Potential Risks When Litigating Relocation in Divorce

Home

Category Archives: Family Court

Potential Risks When Litigating Relocation in Divorce

For our last installment in this three-part relocation series, we are going to explore the potential risks that you may face when you decide to litigate a relocation application in the Family Court in Hong Kong. Generally speaking, it is always a better option to come to agreements with your ex-spouse rather than litigate matters in the Family Court. However, it is sometimes an impossibility you’re your ex-spouse is not reasonable and/or not willing to resolve matters outside of Court, whether it be agreements made directly with one another or through mediation. Relocation is a heated discussion between divorcing couples if there is no agreement. Thus, let’s look at some of the potential risks you should consider before you proceed and make your case before a judge. Bear in mind that these are only “potential” risks and each outcome will depend on the circumstances of your case and the judge deciding the outcome.

1. Less Time With Your Children: In our previous article, we explained that if you file an application in bad faith (eg. To alienate the other parent from the children) and this is revealed to the judge, you may expose yourself to a change in your custody and visitation orders. Thus, it is extremely important that the focus of your relocation application is the welfare of your child. A relocation application should never be filed to cause a rift or disrupt the bond between your ex-spouse and your child.

2. Money and Time Spent: A relocation application is not a quick and easy process. You may find yourself waiting for months before you are heard before the Family Court and once the process begins to move through the Court process, it could take significant time before an order is made by the judge. Moreover, solicitor and barrister fees and costs will also pile up rather quickly and you should anticipate having to pay significant fees to litigate your matter.

3. Psychological Damage: There is no definitive evidence to suggest that a relocation will have any psychological impact on your children, but there is some research out there that suggests it could have a long-term impact on a child’s psychology. This is definitely something to consider and watch out for. Look for signs of stress and anxiety in your child. Think about what kind of effect this might have long-term knowing your child’s unique personality and bond with the other parent. If anything, a relocation could potentially cause more distress than the usual divorce due to your child being uprooted.

4. Hague Convention Risks: In the event that you make a unilateral decision and you move your child to another country without consent or a court order, you will be subject to The Hague Convention on the Civil Aspects of International Child Abduction. It is considered child abduction if you wrongfully remove a child from their home state. Fleeing Hong Kong without written consent by the other parent or court order is risky business and you should seriously reconsider your decision and you should consult with a solicitor who can inform you of all the risk.

Being prepared will help you overcome any obstacles you may face in a relocation application before the Hong Kong court and should be taken seriously to avoid any significant adverse repercussions upon yourself or the children.

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.

Hong Kong Divorce: A Day In The Life – Lauren Ng, Family Law Trainee

In this series, we follow along individuals who are paving a path in the Family Law community in Hong Kong.

Today, we are speaking with Lauren Ng, family law trainee at Oldham, Li & Nie. In this article, we delve into Lauren’s foray into the Family Law arena and what it takes to survive in what is a very personal, human-focused area of law.

Lauren, tell the Hong Kong Divorce community how you started out in your career. Where did you study and what did you study in order to get to be a “trainee” in the legal field?

I did my Bachelor of Laws degree at the Bristol University in UK. I then did my Postgraduate Certificate in Laws at Hong Kong University which is a programme all prospective lawyers have to take in order to qualify in Hong Kong.

Did you always know you wanted to be a lawyer?

When I was young I actually wanted to be a zoologist or do something related to animals but I quickly realized that this was not a feasible career in Hong Kong. It was only in secondary school when I started thinking about university that I began considering law as a career option.

What made you decide you wanted to create a path for yourself in family law in particular?

While I was at Bristol University, I took the Family Law elective and the International Child Law elective which was taught very passionately by Professor Judith Mason and this really got me interested in this area of the law.

As a trainee, can you tell me what a typical day looks like and the type of work that keeps you busy each day?

A typical day for me would involve drafting various documents such as letters to the opposing side or affidavits. I would also attend client meetings with a partner where my main role would be to take notes and draft follow up emails to the client.

As of the publication of this article, you are now titled “paralegal” – Can you tell us the progression of the trainee contract, how long it lasts for and the steps after that in order to become an associate solicitor?

All trainees have to complete a 2 year training contract before they can apply to be admitted in Hong Kong to become an associate solicitor. I am currently a paralegal as I am in the interim period where I have just completed my training contract but am waiting to be admitted.

What difference/contribution do you hope to make in the family law community in Hong Kong?

Divorce is always a difficult process and I hope that I am able to contribute by helping our clients to the best of my ability and to achieve the best possible outcome for them.

Do you have any advice for other aspiring family law solicitor hopefuls?

Just to always be open to the opportunities out there and be willing to put in the hard work!

 

Thank you again for taking the time to speak with me Lauren.  We wish you all the best of luck in your future and we know you’ll make a wonderful mark in the family law community in Hong Kong!

Managing Emotions During The Divorce Process

Anger, sadness, guilt, anxiety, grief and loss are just some of the various emotions that you may be experiencing as a result of your divorce. Due to this vortex of emotions, it is not uncommon for you to act in an uncharacteristic manner.

Acknowledging and being aware of your feelings during the divorce process is the first step in managing your emotions. It is the management of your emotions that will help you overcome some of the more difficult aspects of your divorce, in addition to building a foundation of peace and harmony with your former spouse as many of you will need to co-parent throughout your lifetime.

While many challenging issues must be addressed with the assistance of solicitors and the Family Law courts, many issues couples face can be resolved without the assistance of professionals and should be considered before calling professionals for help.  It should be noted that calling your solicitor every time you experience a stressful event is extremely costly and does not lay a foundation for problem solving once the divorce is complete. That is why it is important for individuals to think creatively and with an open mind about how to resolve issues on their own so that your well-earned money can be used for a useful purpose rather than towards solicitor fees and costs.

Here are some practical applications on how to manage emotions during the divorce process in hopes that it will ease the long and difficult divorce process.

  1. Flexible Thinking:  Flexible thinking means that you do not automatically reject what your former spouse may say when new ideas are discussed or decisions need to be made. This includes having the ability to think outside of the box and coming up with alternative proposals for problem solving rather than just fighting for your first and only idea.
  2. Check Yourself:  It is always important to check yourself and your reactions to your spouse. Are you saying no because you are angry and upset over what your spouse did to you in the relationship? Are you saying no to spite your spouse? Or are you making decisions based on the situation at hand and what is best for you and your family going forward? Ask these questions before you respond to your spouse. When you make decisions that are born out of a rational and calm thought-process, you may find that you are making better decisions.
  3. Focus on the Big Picture:  Look at the big picture and write your goals down on paper so that you can keep track of what you are hoping to accomplish at the end of your divorce and beyond. For example, if your goal is to be cost conscious, you may be inclined to take steps to reduce solicitor fees such as mediation versus litigation. Mediation will require you to be more willing to compromise rather than leave all decisions up to the Family Court.  If your goal is to make the divorce a peaceful and as seamless as possible transition for your children, you may think differently about how you react and respond to your spouse in front of your children.

With all of this being said, divorce is a difficult and long process, similar to a marathon.  It is important to allow yourself to indulge in the emotions you are feeling during the process. Be sure to contact trusted family and friends and seek professional assistance from psychological experts if you need a safe place to process through your emotions. Do your best however to keep your emotions out of the divorce process because divorce is essentially a legal business transaction.

 

Copyright © 2026 Hong Kong Divorce