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

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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.

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!

Jurisdictional Requirements To File For Divorce In Hong Kong

One of the first questions to consider before filing a Petition for Divorce is whether there is jurisdiction.  Many individuals mistakenly believe that because they were married in Hong Kong, the Hong Kong courts will have jurisdiction to oversee their divorce.  In fact, this is not a true fact and just because you were married in Hong Kong does not automatically give you standing to file for Divorce in Hong Kong.

Rather than look at where you were married, the Family Court in Hong Kong will look at the circumstances prior to the divorce to determine whether the Family Court has jurisdiction.  To be able to file for Divorce in Hong Kong, the Husband or Wife must fall within one of these categories pursuant to Section 3 of the Matrimonial Causes Ordinance (Cap. 179):

  1. Husband or Wife is domiciled in Hong Kong at the date of the Divorce Petition;
  2. Husband or Wife has been habitually resident in Hong Kong for three (3) years immediately before the Divorce; or
  3. Husband or Wife has a substantial connection with Hong Kong at the date of the Divorce Petition.

You might be asking what does this mean? Well let’s tackle each category because each category has a specific meaning under the law.

Domicle:  Under the Domicile Ordinance (Cap. 596), it states the following:

  1. Every individual has a domicile;
  2. No individual has, at the same time and for the same purpose, more than one domicile.
  3. Where the domicile of an individual is in issue before any court in Hong Kong, that court shall determine the issue in accordance with the law of Hong Kong.

Thus, under the Domicile Ordinance, an individual does not acquire a domicile in Hong Kong unless he/she is lawfully present in Hong Kong and this is presumed to be lawful unless the contrary is proved and he/she intends to make a home there for an indefinite period.   Pursuant to the Domicile Ordinance, the court will look at the country or territory with which an individual is for the time being most closely connected and this is taken as a relevant matter.

Many times, individuals believe that holding a Hong Kong permanent identification card is sufficient to prove that he/she is “domiciled” in Hong Kong however, it is important to note that this alone is not sufficient evidence to support “domicile” in Hong Kong.  In the event that you and your partner cannot establish “domicile” then you will need to consider the other two options of habitual residence or substantial connection.

Habitual Residence:  Habitual residence is where an individual states that he/she voluntarily lives in Hong Kong and has done so three (3) years immediately prior to the filing of the Divorce Petition.  Habitual residence is based on fact and a finding by the Family Court that either spouse was habitually resident or domiciled in, or a national of, the place in which the divorce or legal separation was obtained.

If you and your spouse cannot establish domicile or habitual residence, then the final option to be able to file a Petition for Divorce in Hong Kong is under substantial connection.

Substantial Connection:  Under substantial connection, the Court will look at various factors at the date of the Divorce Petition including the following:

  • Employment in Hong Kong
  • Schooling of your children
  • Place of Matrimonial Home/Place of Family Assets
  • Nature of Stay in Hong Kong

The exercise of determining substantial connection is a question of fact.  The Family Court in Hong Kong will conduct a two-stage enquiry, first determining whether a connection to Hong Kong exists and then determining whether the connection is substantial. It is through this exercise of looking at all relevant factors and circumstances that the Court will then determine whether an individual does in fact have a substantial connection to Hong Kong.

With that being said, if you are living abroad but come in and out of Hong Kong to do business, you may be tempted to establish substantial connection to Hong Kong for jurisdiction purposes, but it is important to note that the Court will look at all factors and will want to see that your connection to Hong Kong is in fact “real” and not made up in order to establish jurisdiction.  Thus, fly in-fly out individuals will not be able file for a Divorce Petition under substantial connection.

Before you proceed forward with your Divorce Petition, it is important to speak with a solicitor and discuss whether there is jurisdiction in Hong Kong.  Remember, just because you were married in Hong Kong does not allow you an automatic right to file for Divorce in Hong Kong.  Speak to your solicitor about whether you are able to file in Hong Kong and what you need to provide in order to show to the Family Court that Hong Kong is the appropriate jurisdiction.

 

 

 

 

Spotlight Profile: Kyra Cornwall, Barrister, 1 Hare Court

In this Spotlight Profile, we are talking to Kyra Cornwall, Barrister at 1 Hare Court in London, England.  Kyra specializes in high profile matrimonial matters and has extensive experience working on family law matters involving international jurisdictions including Cayman Islands, Singapore, France, Russia and Hong Kong.

Kyra, it is such a pleasure to speak with you today as I know you run a very busy practice in London, England as Barrister to many high-profile matrimonial clients.  Kyra, this is your first spotlight profile here on Hong Kong Divorce, can you tell our readers more about yourself and the work that you do in the matrimonial arena in London? 

Thank you so much for inviting me. It’s a pleasure to be involved!

I am a Barrister practising at 1 Hare Court, the leading matrimonial finance set in England and Wales. We are based in the heart of legal London, in the middle of the Temple, and specialise in matrimonial finance cases. In my ten years at the Bar, I have developed a practice involving lots of international families, both representing them directly in England and Wales, and offering English advice where proceedings are taking place abroad.

Your practice extends to international jurisdictions.  Can you tell us the link that you have to matrimonial matters here in Hong Kong and your experience working on Hong Kong cases?

In 2017, I was awarded the Pegasus Scholarship by the Inns of Court which enabled me to spend that summer in Hong Kong working firstly at Withers then at Temple Chambers (with Richard Todd QC) and finally sitting in on cases at the Family Court with Her Honour Judge Melloy. The purpose of the scholarship is to enable lawyers to build their international awareness and forge links abroad. I had a particular interest in Hong Kong as my father’s family are from Hong Kong originally, and so had been looking for a way to develop international links on a professional basis as well as personally. That summer certainly gave me the ability to do both of those things.

Over the course of my stay, I was fortunate to meet a huge number of family law practitioners and was given a real insight into a legal system that is so similar to that in which I practise in the UK.  Since returning to the UK, I have maintained a Hong Kong focus to my work from London, continuing to advise on cases which include connections to Hong Kong.

Have you noticed any changes or differences in your practice as a result of Covid-19 and the ongoing pandemic?

Absolutely. When the pandemic hit in London, many practitioners were still working from hard copy papers and almost all court hearings were in person. Suddenly the courts were closed and the legal world had to take a giant leap into the 21st century. Within a matter of weeks, papers were being sent electronically and court hearings were taking place via video platform. Although there were some teething problems at the outset, in my view this has been transformative for life as a lawyer and at the Bar particularly.

Prior to the pandemic, a significant portion of my life was spent travelling to Court, waiting around at Court and travelling home again. Being able to operate remotely has virtually removed this, enabling people to work more efficiently and improving work life balance for practitioners.

Beyond this, for those cases involving parties based internationally or where a party has to travel a lot for work, the advent of video platform hearings has also made it much easier for them to be involved without disrupting their working lives so much.

That’s not to say that there have not been problems: there have been technical glitches along the way and there are difficulties when a party does not have more than one screen available to them, but for the most part I think that the pandemic has forced the legal profession to take positive steps that I hope will remain in place moving forward.

One of your areas of specialty is marital agreements.  Hong Kong follows the United Kingdom landmark decision as seen in Radmacher v Granatino [2010] UKSC 42.  Do you see the law evolving or changing in the future with respect to marital agreements in the UK? 

Since the landmark decision in Radmacher, the courts have had to grapple with the questions of whether the parties had all the information material to their decision(s) to enter into a marital agreement, whether each party intended that the agreement should govern the financial consequences of the marriage ending and whether in all the circumstances this is fair.

Whilst the 2010 decision was followed by the Law Commission report in 2014 which suggested that marital agreements should in essence be upgraded to “Qualifying Nuptial Agreements” – i.e. enforceable contracts – in an attempt to provide more certainty to parties, this has not been made into law.

The current approach in the English courts is to focus on the circumstances in which agreements were reached and where they leave the parties in real terms financially, based on all the circumstances of the case. The recent reported decisions demonstrate a reluctance for the court to uphold agreements which are unfair or which do not meet needs objectively (see for example Brack v Brack [2018] EWCA Civ 2862, Ipekci v McConnell [2019] EWFC 19, IU v OS [2020] EWFC 98). The existence of an agreement does not automatically drive a case into needs territory only; it is one of the factors that weighs in the balance. Equally, a lack of legal advice does not automatically render an agreement unfair (see for example Versteegh v Versteegh [2018] EWCA Civ 1050).

That said, anecdotally I would say that a marital agreement that, for example, excludes sharing or fixes provision, does often have the impact of reducing a party’s claim where otherwise they might achieve more.

In Hong Kong, we see many expatriate couples with questions on whether to file in Hong Kong versus their home countries.  What advice would you give to those individuals who have a connection to both Hong Kong and England & Wales in terms of jurisdiction in regards to their divorce?

If I were to meet with a new client who had the option of getting divorced in both Hong Kong and England & Wales, I would suggest that they take local advice in both jurisdictions before making a decision. Where the outcome is likely to be similar (as between Hong Kong and England & Wales), it is likely to come down to questions of practicality.

There is one change coming in England & Wales however that may benefit one or both parties. No fault divorce is due to be brought in from April 2022 (i.e. being able to get divorced without having to plead any allegations of blame). This will hopefully help to drive down tensions and therefore reduce some of the distress that divorce proceedings can bring.

There’s sometimes an ongoing belief that England is a better forum to divorce because of the higher potential in terms of ancillary relief (finances) and costs.  Is this true or is this simply a misconception?

Both England & Wales and Hong Kong adopt bespoke outcomes on divorce, applying the concept of sharing, and the homemaker is seen to contribute just as much as the breadwinner. On that basis, assets in both jurisdictions are divided on a sharing basis if needs are met. Yes, the numbers are big, but England & Wales and Hong Kong are broadly similar in their approach to outcome.

To that extent, whilst London has the reputation of being generous on divorce, I think that is more due to the system that we apply (i.e. very similar to that of Hong Kong) as compared to the rest of the world. Broadly the same principles apply between England & Wales and Hong Kong when dividing assets and awarding maintenance, but other factors will play into needs-driven outcomes, such as the cost of living, parties’ abilities to work (e.g. visa issues), and access to the courts (Hong Kong grants jurisdiction where parties have a “substantial connection” at the date of petition/application, England & Wales operates a more stringent test).

This was such an interesting chat Kyra, thank you so much for your time.  We look forward to having you on board again to discuss other interesting and key topics in the area of matrimonial law!

About Kyra: 

Kyra is a barrister at 1 Hare Court in London, England.  Kyra specializes in financial remedies, claims after foreign divorce, nuptial agreements and jurisdiction disputes.  She is a member of the Family Law Barrister Association (FLBA) and the Inner Temple.

Kyra is described as a “a star in the marking, super clever, slick, elegant and professional” and “a smiling assassin” by both clients and peers.

Kyra’s practice is concentrated on high profile and international matrimonial cases, specifically issues dealing with forum disputes, cases with international trust and company structures, cases with complex issues of enforcement, issues of privilege and cases involving the enforcement of nuptial agreements. She regularly represents husbands and wives in high value and prominent matters, both led and alone in the High Court. She advises clients nationally and internationally, from jurisdictions including the Cayman Islands, Singapore and France, and has a particular interest in cases with links to Hong Kong, having undertaken the Pegasus Scholarship there in 2017.

Kyra is a contributing author of Rayden and Jackson on Divorce and Matrimonial Matters, a comprehensive and key guide for family law practitioners

For more information about Kyra and her practice, you can visit her Chambers’ website:  https://www.1hc.com/people/kyra-cornwall/

 

 

 

Parental Child Abduction In Divorce

Hong Kong is home to many expatriates and in a divorce, the issue of where a child will reside and grow up after a divorce is a distinct area of discussion among parents.  Whilst the majority of parents do come to an agreeable conclusion as to a child’s future place of residence, there are those few highly litigious cases when removal of a child from the jurisdiction of Hong Kong can occur without the permission of one parent and without leave of the court.

When this occurs, it comes within the realm of parental child abduction and the courts take this very seriously as many countries are members of the Hague Convention; a multilateral treaty developed by the Hague Conference on Private International Law and which provides an expeditious method to return a child internationally abducted by a parent from one member country to another.  Hong Kong is a member of the Hague Convention and The Child Abduction and Custody Ordinance (Cap. 512)(CACO) was enacted on 5th September 1997 to give effect to the Convention in Hong Kong.  It is important to note that the People’s Republic of China itself is not a contracting state to the Convention, but yet Macau, another Special Administrative Region is.  Thus, at this time there is no mechanism in place between Hong Kong, Macau and Mainland China for the return of abducted children to China.

In Hong Kong, removal occurs when a child who was previously in the country of his/her habitual residence is taken away to another country.  Retention occurs where a child who has previously been for a limited period of time outside the country of its habitual residence, is not returned on the expiry of that limited period.

In the event that you are concerned that your ex-spouse may unilaterally remove a child from the jurisdiction of Hong Kong, there are steps you can take to prevent this from occurring:

First and foremost, speak with a family law solicitor to discuss the filing of an application to restrict the removal of the child from Hong Kong.  This application should be made within the main divorce suit and can be made on an ex parte basis, which is essentially an emergency hearing.  If you are successful in obtaining an order restricting the removal of a child, be sure to speak to your solicitor about ensuring this order is adhered to including providing a copy of the removal restriction order to Hong Kong’s Immigration Department who will then have notice of this removal restriction should your ex-spouse attempt to leave Hong Kong with your child.

If you believe that your ex is plotting to remove your child from Hong Kong, be prepared and take preventative measures such as notifying your child’s teachers, babysitters and other caretakers of a possible threat.  Record any and all threats made by your ex-spouse and keep updated photos of your child.  Gather all documents related to your child such as passports and birth records and make sure you have copies of all documents and that the originals are safely stored in a secured place, accessible only by you. It may also be worthwhile to keep the lines of communication open between you and your ex-spouse, as it may help reduce any potential flight risks that you may be concerned about.

If your ex-spouse has already left Hong Kong with your child without your permission and/or without the leave of the court, it is imperative that you take immediate steps including the following:

  1. Contact Police: Contact local authorities to report parental child abduction. This is especially important if you are concerned about the safety and well-being of your child and/or you’re concerned that your ex-spouse will be going into hiding with your child.
  2. Seek Legal Counsel: As this is a situation which requires immediate attention, get into contact with a solicitor who can assist you with the return of your child.  You will want a solicitor who is well-versed in Hague Convention related matters and one who has previously successfully obtained the return of a child from a foreign jurisdiction.  Once a child is taken out of Hong Kong, there are many hurdles a parent must go through and if you are not properly armed with an outstanding legal team, it will be that much more difficult.  If you are concerned about the whereabouts and well-being of your child, it is very important to keep your solicitor apprised of all communications with your ex-spouse and your child.
  3. Make An Application: Once you have reached out to your solicitor, he/she may suggest that you file an application for the return of your child, but may also suggest that you make a request directly to the Secretary for Justice by filling in the necessary paperwork from the Department of Justice.
  4. Do Your Own Research About The Hague Convention Treaty: Read up on The Hague Convention Treaty and become familiar with it so that you are knowledgeable about what situation you are dealing with.  Not all countries are part of the Hague convention so it is vitally important to initially determine whether the country holding your child is a party to the treaty.  Do your research and do not be afraid to ask your attorney tough questions about how the Hague Convention Treaty will affect your case and the likelihood of success of having your child return to Hong Kong.

It is important to note that a court will have discretion to refuse the return of a child to Hong Kong.  The courts will consider factors such as consent, acquiescence in a removal, grave risk for a child’s return both to physical or psychological harm and/or the court may even consider a child’s maturity and his/her views about a return.

If you are the parent who wishes to remove your child from the jurisdiction of Hong Kong, the route is of course is to go through the legal system which includes negotiating and resolving issues related to child custody and access in your divorce case through mediation or having it resolved by a court order.  It is understandable however that many parents find this to be a frustrating process as the courts in Hong Kong are dealing with backlog of cases resulting in delay before there is an adjudication of matters and even then, one parent may not be happy with the result. It goes without saying however, that at no point should a parent take matters into their own hands and resort to parental abduction of a child which can have detrimental effects especially on a child.

If you wish to remove your child from the jurisdiction of Hong Kong, speak to your solicitor about filing an application to remove your child permanently from the jurisdiction.  If you and your ex can agree, a consent summons can be filed with the court.  Remember, an ill-thought-out plan with little research and planning will not convince a judge that it is in a child’s best interest to be removed from the jurisdiction of Hong Kong.

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