Category Archives: Family Court

Timeline For Divorce In Hong Kong

One of the more common questions we receive is how long does it take to obtain a divorce in Hong Kong? There is not a simple straight-forward answer as there are many considerations involved in such a timeline. The timeline of a divorce could be impacted by your personal circumstances but also circumstances out of your control. For example, earlier this year, the courts in Hong Kong were subject to a “GAP” (a general adjournment period) due to the Covid-19 outbreak in Hong Kong. As a result, the courts in Hong Kong were closed for an extended period of time and this caused significant delay for many individuals going through a divorce in Hong Kong.

With that being said, the Family Court in Hong Kong do have general guidelines on how long it should, practically speaking, take for cases to be concluded in Hong Kong. This is outlined in Practice Direction SL10.4 with the Family Court’s Target Time Tabling schedule. According to this Practice Direction, after a Case Management Hearing (“CMH”) hearing is listed before the allocated judge, and in cases that involve both children and finance proceedings, the target time table is as follows:

Short cases within 23 months from the Case Management Hearing;
Medium cases within 27 months from the Case Management Hearing;
Long cases within 32 months from the Case Management Hearing.

The time tabling estimates of course may vary if you are only dealing with finance issues. According to the Practice Direction SL10.4, cases involving finances only, the target time table is as follows:

Short cases within 13 months from the Case Management Hearing;
Medium cases within 17 months from the Case Management Hearing;
Long cases within 22 months from the Case Management Hearing.

It is important to note that on the issue of divorce only, if you and your spouse are not involved in a dispute on the issue of divorce and it is an undefended divorce, the timeframe from the filing of the Petition to the Decree Absolute is generally anywhere between 6 to 9 months.

It is important to speak with your solicitor about any questions you may have about the timetable for your divorce as he/she will be able to give you a better idea of how the courts are handling matters at the time of filing. The complexity of your case will also determine the timeline as to how long it will take the courts to set down key dates/hearings. Your solicitor should prepare you in that a divorce in Hong Kong is never quick. It will take time to divorce in Hong Kong and it will be an involved process that requires a great deal of patience.

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

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

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

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

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

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

What To Expect At A Divorce Trial

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

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

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

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

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

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

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

Non-Molestation Orders

One of the most recognized celebrities, Kim Kardashian has recently been going through an ugly divorce with Kanye West in Los Angeles, California. Throughout her very public divorce, Kim Kardashian has been publicly harassed by her ex and over a period of time, the harassment has extended to Kanye West publicly harassing Kim Kardashian’s new boyfriend Pete Davidson. Kanye West claims through his social media forums that he is simply trying to win Kim Kardashian back. Yet, in one of his released music videos, Kanye West’s character chops off Pete Davidson’s head.

There is much debate in the public forum about whether we should feel sorry for Kim Kardashian who is seen as one of the most privileged celebrities of all time. Yet what Trevor Noah rightly points out, is that the situation played out in social media between Kim Kardashian, Kanye West and Pete Davidson highlights the harassment that many women face when they try to leave a relationship. Even Kim Kardashian, one of the most recognized and richest celebrities cannot escape the harassment.

To date, Kim Kardashian has not filed a Restraining Order against Kanye West, although this could be an option for her in the Los Angeles County Courts. In Hong Kong, if you are met with a similar situation, you can consider filing a Non-Molestation Order under the Domestic and Cohabitation Relationships Violence Ordinance. It is important to note that in Hong Kong, domestic abuse orders are referred to as “non-molestation” orders.

The Domestic and Cohabitation Relationships Violence Ordinance applies if:

You are a person who has been molested by your spouse or former spouse
You are a person who has been molested by your partner or former partner in a cohabitation relationship, who is of opposite sex
You are a person who has been molested by a relative. A relative is defined in the Domestic and Cohabitation Relationships Violence Ordinance and should be clarified to see if the other party fits into the definition of “relative.”

A Non-Molestation Order remedy can be as follows:

A provision restraining the other party from molesting (abusing) you
A provision restraining the other party from molesting (abusing) a minor
Prohibiting the other party from entering or remaining in:
1. Your residence
2. A specified part of your residence; or
3. A specified area whether or not your residence is in that area
A provision requiring the other party, where you reside with him/her, to permit you to enter and remain in the common residence or matrimonial home of you and the other party.

If you are granted a Non-Molestation Order you may want to discuss with your solicitor about also asking the Court to grant an order that the other party participate in a program aimed at changing the attitude and behaviour that lead to the injunction.

Importantly, you may also want to discuss with your solicitor about obtaining a variation/suspension of custody/access orders especially in cases where abuse/danger is present.

If you are involved in a situation where you are being abused and/or need to protect a minor in an abusive situation, it is imperative that you keep all documents in support of the abuse including text messages, photos and any other supporting information so you can submit this evidence to the Court in your application for a Non-Molestation Order.

As in the case of Kim Kardashian, domestic abuse does not always equal physical violence, it can involve emotional and psychological abuse which should be detailed to the Court if you are seeking a Non-Molestation Order. Speak to your solicitor so he/she can assist you in obtaining the protection you may need.

Silver Linings in Divorce

It is a new year and we can never predict what lies ahead, but there are definitely many adventures to be had. If you are going through a divorce, there may be many challenges ahead, but regardless of the challenges, there is always a silver lining in every difficult circumstance.

With that being said, I have listed some of the common challenges you may face dealing with divorce this year, but alongside that I have also listed some of the wonderful accomplishments and adventures you may gain along the way:

1. Heartbreak Over A Failed Relationship. When divorce happens, there is heartbreak, especially if you are the spouse that wanted the relationship to work. Understandably, heartbreak is emotionally and physically taxing and can be magnified in divorce. You and your spouse have invested considerable time into each other and there are many dreams you both had for your family. While it is normal for individuals to go through a grieving process, this is also a wonderful time for you to focus on what is ahead. Set new personal and professional goals, think about some of the hobbies you have always wanted to master and the places you have always wanted to see, especially if Covid-19 restrictions are on its way to being eased in Hong Kong and around the world! For many of you, this could also mean a new start in building new relationships and getting back into the dating scene. Divorce is not the end and there are many wonderful experiences and memories you will encounter over your lifetime.

2. Finance Woes. Divorce can wreak havoc on your finances. For example, a court may order you to pay monthly maintenance for your spouse and for the children, which will cut into your monthly income. In a divorce settlement, you may be required to pay out a significant sum to your ex-spouse to equalize the division of assets and debts. The nest egg you saved in your retirement accounts may also be cut in half as part of a divorce settlement. While the financial pressures associated with divorce can cause great stress, this is also your chance to become empowered to take charge of your finances and create a roadmap for your future financial success. It is during this time that it would be beneficial for you to meet with a financial expert to plan a budget and manage finances following divorce. If you are the receiving party to maintenance, it is not wise to squander your monthly support cheques or your lump-sum divorce settlement with no thought to your financial future. This may also be a good time to think about entering back into the job market and should be discussed with your solicitor about how this will play into your divorce.

3. Co-parenting Rocky Road. In divorce, you and your ex-spouse will begin to co-parent. For some parents, co-parenting is easy with no issue. However, other parents find co-parenting a nightmare and have difficulty communicating with each other. Co-parenting may be difficult for parents, but this “new normal” is also very difficult for children and pets. Remember that this is difficult for everyone involved, especially when you and your ex-spouse are sparring over co-parenting issues. While co-parenting can be rocky, it is a great opportunity for you and your ex-spouse to work on communication skills with one another and with your children. Talk to your children about what the divorce means for them and how it will affect their relationship with you. Ask your children how they feel and what you can do to make the transition easier. Using this difficult situation as an opportunity to build communication bridges with your children will be rewarding in the long-run. Remember that it is important not to use your children as a weapon against your spouse during divorce proceedings. Avoid talking to your children about adult issues related to the divorce. Finally, now that a new family dynamic is being created, this is also a great opportunity to create new traditions and new routines for your family.

With the start of the new year, consult with your attorney about how you would like to proceed in your divorce and the goals you would like to see by the end of the year. Setting goals for your divorce will help you overcome every challenge you face during divorce. Once you get past the challenges, you can then look back and be proud of your accomplishments.

Timeline For Divorce In Hong Kong

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