Prenuptial Agreements In Hong Kong

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Prenuptial Agreements In Hong Kong

A common question among those planning to marry is whether a prenuptial agreement is a necessary prior to marriage.  This is dependent on your circumstances but before we delve into whether it is necessary and enforceable in Hong Kong, it is important to know what exactly a prenuptial agreement is.

A prenuptial agreement is a contract between you and your fiancé as you both contemplate marriage.  In a prenuptial agreement, you and your fiancé outline terms that you both agree in relation to issues such as the division of assets and debts upon a divorce.  These agreements may also deal with maintenance for your spouse upon divorce as well.

It is important to note that prenuptial agreements generally do not cover issues related to child custody and child support/maintenance.

Generally speaking, if you are young with minimal assets and this is your first marriage, a prenuptial agreement may not be needed.  If your fiancé has substantial assets that he/she would like to protect in the unlikely event of a divorce, then a prenuptial agreement may be a good idea, giving you and your future spouse peace of mind.

The question then is whether prenuptial agreements are enforceable in Hong Kong.  Hong Kong generally follows UK law and in the UK, there was a case called Radmacher v. Granatino in 2011 whereby the UK Supreme Court declared that the Court should give effect to these types of agreements on the basis that it is freely entered into by each party with an understanding and appreciation of its implications unless of course it would be unfair to do so in the circumstances.  Following this important decision in the UK, the Hong Kong Court of Final Apeal in a 2014 case called SPH v SA stated that the principles in Radmacher should be regarded as the law in Hong Kong.

With that being said, it is important to note that in Hong Kong, this is still a developing area of law and there is no set decision as to whether a prenuptial agreement will be held enforceable in a divorce in its strictest sense.  Unlike jurisdictions like California where the Court will take into consideration the terms of a prenuptial agreement, Hong Kong law is still very new and it effectively depends on the circumstances of each individual case.

It is therefore exceptionally vital for you to consult with a professional matrimonial lawyer who is well-versed in such a subject.  Be sure to provide as much detail to your solicitor so that he/she can provide you with his/her best advice with respect to whether a prenuptial agreement would be your best option in your circumstances because of the importance of having a well-drafted and detailed agreement to protect you in the event of divorce.

Calling In Experts For A Divorce

Who Are The Experts?

Experts are individuals with education, experience and knowledge in a specialised area. They may be called upon when there is an issue in a divorce that the Court needs specialist input on. The Court will consider the expert’s advice and/or opinion when deciding an issue.

What Types Of Experts Are There?

There are many types of experts in a divorce. Here are some of the most common types:-

  1. Psychologists:  Psychologists are regularly called upon for children matters. They will analyse the situation and interview the parties involved before providing a professional opinion on the effect of divorce on the children to the Court. The psychologist will then recommend a child custody and visitation plan based on their analysis.
  2. Vocational Expert:  Vocational Experts are usually engaged in cases where one of the spouses has not worked for a long time as they might have given up their career to look after the family. There may therefore be a need to assess his or her current and future earning ability for the calculation of child and spousal support. A vocational expert will evaluate a spouse’s education and skills to determine their earning capability.
  3. Forensic Accountants and Financial Experts:  Forensic accountants are experts in discovering a spouse’s hidden assets and/or hidden sources of income. For example, if one spouse own a business, a financial expert could help in assessing and providing the Court with a more accurate value of the business. Such information helps to build an objective financial picture of the spouses’ assets for division and for the calculation of child support and spousal maintenance.
  4. Real Estate and Antique Experts:  Real Estate experts have the knowledge and skills to calculate the true market value of property. In divorce cases where high value assets are involved, antique experts may be retained to value certain items or collections. Again, this provides the Court with a more accurate financial picture of the spouses to consider when deciding on the question of asset division, or the calculation of child support or spousal maintenance.

While experts may be beneficial to your case, it is important to note that they may be costly and you may have to bear the costs by yourself. You should therefore discuss the need for an expert with your lawyer to see whether the benefits of hiring an expert outweigh the costs of the service that they provide.

Handling The Financial Side Of A Divorce

How Are The Financials Handled In A Divorce?

Divorce  will generally entail the  division of finances and  assets of the parties. Sorting out finances can be one of the most daunting aspects of a divorce, not only because this can be quite complex depending on the nature of the assets of the parties, but also as each individual is going through the emotional process of separation, which is an understandably difficult and delicate time.

In the Family Court, once a Divorce Petition is filed, the division of assets begins with the submission of a legal document called the “Form E”. The Form E sets out each individual’s respective financial position. Each individual is required to give information on the following:-

  1. Assets – matrimonial home, bank accounts, shares in companies, stocks and bonds, insurance, mandatory provident fund and trust interests;
  2. Liabilities – credit cards debts, loans;
  3. Income – monthly income, government allowances, benefits in kind; and
  4. Expenses – currently monthly expenses and anticipated future expenses.

Each party has the duty of full and frank disclosure when filling out their Form E, which is also verified with a signed statement of truth. Each party must be honest and disclose their financial position fully. This includes disclosure of assets located outside of Hong Kong, together with supporting documents such as bank statements, credit card statements and tax statements, mortgage and loan documents and any other relevant financial documents.

The Family Court then sets a date for a First Appointment Hearing. This is a hearing in which the Court will direct the individuals on how to proceed with the divorce application. Form Es are exchanged with your spouse not less than 28 days before the First Appointment Hearing.

Once Form Es are submitted and exchanged, each individual can then work out whether they need further information and/or supporting documents from their spouse. An individual can request more information and/or supporting documents through a legal document called a “Questionnaire to Form E”, setting out specifically what information or document is missing, or reasonably questioning issues that arise from the disclosure given in their spouse’s Form E.

The Questionnaire then needs to be provided to your spouse no later than 14 days before the First Appointment Hearing. At the First Appointment Hearing, the Court will usually direct the spouse to submit a legal document called “Answer to Questionnaire” after the hearing to answer the questions raised and/or to provide the supporting documents requested in the Questionnaire.

The shared web of finances built throughout a marriage no doubt complicates a divorce. However, there is no escape from dealing with the division of assets and you should seek advice from a lawyer on asset division as soon as possible and perhaps even engage a financial planner to organise your finances and assist with the preparation of your Form E.

 

 

How Is Child Maintenance Calculated?

Unlike spousal maintenance, the Court has wide discretion to allow maintenance for children at anytime prior to the decree or even if the proceedings are dismissed.

Generally speaking, in all matters relating to children in family proceedings, the welfare of the child/children is the first and paramount consideration of the Court. While each case will depend on its own facts, the Court, in making any determination with regard to financial orders for a child will take into account all relevant factors, which include:

  • the financial needs of the child;
  • the income, earning capacity (if any), property and other financial resources of the child;
  • any physical or mental disability of the child;
  • the standard of living enjoyed by the family before the breakdown of the marriage;
  • the manner in which the child was being (and in which the parties to the marriage expected the child to be) educated;

The Court will generally endeavour to exercise its powers so as to place the child, so far as it is practicable (having regard to the above factors) in the financial position in which the child would have been if the marriage had not broken down and each of the parents had properly discharged his or her financial obligations and responsibilities towards the child. This will be different for every case depending on the parties’ standard of living during marriage, and the financial means of each parent.

Children’s maintenance will usually involve consideration of all expenses that may be incurred by them on a daily/monthly/annual basis, such as food, their share of housing expenses, education, extra-curricular activities, clothing, gifts, and holidays. A child’s financial needs will be interpreted on a generous basis by the Court.

Once the Court arrives at an appropriate figure to reflect the monthly expenses of the child, this will be made into an Order, such that the paying spouse must pay that amount every month going forward, usually until the child reaches 18, or finishes tertiary education, depending on what is prescribed in the Court order.

It is always open to either parent to apply to the Court to vary maintenance of a child (either to increase, decrease or suspend the amount) if there has been a change in circumstance, e.g. the decrease of income of the paying party, or the increase of a child’s expenses. The Court will then consider the matter afresh and revise the sum of maintenance if it sees fit to do so.

Aside from maintenance, the Court may, on an application by either of the parents (or guardian) who has custody of the child – may make any one or more of the following orders (having regard to the means of the paying parent):

  • a payment of a lump-sum to the applicant in one amount or by instalments for the immediate and non-recurring needs of the child.
  • transfer of such property to which either of the parents is entitled or
  • settlement of such property, to the child.

These other forms of financial maintenance for children are covered in separate articles on hongkongdivorce.com

 

 

Moving Forward: Making Mutual Decisions After A Marriage Or Relationship Breakdown

By Special Contributor:  Shanna Quinn

One of life’s most stressful events is separation from a spouse or partner. Although some conflict over parenting and financial issues after the breakdown of a relationship is to be expected, it is not inevitable for disputes to be resolved in a Court of Law.

What Is Family Mediation?

Family mediation is where a professional, trained, impartial mediator helps couples, following a separation, explore options and negotiate a settlement acceptable to both parties.

What Issues Can Mediation Assist With?

 Issues that can be assisted by mediation include, but are not limited to:

CHILDREN

  • Living and care arrangements for children
  • Education
  • Relocation

FINANCES

  • Division of assets including real property, investments, savings, pensions, debts, inheritance, probate matters and house contents
  • Child maintenance
  • Spousal maintenance

DIVORCE

  • Deciding on the divorce process

Benefits Of Mediation

  • Decisions are made by the parties themselves – not by lawyers or by a court
  • It is a faster and cheaper process, avoiding lengthy court proceedings
  • The mediator is neutral and impartial
  • The process provides an informal, confidential and more personalised space to discuss and resolve issues
  • What is said in a mediation is said on a ‘without prejudice’ basis, i.e. whatever is said cannot be used as evidence in a Court. Parties can speak candidly, make and consider concessions and compromises without being worried that they will be used against them later in Court
  • Terms of a mediated agreement may be made into a binding consent order, enforceable at law
  • It can be voluntary or court ordered
  • The process is flexible in terms of whether the parties remain together in the one room or are in separate rooms
  • Legal representation is optional
  • Mutual decision-making encourages ongoing cooperation and helps lower hostility

Who Are The Mediators?

Mediators generally have legal or social science qualifications and substantial professional  experience and have undertaken specialised training. In Hong Kong there is the choice of English, Cantonese or Mandarin speaking mediators. Most mediators have been accredited by the Hong Kong Mediation Council. In Hong Kong parties have the benefit of being able to choose  a mediator, having regard to professional background and experience, cultural and ethnic background, gender and language.

Do I Need A Lawyer?

Legal representation is optional but mediators will encourage parties to seek legal advice prior to signing the Agreement. While the mediator can provide legal information to the parties and reality test parties’ options and their likely consequences, the mediator will not give the parties legal advice.

If lawyers are present it is usual that they adopt a less adversarial and more conciliatory approach in the mediation. If the lawyers do not attend the mediation, parties are free to speak with their lawyer at any time.

How Long Does It Take?

Generally a mediation can be organized within two to three weeks, if not sooner. Factors that impact on the length of time it takes to reach settlement include:

  • Whether the parties have made full and frank disclosure, particularly with respect to financial matters
  • The level of hostility between the parties
  • The number of issues to be resolved
  • The complexity of the issues to be discussed
  • Timeliness of legal advice

 What Is The Process?

While all mediators have their own personal style the process is uniform and involves:

Pre-Mediation

  • The mediator receives the referral
  • Relevant information is given to the mediator
  • The mediator has a confidential, separate preliminary meeting with each party to obtain relevant history, identify the issues and determine the best process, i.e. whether the mediation will involve joint and/or separate meetings with the mediator

The Mediation

Mediators adopt different models, i.e. some mediators prefer to have the preliminary meetings and first session on the same day. Other meditators prefer to separate the processes. Some mediators prefer half day or full day sessions while others operate on an hourly basis.

The Mediation

  • The mediator and parties together identify parties’ respective concerns and issues for discussion
  • An agenda is created to ensure all issues are addressed and prioritized
  • Relevant information is shared
  • Proposals are discussed and options are explored and reality tested
  • Parties reach a mutual agreement

Post Mediation

  • If the Agreement reached in mediation has not already been reduced to writing and signed, the mediator will prepare the written Agreement
  • Parties are encouraged to seek legal advice prior to signing the Agreement
  • Typically, the Agreement is made into a Consent Order, which is prepared by the lawyers and filed in Court.

About Shanna:  Shanna Quinn has built her career on helping individuals and families navigate disputes and conflict in a fair, equitable and conciliatory manner. Her practical approach to your situation, combined with her extensive experience as a Barrister, Mediator and Forensic Social Worker can add significant value to your case.

Shanna has been involved in highly complex and sensitive cases involving family breakdowns, relationship disputes, child protection and domestic violence orders. Shanna is able to quickly comprehend her clients’ needs, is adaptive and can deliver valuable, practical and prompt legal advice, mediation and training.

 

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