an hour with a solicitor specializing in divorce to answer all the questions you may have about what a divorce could mean for you and your family.

In this article, we will list out all the questions you should take with you and ask your solicitor in your initial consultation so you have a handy checklist on what information you need to make an informed decision about your divorce.

  1. List of Questions To Ask Your Divorce Solicitor In The Initial Consultation: Here is a list of questions to ask your divorce solicitor in an initial consultation. Please be minded that you may want to add to this list of questions based on your personal circumstances.
  • What is your experience in family law? Can you tell me a little bit about yourself and your experience handling these types of matters?
  • What is the difference between a separation and a divorce in Hong Kong?
  • Who is likely to obtain custody/care of the children? Do the Courts in Hong Kong give preferential treatment to mothers?
  • If I receive primary care of the children, will my partner still have the ability to make joint decisions on issues like religion, schooling and healthcare?
  • I want to move away from Hong Kong with the children, what process do I need to go through in order to obtain this?
  • How will the Courts in Hong Kong determine the division of assets and debts? Is it 50/50?
  • How will the Courts in Hong Kong determine alimony and child support?
  • Instead of going through the Court process, are there other alternative methods to resolve the outstanding issues with my spouse? For example, is mediation or collaborative divorce an option in Hong Kong?
  • If I go through the divorce, can I speak directly to my spouse and negotiate with my partner on my own?
  • How much will you charge me for a divorce? What about extra fees?
  • What do you anticipate/estimate my fees will be to finalize the divorce?
  • Will you be handling my case or do you have a team/associate assisting as well? How much do you charge per hour?
  • If this becomes a litigated case, do I need to also hire a barrister?
  • Can we ask that my spouse pay for or contribute to my legal fees?
  • Based on the information provided, what would be your suggested strategy for my case?
  • How long do you think it will take to resolve my case on the divorce, children and finances?
  1. List of Questions To Ask Your Divorce Solicitor During The Proceedings:  is important that during the divorce process, that you are fully informed of your case and the progress being made.  Questions that you pose to your divorce solicitor will vary depending on your own unique circumstances.  Here is a list of questions you may want to ask throughout the proceedings so that you are on top of your case and fully informed of its progress.
  • Can we review the progress of my case to date and discuss the strategy going forward?
  • How much longer do you think it will take to conclude my case?
  • How much have I paid in costs thus far? Can you provide an estimate of how much it will cost further, to conclude my case?
  • Is there anything you can do to move this case forward faster?
  • I am not happy with the result/progress of my case, is there anything we can do?
  • Do you think it is time to send out a settlement offer?
  • I have moved on and want to remarry, can I do that even though my divorce is not yet concluded?
  • My financial situation has changed since the commencement of my case. How can alimony be adjusted due to the change in circumstances?
  • Now that my children are older, I want to spend more time with them and they want to spend more time with me. Can I adjust custody/timeshare now that they are older?

You are now armed with important and key questions to assist you in the process of your divorce with your solicitor.  Each case is different so you will have your own specific questions unique to your own circumstances. Your solicitor should always be available and willing to answer any and all questions you may have.  If there is a lack of communication between you and your solicitor, this should be considered a concern as you should always be aware of the progress of your case and the direction it is headed.  If there is a breakdown of communication with your solicitor, it may be time to have a difficult conversation with your solicitor or move on with another solicitor to support you on your journey.

What To Expect At A Divorce Trial

For some couples going through a divorce, key decisions about finances and the children may end up being decided by a judge at trial.  This happens if you and your spouse cannot agree on how to resolve issues between you both or with the help of a mediator.  For many couples entering the world of divorce, trial is the last thing on their minds and many individuals cannot believe that their divorce has to be decided by trial.  The reality though, is that if you and your spouse cannot agree on key issues, your case will proceed to trial in Hong Kong and these decisions will be made by one person: a judge. So, let’s discuss trial and what you can expect leading up to trial:

1. How Did You Get Here?
The first question many couples ask, is how in the world did they end up going to trial in a divorce?! When couples cannot agree on key issues mainly related to ancillary relief (finances) and the children, they will have no choice but to continue through the Court process in Hong Kong which ultimately will end up at trial if decisions/agreements cannot be reached by the parties in the meantime.  For many couples, trial is burdensome not only because it is extremely expensive, but also because it is emotionally taxing on the couple, but also the children and the effect on them of having parents who have to endure the lead up to and during the trial. Many solicitors will thus encourage couples to try and mediate during the divorce and come to an agreement on issues by way of a Consent Summons, so that the decision related to the breakup is made by the couple and not by a judge.  Unfortunately, this is not necessarily an easy feat for many couples as divorce can bring out a lot of resentment and anger. However, if you are able to put the anger and resentment aside and come up with a compromise between you and your soon-to-be ex-spouse, this will always be encouraged to avoid trial.

2. Preparations for Trial
Prior to trial, your solicitor and barrister team will be hard at work preparing all the necessary documents to be filed with the Court ahead of the trial. Many times, the trial judge will hold a Pre-Trial Review hearing, to get a better understanding of the issues to be decided at trial and what work needs to be done ahead of time. At a Pre-Trial review hearing, the judge will provide each side with deadlines for filings and any other deadlines the judge sees fit.  Your solicitor and barrister will need to adhere to the deadlines set out by the court and it will require a lot of discussion with the other side so that both sides are fully prepared by the trial date.  Closer to the trial, your solicitor and barrister team will also hold several meetings with you to prepare you for trial and the testimony you will be giving.  They will run through the types of questions the other side may ask you on examination and how you should conduct yourself whilst on the witness stand.

3. What to Expect at Trial
Your solicitor and barrister team will handle each day with expertise and ease so as to make you feel comfortable and in good hands.  The trial will be emotionally taxing as you and your spouse will be taking the stand and will be examined not only by your barrister but by the other party’s barrister as well.  It is important for you to remain in constant communication and in step with your solicitor and barrister team so that you understand what is happening each day and talk to them about how the trial is proceeding. It is important to note that the judge will require you to handle the proceedings with respect and dignity.  This means wearing clothes that are conservative and respectful.  It is also important that you do not burst out with your thoughts and comments when your ex-spouse is on the stand or when his/her barrister is asking questions. You should answer questions directly and succinctly and not make personal attacks on your spouse as it is not the forum to do so, rather the judge simply wants each party to present their side so he/she can make the best and informed decision for you and your family.

4. Costs For Trial
What many couples do not realize, is that trial is extremely expensive. Leading up to the trial, there are hours upon hours of preparation by your legal team. Your legal team will often include a team of solicitors which can include partners, associates and trainees all assisting on the case. Your team may also include senior and junior barristers, depending on the complexity of your case and barristers will require their fees to be paid well in advance of the trial.  Depending on your case, you and your spouse may be responsible for fees related to experts and reports by experts on issues related to finances and the children.  There are also fixed costs to consider as well, including fees for document preparation such as photocopying and filing of documents and the related court fees. Finally, if you are unable to succeed at trial and are the losing party, you may also be responsible for the fees and costs incurred by the other party.  Thus, you could potentially be responsible not only for your own fees and costs, but the fees and costs of your ex-spouse.  The costs for trial can be overwhelming and should not be taken lightly.  You should also consider that if you or your spouse lose at trial, you may have an opportunity to appeal and this too will be extremely costly as you will remain in the litigation process and continue to incur fees for an appeal.  Thus, it is something to carefully consider before deciding to move forward with trial.

5. Can You Stop Your Trial?
Like a divorce, a trial can also be stopped before it goes forward. Your solicitor should be speaking to you about options to prevent the trial train from moving forward at epic speed.  Other options that you could consider to stop a trial from going forward, is mediation, private dispute resolution with a judge or retired judge, or even sitting down informally with your ex-spouse and coming up with an agreement that works for you both preventing potential loss as a result of a trial.

Sometimes trial cannot be avoided especially if you are in a heavily litigious divorce and are dealing with a difficult ex-spouse. However, if there are certain issues you can compromise on and work on resolving with your ex-spouse, do so and put as much attention and effort into a resolution as trial can have devastating emotional effects on you and your children.  The time spent to prepare for trial is also time that cannot be returned to you so it is important to consider all of this before you forge ahead with a trial.

Offers of Settlement

Divorce can be overwhelming for each individual involved, to the point where it can sometimes feel as if you’re on a bullet train and cannot get off. It is important for you to know however, that despite where you are at in your divorce, there is always opportunity to come to an agreement with your spouse and settle differences without Court intervention.  One option to consider during any stage of the divorce process is an offer of settlement.  Let’s take a look at offers of settlement and what you should consider before making an offer:

1. What Is A Settlement Offer?
A settlement offer is a letter sent to your spouse in a divorce setting out proposals for the resolution of issues that are in dispute. This can include issues in dispute including ancillary relief, custody and division of property and any other issues that are specific to you and your spouse.  A settlement offer can be sent as an “open” offer which means it can be submitted to the Court at any time or it can be sent “Without Prejudice” and are not admissible in evidence in Court proceedings.  If your settlement letter is marked “Without Prejudice, Save as to Costs” it is not admissible in evidence in Court proceedings except when it’s related to the issue of costs.  This is discussed further below under “Calderbank” offers.

2. Why Are Settlement Offers Beneficial?
Sending a settlement offer to your spouse can be beneficial because it sets a basis for resolving issues in dispute. Even if your spouse does not agree to the proposals, it can be a starting ground to discuss the issues further and try and come up with a resolution that you can both be happy with.  Settlement offers can also be beneficial if you and your spouse want to attempt to resolve issues in dispute with or without continuing to move forward with the Court process which can be timely and very expensive.  It is important to remember that when sending out settlement offers, that you speak to your solicitor to assist in preparing an offer that is reasonable and practical.

3. What Are Calderbank Offers?
You may have heard about “Calderbank” offers. Calderbank offers are sanctioned offers and refer to “Without Prejudice, Save as to Costs” offers of settlement.  This means that when a case is brought before the Court, a Judge in his or her discretion as to costs, may take into account an offer expressed as a “Calderbank” or “Without Prejudice, Save as to Costs” letter.  It is important to discuss this with your solicitor as to the timing of Calderbank offers as they can play into your litigation strategy during the divorce proceedings.  Many times, Calderbank offers are sent by a party before a substantive hearing where issues will be dealt with by the Court.

4. Offers in Good Faith:
A settlement offer should be reasonable and practical and more importantly, made in good faith. The Court in Hong Kong stress the importance of negotiating in good faith and an offer of settlement is your attempt to negotiate. Negotiations should be done in a constructive manner and it could result in adverse consequences including costs if it is not conducted in good faith.  Good faith includes cooperation between the parties, exploring reasonable settlement options and engaging in constructive discussion.  Ignoring settlement letters or failing to provide substantive responses is not helpful and could result in adverse consequences.

Finally, If you have a solicitor who does not encourage good faith in your settlement attempts, it may be time to consider a new solicitor as solicitors can play an important role in encouraging settlement and resolution.

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