Children Issues In A Divorce

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Children Issues In A Divorce

How Are Children Matters Dealt With In The Family Courts?

The Hong Kong Family Courts have the jurisdiction to make Custody, Access and/or Maintenance Orders in relation to children i.e. those aged under 18. Generally speaking, children are not required to have separate legal representation, unless the Court considers it appropriate to do so.

What Is A Custody Order?

A Custody Order is a court order which relates to the child. In such type of Order, the court will make an order on three aspects, namely:

  1. Custody;
  2. Care and control; and
  3. Access of the child.

Custody may come in two forms – sole custody and joint custody. The former means that only one of the parents has custody over the child and the latter means that both parents have custody over the child. Having custody over a child means that the custodian parent can make all the important decisions affecting the child such as his/her education and religion. It is important to note that if a parent has sole custody over a child, the other parent can still have a say in key issues related to the child such as choice of school and/or religion. Generally, the Family Court tends to grant a Joint Custody Order as the Court recognises the importance of having both parents involved in the upbringing of the child. This is so unless it is clear to the Court that a Joint Custody Order will not work in the circumstances, perhaps because the parties are unable to communicate, or the situation remains too acrimonious.

Care and control of a child is typically granted to the custodial parent. Having care and control means that the custodial parent has the right to make decisions over the child’s daily matters, such as what they wear on a daily basis or the foods that they eat,.

What Is An Access Order?

An Access Order is usually granted to the non-custodial parent and allows the parent  without care and control to visit the child. For example, the Court can grant one of the following three types of Access Orders:-

  1. Reasonable Access Order;
  2. Defined Access Order; or
  3. Supervised Access Order.

A common access order is Reasonable Access, which means that the parents are left to make arrangements as to how and when access will take place between themselves. If an agreement cannot be reached or if any problem with access arises subsequently, the Court may vary the Order to a Defined Access Order which specifies when, where and how access will occur. If there are difficulties over access, the Court may also grant Supervised Access, which means that access can only take place with the supervision of an independent third party who is responsible to supervise the access time.

Children’s’ Financial Matters

In a divorce suit, the Court may make a Financial Order for periodical payment or lump sum payment for the benefit of the child.

A lump sum payment is ordered to achieve a clean break and may be ordered to be paid as one lump sum or by instalments. The Court in considering whether to grant an Order will consider the circumstances of the case and the following non-exhaustive list of factors:

  1. the financial needs of the child;
  2. the earning capacity and assets of the child;
  3. the physical and mental condition of the child,
  4. the standard of living of the family prior to divorce; and
  5. the education the child was receiving and expected to receive.

The Financial Order shall only take effect upon the grant of the Divorce Decree Absolute, the final Court Order which officially dissolves a marriage.

In addition to the above, another type of Financial Order called Maintenance Pending Suit can also be applied for in the best interests of the child. The Court, in awarding Maintenance Pending Suit, will order one of the parties to the divorce to make periodical payments to the other for his or her maintenance for the duration of the divorce proceedings.  The Court will consider the reasonable needs of the child and the ability of the husband or wife to pay without conducting a detailed investigation. This type of Order can take effect from the date of the presentation of the Divorce Petition until the Divorce Decree Absolute.

Divorce, when it involves children, will add layers of complexity to the divorce procedure. Thus, in order to safeguard custody your rights and your children’s rights, be sure to consult your solicitor and ask questions!

Calling In Experts For A Divorce

Who Are The Experts?

Experts are individuals with education, experience and knowledge in a specialised area. They may be called upon when there is an issue in a divorce that the Court needs specialist input on. The Court will consider the expert’s advice and/or opinion when deciding an issue.

What Types Of Experts Are There?

There are many types of experts in a divorce. Here are some of the most common types:-

  1. Psychologists:  Psychologists are regularly called upon for children matters. They will analyse the situation and interview the parties involved before providing a professional opinion on the effect of divorce on the children to the Court. The psychologist will then recommend a child custody and visitation plan based on their analysis.
  2. Vocational Expert:  Vocational Experts are usually engaged in cases where one of the spouses has not worked for a long time as they might have given up their career to look after the family. There may therefore be a need to assess his or her current and future earning ability for the calculation of child and spousal support. A vocational expert will evaluate a spouse’s education and skills to determine their earning capability.
  3. Forensic Accountants and Financial Experts:  Forensic accountants are experts in discovering a spouse’s hidden assets and/or hidden sources of income. For example, if one spouse own a business, a financial expert could help in assessing and providing the Court with a more accurate value of the business. Such information helps to build an objective financial picture of the spouses’ assets for division and for the calculation of child support and spousal maintenance.
  4. Real Estate and Antique Experts:  Real Estate experts have the knowledge and skills to calculate the true market value of property. In divorce cases where high value assets are involved, antique experts may be retained to value certain items or collections. Again, this provides the Court with a more accurate financial picture of the spouses to consider when deciding on the question of asset division, or the calculation of child support or spousal maintenance.

While experts may be beneficial to your case, it is important to note that they may be costly and you may have to bear the costs by yourself. You should therefore discuss the need for an expert with your lawyer to see whether the benefits of hiring an expert outweigh the costs of the service that they provide.

Mediating Divorce In Hong Kong

When you marry, the hope is that it will be a forever partnership.  Unfortunately, divorce is all too common these days and it is a reality for many individuals in Hong Kong and around the world. While the effects of divorce cannot be completely avoided, it can somewhat be alleviated depending on how you choose to approach your divorce.

One way to alleviate the difficulties associated with divorce is mediation. In Hong Kong, there are many qualified mediators who can assist you and your spouse in working through the complex issues associated with divorce and allow both you and your spouse the opportunity to discuss issues and hopefully come to an agreement and plan that works best for you and your family.

Here are a few things to consider in determining whether mediation is an optimal alternative for you and your spouse:

  1. Do You And Your Spouse Communicate? If you and your spouse are on speaking terms and can communicate without anger, frustration and criticism, this is a good sign that the two you will be able to sit together in mediation and work on resolving issues in your divorce
  2. Do You Want To Minimize Fees And Costs? The bottom line is that mediation saves money.  When you litigate your divorce there can be exorbitant costs incurred to pay solicitors, barristers, joint experts and so forth.  Mediation minimizes costs and if you and your spouse are tight on funds and wish to minimize fees and costs, mediation is a wonderful alternative.
  3. What Are Your Future Plans? It is true that when you litigate a divorce in Hong Kong you may be delayed due to the time constraints/busyness of the Family Court and being heard before judge. If you are in a hurry to get a divorce and want to resolve issues as soon as possible, mediation is a good option which will mean that your divorce proceedings are not drawn out for years to come.

In Hong Kong, a litigated divorce is costly.  Not only do you have to consider Family Court costs, but you also have to consider costs that are incurred as a result of employing a solicitor and potentially a barrister depending on the complexity of your case.  If you are able to communicate effectively with your spouse and believe the two of you can come to reasoned decisions and agreements related to issues such as asset division, spousal and child maintenance and child custody issues, then mediation may be a viable option for you.

Here are some helpful tips that may assist in a successful mediation:

  1. Do Not Involve The Children In Adult Discussions/Decisions:  If you want to mediate your divorce and want to come to a reasoned decision that is in the best interests of you and your family, it is highly beneficial to lay the groundwork of a co-parenting relationship with your spouse.  To do so means that you do not involve the children in any adult discussions with respect to the divorce.  This also means there should not be any badmouthing of the other spouse with the children.  Remember that children need both parents and it should be your priority to facilitate your children having a healthy relationship with the other parent.
  2. Compromise: To be successful at mediation requires you to compromise with your spouse.  If you are not willing to compromise, it will be very difficult to come to an agreement in mediation as there needs to be both give and take between you and your spouse.  You may be surprised that when you take a few steps towards compromise, your spouse may be willing to meet you halfway and be more willing to compromise him/herself.
  3. Be Willing To Reach Out And Communicate: You may want to consider reaching out to your spouse to smooth out any misunderstandings before mediation so that you and your spouse can come to the mediation table without any built-up resentment or anger.  While you may not have the same relationship as when you were married, it is important to recognize that you and your spouse may still need to remain in each other’s lives. For example, when you are co-parents of the children of the family.  Reaching out and putting pride aside will go a long way in building a new relationship post-divorce.
  4. Try To Understand Your Spouse’s Point Of View: It is important to always consider your spouse’s point of view.  While it may be hard to do so given long-standing resentments and issues in the relationship, this is an important step in resolving issues amicably.  Perhaps your spouse may be proposing something reasonable.  Take the time to consider their point of view before forming your own decision.  You may be surprised that there is a compromise in the midst of two differing ideas/opinions.

If you are interested in mediating your divorce, speak with a professional solicitor experienced in matrimonial law.  He/she will be able to put you in touch with an experienced mediator who can assist you and your spouse in resolving issues.  Once you and your spouse agree on a mediator, the mediator will walk you through the steps and preparation needed before you attend the first session.  It is important to note that depending on the complexity of your case, you and your spouse may need to attend multiple mediation sessions.  The key however is that you and your spouse are both willing to cooperate and participate in the mediation process.  That in itself will go a long way in helping you and your spouse achieve the goals you want in your divorce.

How Is Child Maintenance Calculated?

Unlike spousal maintenance, the Court has wide discretion to allow maintenance for children at anytime prior to the decree or even if the proceedings are dismissed.

Generally speaking, in all matters relating to children in family proceedings, the welfare of the child/children is the first and paramount consideration of the Court. While each case will depend on its own facts, the Court, in making any determination with regard to financial orders for a child will take into account all relevant factors, which include:

  • the financial needs of the child;
  • the income, earning capacity (if any), property and other financial resources of the child;
  • any physical or mental disability of the child;
  • the standard of living enjoyed by the family before the breakdown of the marriage;
  • the manner in which the child was being (and in which the parties to the marriage expected the child to be) educated;

The Court will generally endeavour to exercise its powers so as to place the child, so far as it is practicable (having regard to the above factors) in the financial position in which the child would have been if the marriage had not broken down and each of the parents had properly discharged his or her financial obligations and responsibilities towards the child. This will be different for every case depending on the parties’ standard of living during marriage, and the financial means of each parent.

Children’s maintenance will usually involve consideration of all expenses that may be incurred by them on a daily/monthly/annual basis, such as food, their share of housing expenses, education, extra-curricular activities, clothing, gifts, and holidays. A child’s financial needs will be interpreted on a generous basis by the Court.

Once the Court arrives at an appropriate figure to reflect the monthly expenses of the child, this will be made into an Order, such that the paying spouse must pay that amount every month going forward, usually until the child reaches 18, or finishes tertiary education, depending on what is prescribed in the Court order.

It is always open to either parent to apply to the Court to vary maintenance of a child (either to increase, decrease or suspend the amount) if there has been a change in circumstance, e.g. the decrease of income of the paying party, or the increase of a child’s expenses. The Court will then consider the matter afresh and revise the sum of maintenance if it sees fit to do so.

Aside from maintenance, the Court may, on an application by either of the parents (or guardian) who has custody of the child – may make any one or more of the following orders (having regard to the means of the paying parent):

  • a payment of a lump-sum to the applicant in one amount or by instalments for the immediate and non-recurring needs of the child.
  • transfer of such property to which either of the parents is entitled or
  • settlement of such property, to the child.

These other forms of financial maintenance for children are covered in separate articles on hongkongdivorce.com

 

 

Separation Of Unmarried But Cohabitating Couples

Am I Entitled To Anything Upon Separation?

The idea of a common law marriage between unmarried couples is a myth. Unmarried couples do not have any legal status equivalent to that of married couples in Hong Kong. Thus, regardless of how long a couple may have been cohabiting, de facto couples do not enjoy the same scope of rights as enjoyed by married couples.

Currently there are laws protecting a party in a de facto relationship in terms of domestic violence, but if a long-term cohabiting couple separate, there are very few grounds upon which one party can apply to the Court for any financial support from the other party. This contrasts greatly with the position of married couples going through divorce who have the right to apply for a range of financial orders under the Matrimonial Proceedings and Property Ordinance, Cap. 192. For cohabiting couples, regardless of the length of the relationship, there is no right to apply to the Court for maintenance, or a capital sum payment, or the transfer of property.

Financial support for an individual in a de facto relationship is only possible when there are children born of the relationship, and even then, any financial maintenance is for the benefit of the children, not the parent. For instance, an unmarried mother may apply to the Court for child maintenance from the child’s father to support the rearing of the parties’ child. Included in that maintenance, if ordered by the Court, may be a basic ‘carer’s allowance’ to support the unmarried mother in raising her child. However, this will generally only be a limited sum to cover her needs if caring for her children reduces her ability to work. This would usually be considerably less than the maintenance ordered for a divorcing parent in a comparable situation.

Aside from this, the only other avenues open to a party in a de facto relationship to seek financial compensation or an award of property from the other party would likely arise out of the general laws of Hong Kong with regard to contract or property. For example, if one party contributed to the purchase price or loan repayments on a property, or contributed to it through renovation, this may give rise to a beneficial interest and/or a right to live in the property. One party may even be able to demonstrate that there was a common intention constructive trust arising when the property was bought such that they are entitled to live there, even if the property is legally in the other party’s name.

What If My Long Term Partner Dies And We’re Not Married?

If a person has not married his/her cohabiting partner, and his/her cohabiting partner dies intestate (without a will), he/she cannot share in the estate of his/her cohabiting partner.

However, under the Inheritance (Provision for Family and Dependants) Ordinance (Cap. 481) a cohabiting partner may apply for financial provision from his/her deceased partner’s estate, even if the deceased partner leaves no will and that partner does not have the legal status of a husband or wife.

According to section 3(1)(b)(ix) of the Inheritance (Provision for Family and Dependants) Ordinance, any person who has been maintained wholly or substantially by the deceased immediately before the deceased’s death can apply for financial provision from the deceased person’s estate. Therefore, if a cohabiting partner can prove that he/she has been maintained by the deceased partner, then he/she can still receive maintenance from the deceased’s estate.

 

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