Form E Disclosures

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Form E Disclosures

When you file for divorce in Hong Kong and proceed through the court system, there are a number of steps and forms you need to fill out as part of your divorce. One of the key disclosure documents you must fill out is a Form E.  A Form E is a disclosure document which outlines your assets and liabilities thus providing your ex-spouse and the court with full transparency of your financial status with supporting financial documents. In the Form E, you will need to fill out all the details of your financial status including your income, property, assets and liabilities.  This document is signed under oath so it must be a true statement as a false statement may then be a contempt of court. In the event you and your spouse come to an agreement over the finances without court intervention, you both may be spared from exchanging a Form E if it is mutually agreed to waive the exchange of such disclosures. If however, you proceed through the court system and litigate your divorce, a Form E will be mandatory and you will have to exchange this disclosure document with your ex-spouse.

Let’s go through a Form E so you have a better idea of what is asked in the document and what information you must provide:

Part 1: General Information: In Part 1 of the Form E, you will need to provide general information such as your full name, birthdate, date of marriage and employment information. In this section, you will also need to provide your date of separation, whether you intend to remarry and information about your children such as their birthdates and whom the children currently live with. It is in this section that you can provide the current educational arrangements for the children and what you propose for future arrangements and if there are any maintenance arrangements or orders for maintenance between you and your spouse.

Part 2: Assets and Liabilities: In Part 2 of the Form E, you will need to provide information about your place of residence and specify whether you rent or own the property. You will need to provide information on whether you currently live with others including your new partner and children, whatever is applicable. If you own property in Hong Kong or elsewhere outside of the jurisdiction, you must provide this information including any details about the property such as mortgage/legal charges against the property, your estimate of the current property value and title information. As part of your assets, you will also need to provide bank details in Hong Kong and in any other jurisdiction, investment accounts, shareholding/beneficial interest in companies, directorships or any other businesses and also any insurance policies and pensions/MPF which you may have an interest in. Valuable personal items are also part of your asset pool so you will need to detail these items such as cars, boats, art and jewelry. It is important to note that if you hold cryptocurrency, this is also disclosable and you must provide information/supporting documentation about any and all crypto accounts.  In addition to assets, you will also need to detail liabilities in detail including loans, revolving credit and credit card charges.

Part 3: Income: In Part 3 of the Form E, you will need to provide details of your income including base salary, bonuses, commissions and any allowances provided by your work. If you receive income from any other source, this is where you will need to provide the information and supporting information.

Part 4: Current Monthly Expenses: Part 4 of the Form E is where you will need to provide a complete breakdown of your monthly expenses. In this section, the Form E guides you through each area of expenses and lists out different types of general expenses that you will likely have such as meals at home, transport, insurance premiums and other expenses related to the children such as tuition, holidays and clothing/shoes. In this section, you are also asked to provide a list of anticipated future expenses and this is a good opportunity to list out what changes are in store whether there will be an increase or decrease in expenses.

Part 5: Other Information: In Part 5 of the Form E, you will be given an opportunity to provide details as to whether there has been any significant changes to your assets during the last 36 months and this includes assets both in Hong Kong and elsewhere. This is where you will have an opportunity to explain any major changes that you have experienced with your income or loss of assets through special circumstances. You will also be given an opportunity to explain whether the conduct of either party should be taken into consideration.  It should be noted that this is only taken into consideration in exceptional circumstances however, the court does provide you an opportunity to provide such details in this section.  Additionally, you can also explain the standard of living during the marriage enjoyed by yourself and the children and any other circumstances which could significantly affect the extent of financial provision that should be made by or for you and the children.  In Part 5 of the Form E, this is your opportunity to provide as much narrative detail as possible as to the financial circumstances of your family and what you expect/anticipate is needed in order to maintain the status quo.

Part 6: Orders Sought: In Part 6 of the Form E, you will be able to list out what orders you seek from the court.  If you have hired a solicitor, this is the time to discuss with your solicitor your expectations as to what it is you seek from the divorce.

Part 7: Schedule of Attachments: Finally in Part 7 of the Form E, you will be provided with a checklist of all the supporting documents you must provide with your Form E. It is important you go through each item so that all required supporting documentation are provided as attachments.

Filling out a Form E will be daunting especially if you have representing yourself in a divorce. It is recommended that you seek the assistance of a solicitor to help you fill out this financial disclosure as this will be a key document in your divorce and will be referred to many times throughout the court process. You should be reminded that you will need to sign the Form E under oath.  Thus, the document must be truthful and you must provide full disclosure.  Before you submit a Form E, be sure to speak with a solicitor so you can be sure that all information has been correctly listed and that you are not missing anything of great importance.

Cost Considerations in a Divorce

When individuals consider divorce, the main focus is generally centered around child support and maintenance (i.e. alimony/spousal support).  What many individuals do not consider when filing for divorce are the costs related to the actual divorce such as filing fees, fees for solicitors and barristers, fees for experts and other cost considerations such as trial.

In this article, we will dive deeper into some of the “hidden” fees you will need to consider when you are planning your divorce case.

  1. Court Fees: When you file a Divorce Petition, the court has mandated filing fees for the filing of your papers.  If you have hired a solicitor to take care of all the paperwork and filing of your Divorce Petition, these filing fees and the fees incurred for clerks at your solicitor office to travel to/from the courthouse to file such paperwork will be included in your monthly bill.  You should speak to your solicitor about the court fees so you are aware of what it costs to file your paperwork. You should also be informed of the hourly rate charged by your solicitor’s clerks to travel to/from the courthouse to file paperwork and also to serve papers to your ex-spouse’s solicitors.
  2. Solicitor and Barrister Fees: If you have hired a solicitor, your solicitor will be charging you for the work done on your case. The hourly rates are generally outlined in your solicitor’s retainer agreement.  This retainer agreement should be read carefully as it will list out the terms of your agreement with your solicitor. If you do not understand the agreement, you should ask questions so that you are fully aware of the terms before you sign the agreement.  In addition to the fees incurred by you for your solicitor, you may also need to hire a barrister for your case if you proceed to a hearing and/or trial.  Generally speaking, a barrister is hired by your solicitor firm.  Therefore, your barrister will bill your solicitor firm but these fees are then charged to you in your monthly bill.  You should have a discussion with your solicitor before a barrister is hired on your case, so that you are aware of your barrister’s fees and what you will owe for their work on your matter.
  3. Fees for Experts: In the more complex divorce cases, you will need to hire experts.  Experts can be hired for various reasons including valuations for real property, businesses and valuable items such as art and jewelry.  Experts may also be hired for tax issues or issues related to trusts.  Experts may also be called upon for child custody cases where a psychological evaluation of the children are needed.  Another example of a third-party “expert” may be a parent-coordinator who assists you and your spouse with child custody issues.  If your case requires an expert, there will be costs associated with the hiring of these experts.  Generally speaking, both parties would be required share the costs of the hired experts unless an agreement is reached otherwise. Similar to barrister fees, the experts are hired by your solicitor firm. Therefore, your experts will bill your solicitor firm but these fees are then charged to you in your monthly bill.  Before you agree to retaining an expert for your case, it is important that you speak to your solicitor about the fees associated with the expert so you have full transparency about what you will owe for these third-party costs.
  4. Fees for Hearings/Trial: When you are going through a divorce, there will be many hearings leading up to a trial.  For example, any time you or your spouse file an application, a hearing will be set by the court.  In addition to these hearings, as you go through the divorce process there may be other mandated hearings that you have to attend such as a children’s dispute resolution hearing or a financial dispute resolution hearing. If your case is set to go to trial, you will also generally be required to attend a pre-trial review hearing in preparation for trial.  Trial itself can last several days depending on the complexity of your case. It is therefore important to discuss these anticipated costs with your solicitor so you know how much it will cost you depending on what route you will take.  Many times, individuals will come to the conclusion that it is much more cost-effective to compromise on key issues and come to an agreement with their spouse rather than move forward with hearing after hearing and then ultimately a trial as hearings and trial is extremely expensive.  If you move forward with a trial, there will be high costs not only for your team of solicitors but also the barrister(s) and experts involved in your case. For many litigious and complex cases heading to trial, your legal team can consist of 5 to 10 individuals who many times, all charge on an hourly basis.
  5. Other Miscellaneous Fees: In addition to the above-fees, you should also discuss with your solicitor whether there are other “hidden” fees you might not be aware of. For example, you will be charged by your solicitor firm for photocopying, faxes, and service of documents. Ask for transparency when you hire a solicitor so you are aware of all the fees that you will be charged each month.  Most of this is outlined in your retainer agreement so again, it is important for you to read the entire retainer agreement before signing the document.  It is also important that when you receive your monthly bill, you read through the bill rather than gloss over it.  If you have questions about your bill, speak to your solicitor so you can clarify what the charges are for.

It is important that you take charge of your finances during a divorce and this includes the fees and costs that you will be responsible for in your divorce. It is therefore imperative that you have full transparency of what you are being charged and what the anticipated costs are.  Do not be afraid to speak to your solicitor about costs as this may determine the course of your divorce.  If you are looking to resolve matters quickly without additional costs, it may be a good idea to work on a settlement with your spouse without the need for court litigation.  Mediation is a wonderful alternative to court litigation and should be considered!

 

Spotlight Profile – Jacky T. K. Lai, Mediator

In this spotlight profile, we are speaking to Jacky T.K. Lai, a mediator and barrister at IceHouse Chambers in Hong Kong.  Jacky is a mediator and mediation advocate with experience in over 850 cases that includes disputes involving children and finances.  Jacky has also utilized his expertise as a mediator to train others in the field (as Trainer with Hong Kong International Arbitration Centre (HKIAC), Training Qualifications UK (TQUK)/The Office of Qualifications and Examinations Regulation (Ofqual) and Hong Kong Professional Mediation Association (HKPMA), and as Coach with many other institutions).

Jacky, thank you for taking the time to speak with us today.

Can you tell us a little bit about your background and training?

I am a barrister called to the Bar in June 2007, mediator, arbitrator and lecturer on mediation and negotiation topics for universities and mediation institutions.  I like to mediate on various sorts of cases including matrimonial matters.  I find resolving conflicts through interest-based negotiations very satisfying, and I am grateful for the trust that I receive from the parties and learned friends.

I received my general mediation training in 2008 from the Accord Group in liaison with HKUSPACE, and my matrimonial mediation training in 2010 from Hong Kong Catholic Marriage Advisory Council (CMAC).

You have considerable expertise in your role as a mediator and as a mediation advocate.  First, can you tell us why you advocate mediation first in any legal dispute?

Parties usually have too much information but lack of insight.  With their entrenched long-time hatred towards one-another they become too emotionally entangled and entwined into an “Avenger” mentality, thereby losing sight of other dimensions and bigger goals in their lives.  They often get tunnel-vision.  Mediation gives them an opportunity to zoom-out and to hear from each other.  Once communication starts, then understanding at a deeper level can commence.  Of course, the parties may still choose not to settle, yet it is ensured that it is an informed decision, and not because of a lack of communication nor mutual understanding.

You have worked in numerous mediations and in various disputes not only matrimonial disputes. Is there a common theme that you notice in all your mediations that results in a successful mediation? Is compromise the key element to a successful mediation?

The common themes are: broader outlook on the disputes, new dimensions and new observations on life and the issues, a more realistic and a more objective assessment of the law, the facts and the evidence, as well as the perspectives of the opponents.  Sometimes, they just need a platform, a facilitator, a face-saving setting to settle the case.   We mediators are the catalyst in the sessions.

Compromise is NOT a key element to a successful mediation.  Compromise is only a minimalist approach towards settlement.

What works in mediation is: Collaboration. Understanding. Communication. Objectivity. Positivity.  Rethinking.

What can couples do to prepare for a successful mediation?

Have a pre-mediation meeting with a good mediator accompanied by their solicitor/counsel and supported by a trusted and beloved one.  The pros and cons, the costs and benefits and the strategy and tactics, are all re-examined thoroughly, in a safe environment, and the couples are empowered to make decisions.  Of course, trust and rapport are being built throughout the process, and the trauma, pains, suffering and fears are being acknowledged and addressed as well.  If the wound is not healed, at least antiseptic is applied and a bandage is attached to it.  Active listening and empathy are the key elements.

Through your experience, you have come across mediations where a resolution is simply unattainable.  In your matrimonial mediations, what has been the key element of an unsuccessful mediation?

Inadequate insight, mutual understanding, active listening, rethinking, new dimensions or outlook of everything else are common themes.  Tunnel-vision and inadequate wisdom and courage to walk a new path, objectivity, positivity are also common themes.  Many times, the root is insufficient love towards themselves and the children.

In a nutshell, what is lacking is the absence of the essential elements of interested-based negotiations.

 

About Jacky Tsk Kin Lai, Mediator and Barrister at IceHouse Chambers
Jacky T.K. Lai, a mediator and barrister at IceHouse Chambers in Hong Kong.  Jacky has been a mediator and mediation advocate in over 850 cases that includes disputes involving children and finances.  Jacky has also utilized his expertise as a mediator to train others in the field.
Jacky has been a barrister-at-law in private practice in Hong Kong since 2007. He practices in civil and criminal litigation as well as mediation. Jacky received his Bachelors Degree in Economics and LLM from the University of Hong Kong, MBA from the Chinese University of Hong Kong, and LLB from Manchester Metropolitan University. He obtained his HKIAC Accreditation as General Mediator in 2009 and Family Mediator in 2012 by the Hong Kong International Arbitration Centre (HKIAC), and the Hong Kong Mediation Accreditation Association (HKMAAL) Panels of General and Family Mediator since its inception in 2012.
Jacky has been a member of the HKIAC Users’ Council since 2009.  He is the Chairman of the General Mediation Division (GMD) under the Hong Kong Mediation Council and person-in-charge of the Council’s Membership Committee.  He was the Honorary Secretary of Hong Kong Mediation Council (HKMC) under the HKIAC last year, and member of HKIAC’s General Mediation Interest Group. He acted as Vice-Chairman of the HKIC Family Mediation Interest Group, Person-in-charge of Building Management Sub-Group and Person-in-charge of Labour and Employment Mediation Sub-Group. An HKMAAL accredited mediator (General and Family), he has served as a mediator in hundreds of cases.
Jacky has a wealth of teaching, coaching and judging experiences with many universities in Hong Kong with particular emphasis on Mediation and ADR. He is Head Trainer and Chief Assessor of mediation course for Training Qualifications UK, Office of Qualifications and Examination Assessment (TQUK/ Ofqual) and Assistant Head Trainer of HKMAAL 40-hour curriculum, Mediation Subject Expert of Hong Kong Council for Accreditation of Academic and Vocational Qualifications and International Mediation Competition Coach and Judge of International Chamber of Commerce, Professional Mediator on many mediation panels and mentor mediator for the Joint Mediation Helpline Office.
黎子健先生  LLB, LLM (HKU), BSocSc, MBA, FHKI Arb, MCIArb
黎先生自 2007 年起在香港擔任私人執業大律師。他的執業領域包括民事和刑事訴訟以及調解。 黎先生在香港大學獲得經濟學學士學位和法學碩士學位，在香港中文大學獲得工商管理碩士學位，在曼徹斯特都會大學獲得法學學士學位。他分別於 2009 年和 2012 年獲得了香港國際仲裁中心(仲裁中心)認可的一般調解員和家事調解員資格，並於 2012 年香港調解資歷評審協會有限公司(調解資歷評審協會)成立起獲得其一般調解員和家事調解員資格。
黎先生自 2009 年起擔任仲裁中心益友會成員，也是仲裁中心轄下的香港調解會(調解會)的榮譽秘書，且任仲裁中心一般調解興趣小組成員。他曾為仲裁中心家事調解小組的副主席、物業管理調解推廣小組負責人和勞工及僱傭關係推廣小組負責人。 作為調解資歷評審協會認可的調解員（一般和家事），他曾在數百個案件中擔任調解員。
黎先生在香港多所大學擁有豐富的教學、培訓和評審經驗，尤其重視調解和其他替代性糾紛解決方式。 他是英國特許資歷培訓處/評核及考試規例局認可的調解課程的首席培訓師和首席評估員、調解資歷評審協會40小時課程的助理首席授課者、香港學術及職業資歷評審局的調解事項專家、 International Chamber of Commerce國際調解比賽教練和評委、多個調解小組的專業調解員和 聯合調解專線辦事處的導師調解員。

5 Important Things to Do Before You File for Divorce

When a couple decides to divorce, it is usually never a spontaneous decision but rather a long evolving process that has culminated to this point over a period of time. It is important that during this process, you are prepared should you and your spouse decide to file for divorce.  There are many things you can do to prepare for divorce and in this article, we will provide you with some useful tips on what to consider ahead of a divorce:

  1. Thoughtfully Consider Whether Divorce Is Right For You: Before you jump into a decision to divorce, it is important that you thoughtfully consider whether divorce is the right option for you. Many couples for example, choose separation over divorce especially if there are health insurance or religious reasons to consider.  Divorce is a life-changing decision and it should not be made spontaneously but considered over a period of time after you have had an opportunity to consider what divorce would mean for you and your children.  During this time, you may want to speak to a therapist or even try couples counseling in an attempt to either solidify your decision to divorce or reconsider divorce.
  2. Have Thorough Discussions With Your Spouse (and Children) and Your Solicitor: Before you divorce, you may want to have a series of discussions with your spouse about whether divorce is the right decision for you as a couple and for the family.  In your discussions, you may want to discuss whether divorce is the right option for you as a couple and if you do divorce, how would that look.  For example, in your discussions with your spouse, you could talk about how you want to divide finances or how to split care and control of the children.  Generally speaking, if you have mature and reasoned discussions with your spouse prior to the filing of a divorce Petition, there is more possibility that your divorce will not be litigious since you and your spouse have discussed the divorce beforehand. If you surprise your spouse with divorce papers, there may be shock and feelings of betrayal involved which may not bode well going forward in the divorce. Additionally, you may want to schedule an initial meeting with a solicitor to discuss divorce and what it would mean for you to file for divorce and discuss your legal rights and any concerns/questions you may have related to a divorce.  The solicitor will be able to guide you as to the timing of your divorce petition and the things to consider when filing for your divorce petition. This initial information-gathering meeting is important so that you are prepared for what’s to come.
  3. Gather All Necessary Information/Documents For Your Divorce: If you have decided to divorce, you will want to start organizing your life.  For example, this is now the time to gather all the necessary information/documentation related to your finances so that you are aware of your financial health.  You will need to disclose this information to your solicitor who will then prepare all the necessary financial disclosure documents for the Court.  If you do not have this information, it will be harder for your solicitor to prepare the financial disclosure documents that are necessary in your divorce.  It is also not beneficial for you to be in the dark about your finances as you will need to prepare your life post-divorce and this includes being financially independent.  In the event that you are filing a non-molestation order against your spouse, this is also the time to gather all the necessary documents and photos to support your allegations against your spouse.  If you have children, it will be important to collect all the information/documentation related to their daily schedule and any other pertinent information you believe is necessary related to care and control.
  4. Consider Your Wishes For The Divorce Regarding Finances and Children: After you have spoken to your spouse and had the initial information-gathering meeting with your solicitor, this may now be the time for you to consider what you want from the divorce.  How do you want to move forward with the divorce? Do you want to attempt mediation first? Do you and your spouse already have an agreement in place prior to a divorce? Have you reviewed your finances to consider how much maintenance (if you are entitled to it) you will need to pay for your day-to-day needs and the needs of the children? How much time do you want with the children and/or how much time will you agree to your spouse having with the children? These are a few of the important questions to ponder upon and discuss with your solicitor.
  5. Make Necessary Plans For Your Life Post-Divorce: Another aspect you should thoughtfully consider is how you want your life to look post-divorce.  Do you plan to remain living in Hong Kong or do you want to relocate to another city/country? Will you propose to take the children with you? How much money will you need to sustain your lifestyle each month? Will you need to work or switch jobs? This is your time to brainstorm how you want to plan your life once you are divorced and to start making all the necessary plans to reach those goals.  Your solicitor can assist you with this process and provide you with guidance on how you can reach your goals. You may also consider retaining a financial planner to help you with your finances and budget accordingly.

With all the tips above, the key component is open communication with both your spouse and solicitor and also knowing what you want both in a divorce and thereafter.  Whilst it may be difficult, divorce should be viewed almost like a business transaction as you and your spouse are each now negotiating the best deal for oneself.  It may be easy for emotions to get involved, but the less emotion involved, the easier the process will be.  Speak to your solicitor who can help you through this challenging journey.

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.

 

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