Category Archives: Children

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.

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.

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.

Child Maintenance And Access If One Parent Leaves Hong Kong

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.

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.

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:-

United Kingdom
Bermuda
Manitoba, Canada
Saskatchewan, Canada
Ontario, Canada
Isle of Man
Australia
British Columbia, Canada
Brunei
Malaysia
New Zealand
Singapore
Solomon Islands
South Africa
Sri Lanka

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.

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.

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

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.

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.

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.

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.

Harmony House: https://www.harmonyhousehk.org/eng
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:

Stop the offender from using violence or threat of violence against you or a child living with you; or
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:

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.
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
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.
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
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: familycourt@judiciary.hk

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

An Application
An Ex-Parte Summons which is an emergency application where there is imminent risk of harm
A supporting affidavit where you outline what actually occurred and it is signed under oath
A draft order containing the orders or remedies you are seeking
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.

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.

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.

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.

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.

Custody and Access of Children of Unmarried Parents

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