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

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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.

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.

4 Questions To Ask Your Divorce Solicitor

In a divorce, there are a million concerns that are swirling around in your head as you embark on this daunting and overwhelming process. One of the ways to ease your concerns is to be educated about the divorce process, and this requires you to ask the right questions before you begin this journey.

In your divorce journey, there are benefits to consulting with a solicitor to obtain the answers you need for your divorce. So what kinds of questions should you ask a solicitor before you get started?

1. What Costs Can I Anticipate? A divorce is a costly process. Even if you are a multi-millionaire with endless resources of cash, the costs associated with divorce should still be a concern. Your goal is to save your money and use it for you and your family going forward, and not necessarily on legal fees and unnecessary litigation. Each and every law firm will have its own legal fees and costs structure so you need to ask how that fee structure works so that you are aware of how your money will be spent and you can then plan to put aside necessary funds for the divorce process.

2. What Exposure Do I Have Related to Maintenance? One of the main issues you will want to discuss in an initial consultation is your exposure for maintenance for your spouse and/or your children. Whether you are the payor or payee spouse, you will want the solicitor to explain how maintenance is determined by the Family Court in Hong Kong and if possible, give you a general idea of what your exposure is based on the information you provide to the solicitor. It will be important to bring as much financial documentation/information with you to your initial consultation so the solicitor can review your family’s overall financial picture.

3. How Is Child Custody and Care and Access Determined? If you are concerned about child sharing, ask the solicitor what the Family Court will consider when making a determination related to child custody and care and access. It is also a good idea to be transparent with the solicitor on how childcare is currently shared between you and your spouse and what you envision or wish it to look like upon a divorce. Your solicitor can then set out a plan with you on how to achieve your goals with respect to child custody, care and access.

4. What Information Is Needed From Me? When you are consulting with a solicitor, you should be provided with helpful resources on how to get started, in addition to a list of information that you will need to gather to prepare for the process ahead. Initially you will be required to provide a lot of information regarding the children and financial disclosures in order to submit to the Family Court. These documents are mandatory in order to prepare for the process necessary to divorce.

What they say is true, “knowledge is power” and by asking the right questions, you will be educated and armed with information that is beneficial in helping you meet your goals and moving your case towards resolution.

Your Legal Rights To Relocate Your Child

In our previous post, we discussed the importance of a well-thought-out plan before you decide to move your child away to another country. Whilst it may be tempting to romanticize the idea of a fresh start, it is important to refrain from jumping the gun and instead reflect upon the effects of a relocation on your child and your ex-spouse.

Unless you and your ex-spouse agree to a relocation, the relocation process will be costly and time-consuming once the Family Court is involved in the decision-making process. Relocation applications are taken very seriously by the Family Court in Hong Kong. Thus, before you decide to relocate, it is prudent to become knowledgeable as to what the Family Court will consider in making its decision regarding your desire to relocate. Thus, it is especially important that you retain a solicitor to discuss a relocation.

1. Welfare of the Child: In Hong Kong, the welfare of the child is the paramount consideration and in Hong Kong, the Family Court will ask important questions before making a decision: First, is the removing parent’s application genuine? Second, is the removing parent’s application realistic? See Payne v Payne [2001] EWCA Civ 166 and also Z v XWN [2018] 3 HKLRD 644. With respect to the first question of concern, the Family Court will look at whether the removing parent’s motivation is genuine and that the removal is not for selfish reasons or to exclude the other parent from the child’s life. The Family Court will also look at whether the decision to remove the child is well-researched and that the proposals in place for the child are practical. Practical considerations can include schooling and proximity of extended family allowing the child a support system. With that being said, ask yourself: Where will my child attend school/daycare? What community will we plan to live in? What family and friends will my child be surrounded by and what support system do I have in place? These are things to consider because the Family Court will consider these factors when deciding what is in the best interests of your child. Once the Family Court considers the removing parent’s motivation and practical considerations for the removal of the child, the Family Court will then look at the opposing parent’s reasons for the opposition. Here, the Family Court will also look at the opposing parent’s motivations and the extent of detriment the opposing parent will face if the application is granted for the other parent to remove the child. The Family Court will also consider the detriment to the removing parent in the event the application is refused and what it would mean for him/her. It is important to remember that whilst all of these factors will be considered by the Family Court, it will all be considered in light of the welfare of the child.

2. Your Personal Plans: In keeping with the theme of the welfare of the child, the Court will likely request detailed information regarding your personal plans as well. Your plan is important because it directly relates to the welfare of the child. For example, what type of employment do you have lined up once you move and how will this help you support yourself and your child? Are you moving for personal reasons such as a new marriage? Are you pregnant and your new husband lives in a different city? These are all factors the Court may take into consideration when making its final orders so the more information you can provide the Court, the better.

3. Frustration Of Contact: As noted above, one thing you will want to reflect upon is the reason behind your decision to move with your child. Are you trying to frustrate your child’s contact with your ex-spouse? If that is your goal, you may want to think twice before you file a motion for a relocation because it is likely that your motive will become transparent through court proceedings. Once the Family Court finds that you are moving to frustrate contact with your ex-spouse, it will play into the Family Court’s decision to allow your relocation.

Make an informed decision that is based on what you know to believe is in the best interests of your child as this will be the Family Court’s paramount consideration when ordering a relocation. Finally, it is important to note a few things as we end this article: First, there is no presumption of favour just because you are the primary caretaker of the child. Second, remember that you cannot unilaterally remove your child from Hong Kong without written consent from the other parent or leave of the Court. If you attempt to remove your child without the other parent’s consent and he/she becomes aware of this, the other parent could easily serve an order on the Director of Immigration to restrain your child from being removed from Hong Kong. Any questions you have about a relocation should be carefully discussed with your solicitor so you are aware of all the risks involved.

Finding The Right Solicitor In A Divorce

When a decision is made to divorce, you are forced to become familiar with the legal world and what may seem like, a legal minefield. This is not an easy task given the legal jargon and technicalities involved in filing for divorce and navigating it until the end. Whilst some couples attempt to navigate the legal process on their own, others choose to hire legal representatives (solicitors and barristers) to assist them and take charge of the legal process. Finding legal representation should not be taken lightly because your relationship with your solicitor will last for a significant period of time and may even extend beyond the actual divorce if there are post-divorce issues to be ironed out.
Here are tips on what to look for when searching for the right divorce solicitor:

1. Do Your Research: Before you decide on a solicitor to assist with your divorce, conduct your own research on who you might want to hire. Conduct an online search and see if any articles or reviews have been posted about the solicitor or his/her law firm. Take your research outside of the Web and ask friends or extended family for a referral. Word of mouth is a great resource. By chatting with others in your community, you will get a better sense of the solicitor’s reputation in the community and whether he/she will be a good fit for you and what you are hoping to achieve in your divorce. Some solicitors have a more aggressive approach to divorce, whilst others are more mediation/settlement minded. You should consider how you want to approach your divorce and your goals and whether it aligns with your solicitor. You should also consider the financial impact a divorce will have on the matrimonial pot and approach your solicitor with that in mind as legal fees will skyrocket the more you litigate.

2. Ask Questions: Before you sign an engagement letter to hire your solicitor, do not be afraid to ask a lot of questions. How does the solicitor bill for his or her work? What is the solicitor’s hourly billing rate? Does the solicitor have assistants and paralegals? If so, will they be doing a significant portion of the work on your case? What are the hourly billing rates for assistants and paralegals working on your case? These questions are important because it will help you determine if you can afford the solicitor’s services going forward. Divorce is a long and expensive process. The initial retainer fee/costs on account will only get you so far and often, you can expect to pay additional fees and costs going forward. An initial meeting with the solicitor is also important because you can see if you and the solicitor are on the same page and whether your personalities gel together. This will be a long working relationship so it’s important that you and your solicitor work well together.

3. Don’t Be Afraid To Make Decisions: If you’ve hired a solicitor and come to find you are not happy with the relationship, do not be afraid to first discuss the issues you have with your solicitor in a transparent and frank conversation with your solicitor. If that is insufficient, then do not be afraid to change your solicitor and find a solicitor that is right for you. While you do not want to get into the habit of switching solicitors on a frequent basis, it is not unreasonable to change your representation when there is a true breakdown in the relationship between you and your solicitor. You may be hesitant to switch your solicitor after investing so much time and money, but remember you are likely to save more money in the long run with the right solicitor and get the results you desire with the right partnership.

Finding the right solicitor to handle your divorce is crucial. The right working relationship will determine the trajectory of your divorce, so make an informed decision before you navigate the legal landscape.

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