Spotlight Profile: Madeleine Booth, Barrister at Bernacchi Chambers

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Spotlight Profile: Madeleine Booth, Barrister at Bernacchi Chambers

In this Spotlight Profile, we are talking to Madeleine Booth, Barrister at Bernacchi Chambers in Hong Kong.  Madeleine was recently named as one of the leading family and divorce law barristers in Hong Kong for 2021 by Doyles Guide.

Over the next year, we will touch base with Madeleine to discuss various hot topics in the area of matrimonial law and delve deeper into each subject and gain insight from her, as a barrister with expertise in the family law arena.

Madeleine, we spoke to you in September 2019 (pre-Covid) and you gave us a great rundown and overview of your work as a barrister in Hong Kong, pointing out the differences between a barrister and solicitor and the work that you do.  Can you tell us how you have been since pre-Covid days and whether you have seen any changes in the matrimonial sector since the Covid-19 pandemic? 

Since the last occasion, there’s certainly been a shift in the matrimonial sector as a consequence of the pandemic. To give just two key examples, there’s firstly been an unforeseeable, dramatic impact to various industries, which has had a knock-on effect on people’s income and perhaps even resulted in one or both spouses losing their job. Due to this, there’s been a marked increase in applications for variation of maintenance (monthly sums payable from one spouse to another, and/or for the benefit of the children of the family), as payments are no longer affordable or sustainable, either because of the loss of a job or a dramatic cut to an individual’s income.

Secondly, the situation caused by the pandemic has generally been a stressful, demanding time for families; both parents and children alike in many respects, and for a drawn out, extended period of time. Tensions and frustrations, exacerbated by limitations on travel and economic pressures, have led to fractures in marriages and co-parenting difficulties that have reportedly led to an increase in applications to the Family Court, whether it be for divorce, custody applications, relocation applications, or other relief. Unfortunately, the rise in cases coupled with the Family Court’s reduced operations for several months due to Covid-19 has resulted in an increase in delays for hearings. However, the judiciary is now working harder than ever to help clear the “backlog” caused.

What types of matrimonial disputes are you seeing more of with the changing social and economic climate in Hong Kong with the Covid-19 pandemic?  Do you anticipate any changes post-Covid?

As I alluded to earlier, there’s been an increase in variation of maintenance and interim maintenance applications, meaning requests by one spouse to (generally) reduce the amount of periodic payments made by them to the other spouse and/or paid for the benefit of the children of the family. This is usually due to a change in the applicant spouse’s earnings or sudden loss of work. Hand in hand with this is the rise in enforcement procedures as, when one party can no longer afford to pay, they begin defaulting on payments as they fall due. As a result, the other spouse may take out an application to enforce these arrears of payments, whether it be by an Order 45 Rule 6 application, judgment summons procedure, or seeking a prohibition order (which prevents a party from leaving Hong Kong until the sum owed is paid).

I would also say that there’s been a rise in relocation applications, where one spouse wishes to leave Hong Kong and relocate to another jurisdiction with the children of the family. Again, these cases are on the rise because of the global shift in socio-economic environments caused by the pandemic. A party may need to relocate because of the loss of work opportunities in Hong Kong and the better prospects of work in another country. If a party loses their job, Hong Kong may no longer be affordable and they may need to relocate back to their country of origin to seek familial support, or where costs of living are lower, or for education opportunities/better quality of life for their children.

It’s been predicted that Covid-19 is here to stay for the foreseeable future. It is uncertain at present what changes will occur once the pandemic is brought under control, but hopefully greater stability for families in Hong Kong.

We want to continue our discussions with you on several hot topics in the area of matrimonial law, which we will do over the course of this upcoming year.  To begin our series discussing hot topics in matrimonial law, let’s first tackle an area of great interest for those living in Hong Kong: marital agreements.

In Hong Kong, marital agreements are taken into consideration by the courts, but it’s not a guarantee that it will be followed.  Do you see that changing going forward, especially as other jurisdictions rely heavily on these types of agreements?

There have been no developments that would suggest that the interpretation of marital agreements in Hong Kong will change in the foreseeable future. Hong Kong often looks to other commonwealth jurisdictions, predominantly the United Kingdom, when considering evolutions in the law. The shift in Hong Kong’s approach to marital agreements followed the 2010 landmark decision of Radmacher v Granatino [2010] UKSC 42, in the UK (adopted in Hong Kong in the Court of Final Appeal decision SPH v SA (2014) 17 HKCFAR 364).

Currently, the approach to marital agreements in Hong Kong is that, whilst the Court is not obliged to give effect to nuptial agreements, they should give weight to them in circumstances where it is fair to do so. What will be considered “fair” depends on the facts of the particular case. In appropriate cases, the Court will hold the parties to their agreement and will not impose terms that it would otherwise have ordered were it not for the agreement. This is consonant with the current approach of the Courts in England.

Do Hong Kong courts take into consideration cross-jurisdiction agreements?  For example, what happens if an individual who is married overseas, moves to Hong Kong and subsequently gets divorced in Hong Kong and a marital agreement prepared and signed overseas is at the center of the dispute?

The same considerations would apply to a nuptial agreement whichever jurisdiction it is made in. The Hong Kong Family Court will consider whether it is fair to give the agreement weight in accordance with the principles set out in Radmacher, including but not limited to (1) whether the parties to the agreement were properly advised; (2) whether there was full financial disclosure prior to the signing of the agreement; (3) whether there was any duress exerted on one of the parties to sign the agreement; and (4) whether any unforeseen circumstances have arisen since the agreement that would render it unjust to hold the parties to it.

Have you ever had to argue before the Courts in Hong Kong regarding a marital agreement dispute?  In order to avoid future disputes with respect to marital agreements, what tips or advice can you give to those entering into these types of marital agreements? 

Yes, I have been involved in cases regarding marital agreement disputes. A nuptial agreement is generally more likely to be accorded weight if it can be shown to be both substantively and procedurally fair. Three foundational suggestions in respect of pre-nuptial agreements would be as follows:

  • Discuss the terms of the nuptial agreement well in advance of the marriage date (at least 28 days if not longer), which will assist in demonstrating that there was no duress or pressure on either party to sign the agreement in a hurry before the wedding date.
  • Both parties should receive independent legal advice (the parties cannot share one lawyer to advise them) on the agreement and should enter into it with full understanding and appreciation of its terms.
  • There should be sufficient disclosure to illustrate that the agreement was an informed decision.

It is very important to seek legal advice for a nuptial agreement from a qualified solicitor to ensure that its terms are substantively fair to both parties.

Thank you so much Madeleine for all your insight into this important topic.  We look forward to speaking to you again to discuss other key topics of interest!

About Madeleine: 

Madeleine’s practice encompasses both civil and criminal law, with a particular specialization in matrimonial work. Madeleine was recently named as one of the leading family and divorce law barristers in Hong Kong for 2021 by Doyles Guide.

In the Family Court, Madeleine has experience in contested financial and child related matters, and family related company and trust cases.

Having represented clients at Financial Dispute Resolution hearings, Children’s Dispute Resolution hearings, as well as at trial for preliminary issues (third party interests/property/companies), financial issues (MPS applications, ancillary relief trials) and child related matters (such as custody disputes, and applications under the Guardianship of Minors Ordinance), Madeleine’s experience is broad.

Madeleine is often called upon to make applications under s.17 of the MPPO, setting aside dispositions or applying for injunctions, on an urgent basis.

Madeleine also has experience in a number of other areas of legal practice, including civil litigation and criminal law. She has assisted senior counsel, and acted as sole legal counsel, in multiple hearings and trials at each level of court in Hong Kong, from its magistracies to the Court of Final Appeal. Madeleine appears in the High Court of Hong Kong regularly with respect to civil litigation matters, including trust related cases, injunctions, torts of harassment, intimidation, and unlawful means conspiracy, as well as summary judgment applications.

Madeleine’s experience extends beyond advocacy to include providing written opinions and legal advice, as well as assisting in mediations and arbitrations.

Misconduct In Divorce

In what will be considered one of the most stressful times in an individual’s life, it is no surprise that many people behave badly during a divorce. It is a stressful life event, that many reckon to be on par with the death of a family member.  With that being said, it is important that if you are going through a divorce, your conduct throughout the proceedings is important and it could have an impact on your divorce.  To behave poorly is a reflection not only on your character but also affects the actual outcome of your divorce.

In a divorce, your conduct in the course of proceedings can be taken into account by the judge, although generally speaking misconduct during the proceedings is more properly dealt with in an adverse application for costs against you.

What are some examples of “bad behaviour” and misconduct in a divorce? Wanton dissipation/reckless dissipation of assets is one form of misconduct.  In KMD v PIB [2011] HKFLR 351, the husband was excessively spending on his lifestyle as well as his hobby of flying helicopters and this was taken into account by the court, resulting in HK$1.2 million being “added back” from his 50% shares into the matrimonial pot for division.  In MKKWH v RKSH [2013] HKFLR 540, the husband maintained three (3) other families over a period of years and post-separation the wife sought to add back an equivalent sum of monies that her husband had spent on his other families.  In this case, the Court of Appeal refused the wife’s application to add back these funds on the basis that the funds had been received post-separation. In A v B [2017] 1 HKLRD 187, the court held that payments to a girlfriend of HK$1.2 million was “wanton” and “reckless” and “extravagant” in view of the marital assets and the standard of living, and the court therefore added back into the matrimonial pot, the non-marital spending.

Material non-disclosure is another form of misconduct in litigation such as monies being hidden.  In SANK v PGN [2011] HKFLR 390, the court considered whether a husband’s non-disclosure and refusal to mediate should result in a costs award to the wife.  The court concluded that “[t]here are many reasons which may affect the court in considering costs, such as culpability in the conduct of the litigation; for instance material non-disclosure of documents.”  Parties to a divorce have a duty of full and frank disclosure and by failing to disclose, the courts will take this misconduct into consideration.

Another form of misconduct is a refusal to attempt to settle. In LWF v LMF [2015] HKFC 146, the wife’s failure to respond and attempt to negotiate was a relevant factor for the husband being awarded costs.  The same misconduct label is also attached to litigants who refuse to provide evidence and/or participate in proceedings such as filing necessary paperwork and/or attending court hearings.  By refusing to participate, the court will have no choice but to see the case as one-sided and only make decisions based on the actual evidence in front of the court.

The courts in Hong Kong have a duty to have regard to the conduct of the parties to a marriage.  Negative marital conduct can be detailed in sworn affidavits filed with the court and will be considered by the court as a material factor in allowing the court to depart from equality (See LKW v DD). However, it is to be noted that if there is a departure from equality, the courts will look for “obvious and gross” misconduct for it to be taken into account.

How To Prepare For Family Court In Hong Kong

After filing for a Divorce in Hong Kong, you will be required to attend the Family Court once the court sets down a hearing, whether it be for a First Appointment (a hearing where the court will be given an update on your case and where a judge give directions to move your case forward) or a more substantive hearing with respect to an application filed by yourself or your ex.

With that in mind, many people ask what they should expect and how to prepare for a Family Court hearing.  Here are some tips ahead of your court hearing:

  • Where Is The Family Court Located? The Family Court is located in the Wanchai Law Courts at Wanchai Tower, 12 Harbour Road.  Prior to attending the court, make sure you know the exact courtroom that you are required to attend and ensure you provide for sufficient time so that you are not late for your hearing.  There is a sitting area available at the courthouse whilst you wait for your hearing to begin.  However, if you need to have discussions with your solicitor prior to the hearing, plan ahead and go early so you can reserve a conference room pending the commencement of your hearing.  The waiting time before your hearing begins could be long so be sure that you have sufficient childcare and/or have informed your employer that you will be away for at least a few hours for your hearing.

  • What Should You Wear? This is a frequently asked question and should not be ignored.  When you attend a hearing, you will be in front of a District Court judge and it is imperative that you appear presentable.  Whilst you are not required to wear a suit and/or tie, it is recommended that you are dressed in smart and respectful attire.

  • How Should You Prepare? If you are represented by a solicitor, it will be best for you to have a discussion with your solicitor prior to the hearing.  Your solicitor can provide you with a rundown as to what to expect and how the hearing will proceed.  Generally speaking, you will not be required to speak directly to the judge if you are represented by a solicitor.  However, there may be occasions when a judge will ask you a question directly in court so you should be ready to speak if necessary.  If you are attending the court for a more substantive hearing and/or trial and are required to provide testimony, be sure to spend a few hours with your solicitor in advance so that you can be prepared to give oral testimony which your solicitor can assist you with.  If there is something you wish the judge to know about your case, speak to your solicitor and ensure that he/she understands what points you want addressed at the hearing (because your solicitor and/or barrister will be the one to present your case to the judge and they will speak on your behalf).  If you are representing yourself, be sure to prepare by jotting down on paper, the key points you wish to get across to the court so that when you do present yourself before the judge, your points are clear and concise.  Focus on getting the facts across to the judge rather than using it as an opportunity to complain to the judge about your ex.

Finally, try not to be nervous.  This is an opportunity for you to be heard at the hearing and if you are represented, trusted that you are in good hands, with a solicitor who is advocating on your behalf.

Delays In The Hong Kong Family Court Making It Difficult For Divorcing Parties To Move On

The number of people seeking divorce in Hong Kong is increasing. Figures released by the Hong Kong government in 2018 showed that the number of divorce decrees granted in 2016 (17,196) almost tripled that in 1991 (6,295). Such trends have been observed in various other countries such as the USA and the UK.

Year Divorce decrees granted in Hong Kong
1991 6,295
1996 9,473
2001 13,425
2002 12,943
2003 13,829
2004 15,604
2005 14,873
2006 17,424
2007 18,403
2008 17,771
2009 17,002
2010 18,167
2011 19,597
2012 21,125
2013 22,271
2014 20,019
2015 20,075
2016 17,196

‘Marriage and Divorce Trends in Hong Kong, 1991 to 2016’, Census and Statistics Department, HKSAR

Moreover, between 2017 to 2019, the number of family cases initiated in the Family Court has consistently surpassed 15,000 every year. As of November 2020, over 10,000 divorce petitions have been filed to the Family Court. While these figures for 2020 may seem low compared to previous years, this is likely due to the closure of the Family Court as a result of the COVID-19 outbreak which meant that for a period of time, divorce petitions could not be filed while the registries were closed.

  Matrimonial Causes cases in District Court
2017 17,006
2018 16,458
2019 15,393

There are currently 11 Family Court Judges in the District Court in Hong Kong and only a handful of High Court Judges in Hong Kong that deal with family matters. With the number of people petitioning for divorce reaching over 15,000 every year, the courts are being flooded with cases which has caused delays in getting hearings. For instance, for a 2-day hearing to be set down in the Family Court, it is estimated that it would take around 6 months. Likewise, it could take between 4 to 5 months for the Family Court to give judgment. All of this means that some parties are having to wait over a year before their cases are heard and resolved which only serves to prolong the stress divorcing parties have to endure.

As a result of the COVID-19 pandemic, the Hong Kong Family Courts were closed for 3 months from 29th January 2020 to 3rd May 2020 (except for urgent or essential hearings). After resuming court business for 2 months, the Hong Kong Family Courts closed yet again for 2 days from 20th July 2020 to 21st July 2020 as Hong Kong experienced its 3rd wave of COVID-19 cases. The extended closure of the Hong Kong Family Courts has only served to increase the backlog of cases the Hong Kong Family Courts have to deal with.

Further, where there are significant differences between the parties and the proceedings are hotly contested, ‘satellite’ litigation can arise where the parties make various applications on matters such as further disclosure of financial assets or where should the handover of children be for access. These extra applications have added to the burden on the Hong Kong Family Court system causing further delay. The UK Family Courts have also been experiencing a similar problem and it was reported in the Times that a judge had warned that separated parents were overwhelming courts with demands to micro-manage their lives.[1] In particular, it was reported that requests were made for the UK Family Court to deal with matters such as: “i) At which junction of the M4 should a child be handed over for contact? ii) Which parent should hold the children’s passports (in a case where there was no suggestion that either parent would detain the children outside the jurisdiction)? iii) How should contact be arranged to take place on a Sunday afternoon?”. While orders from the Courts may provide a solution for the parties, many cases could have been avoided if the parties had lawyers to negotiate these minor issues out of the courtroom.

The Hong Kong Family Court has been trying its best to deal with the backlog of cases, which includes dealing with some hearings by way of paper disposal without needing the parties to attend Court and counsel to make oral submissions. Further, the Court has been expanding the use of video-conferencing facilities (“VCF”) in family cases in response to the COVID-19 outbreak and setting up email addresses for judges so that parties can send documents to the Court. However, an area which the Family Court is still lagging behind is the electronic filing (“e-filing”) of Court documents. Other countries such as Singapore have already been using e-filing since 2000. E-filing would be a positive step towards modernizing the Hong Kong Family Court. It would also help to save time and improve the efficiency of the Courts which is badly needed in the present times with the COVID-19 outbreak and the inevitable delays in the Court system.

Divorce can be a very stressful process which can have a negative impact on the parties physical and mental health. The prolonged wait for cases to be heard in the Hong Kong Family Court compounded by the delays arising from COVID have made it even harder for divorcing parties to move on with their lives.  A family law solicitor can help guide you through the process. Alternatively, consider engaging in mediation to resolve disagreements out of Court which can save a lot of time and costs.

[1] https://www.thetimes.co.uk/article/courts-clogged-by-warring-parents-trivial-disputes-kfkntpgxh?shareToken=a0e62682d3a528261a84f832f828c511

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