Category Archives: Parent

Children’s Views In Divorce Proceedings

In litigated custody battles, clients frequently ask if their child can testify before the judge. However tempting this is, there are many factors to consider before placing your child into the front lines of a bitter divorce battle.

In Hong Kong, family court judges are cautious and historically, children’s views are only accepted through a social welfare report and/or any expert evidence such as a child psychologist. However, similar to what is being seen in the USA, Hong Kong courts are now recognizing the importance of a child’s view and it is being promoted.

In Hong Kong, as part of its obligations under Article 13 of the United Nations Convention on Rights of the Child, the court will acknowledge that where a child’s interests are affected, a child’s viewpoint can be taken into consideration if that child is capable of forming his/her own views whether it be in person or through a representative. In practice, a child’s viewpoint is taken in the form of the following:

Judicial Interview: Under his/her own discretion, the judge may grant an interview and the mechanism for conducting an interview of a child. This interview is not for the purpose of gathering evidence (which is the responsibility of the social welfare report) but rather it is to enable a judge to listen to the views of a child.
Appointment of Legal Representative for the child: This is similar to what has been seen in California cases where a minor’s counsel is appointed under California Family Code section 3151 which allows the appointment of an attorney to look after a child’s best interests. Here in Hong Kong, the appointment of a legal representative for a child is pursuant to Rule 72 and 108 of the Matrimonial Causes Rules and the purpose is to reflect a child’s interests and not necessarily a child’s wishes. A legal representative for a child is not an automatic right and an unlikely appointment if a child’s view is adequately reflected and evidenced in a report before the court.

Whether a judge will allow your child’s views to be heard or not is dependent on a number of factors including: whether a child is suffering from harm due to access disputes; cases which are exceptionally difficult and involve foreign elements such as immigration or removal; an older child is opposing a proposed course of action; where there may be parental alienation from one or both of the parents; cultural and/or religious differences affecting a child; complex medical/mental health issues that need to be determined; serious allegations of physical, and mental or sexual abuse or in circumstances where neither parent seem to be suitable guardians.

Before a consideration is made with respect to allowing your child to testify or express his/her views to a court, you may want to ponder upon the following:

Is Your Child’s Testimony Necessary? Ask yourself tough questions including why you want your child to testify. What is the real reason? Can your child truly assist the judge to understand the circumstances in your home and how the custody arrangement is affecting your child? Generally speaking, there should be a strong reason behind having your child testify against the other parent rather than simply you wanting more custody time and/or harboring resentment/revenge against your ex-spouse.
What Are The Long-Term Effects On Your Child? Consider the long-term effects testifying will have on your child. A divorce is already a traumatizing experience for most children. It is even worse if the parents are engaged in a bitter and litigated custody battle. Consider factors such as whether it will be difficult for your child to testify because it will make him/her feel guilty for picking sides. You need to consider the psychological effects this will have on your child and how it will affect his/her relationship with your ex-spouse.

Remember that it is in your child’s best interests to have a healthy and communicative relationship with your ex-spouse, who is, after all, your child’s other parent. Allowing your child to testify will undoubtedly affect the relationship dynamic between you and your ex-spouse and your child. Also, try and determine why your child is expressing an interest in testifying.

In making any decision relating to your child, be sure to focus on what is in your child’s best interests and the right decision will follow.

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.

Round-Up of Divorce News

Spring has arrived and what better way to ring in the Spring season than to summarize some of the few highlights from Divorce news stories circulating the Web.

Gender and Diversity In Divorce

South China Morning Post published a story about a decision by a Court in Beijing, China ruling that a Husband should compensate his Wife for housework she had done over a period of five (5) years. The penalty? US$7,700. Whilst there may be some housewives out there that might scoff at the idea that 5 years’ worth of housework was only worth a penalty of US$7,700, it is in fact an interesting ruling as it places a monetary value to chores and housework.

According to the SCMP article, there has been and continues to be a larger debate in China about the role of women who stay at home rather than enter the workforce. This is the first ruling of its kind in China since a marriage law came into effect on January 1, 2021. With the new law in place, it will be interesting to see how this plays out and how women (who continue to mostly be in charge of housework in China) will be compensated as they are now entitled to request relief from the Court.

Chasing After The Sun

In a recent Miami Herald article, it was declared that Florida is fertile ground for love such that divorced men are choosing the state of Florida as their primary destination to move to after a divorce. Could it be that it is perhaps the sun and that sun-kissed glow attracting newly single men to flock to the sunny Florida state?

According to the article published by the Miami Herald, a study by MagnifyMoney confirms that Florida is welcoming nearly 2,581 men in the 12 months after a divorce. The study states that the real reason men are choosing Florida over other states is due to job opportunities and career advancement along with the lower cost of living offered by Florida as an incentive to move. Given the current state of affairs around the globe, it also would make sense for individuals to move where space is a luxury, as is outdoor recreation activities. After Florida, men are choosing California, then North Carolina as their second and third best destination option.

If men are heading to Florida, then where are women heading? According to the study, women opt for Texas, followed by Florida, then Georgia.

Divorce and Daughters

In a new article published by The Economist, there are several studies conducted in America which confirm that having a female first-born does in fact increase the risk of the child’s parents divorcing, particularly in America and the Netherlands. This study conducted by Jan Kabatek of the University of Melbourne in Australia and David Ribar of Georgia State University in Atlanta, Georgia, USA also states that “daughter-divorce” risk emerges only in a first-born girl’s teenage years. According to the researchers, the primary reason behind the “daughter-divorce” risk is based upon the fact that parents quarrel more over the upbringing of teenager daughters versus teenage sons.

Covid-19, Depression and Divorce

In unsurprising news, the BBC reports that due to the Covid-19 pandemic, there has been a rise in depression and stress among parents resulting in fears, worry and anxiety. This has led to frequent arguments among couples, thus placing additional stress on the relationship and opening the door to couples considering separation and divorce. Demands faced by parents are becoming increasingly stressful as parents not only are dealing with Covid-19 related fears, but the resulting effects of Covid-19 including lockdowns, home schooling mixed in with the pressures of work commitments.

According to the report, Oxford researchers are now tracking both children and parents’ mental health throughout this crisis.

Those are some of the more interesting stories hitting the web. Stay tuned for additional summaries of interesting stories circulating the web related to divorce.

What Happens to Child Maintenance and Access if One Parent Leaves the Country?

Hong Kong is a cosmopolitan city with people from all over the world. Over the years, many expats have chosen to settle down and start a family in the city. When relationships breakdown and parents separate, this can have a huge impact on the family dynamic. This is even more so when one parent chooses to relocate overseas either to return to his/her home country, for work opportunities or because of a new partner.

What happens to access arrangements when a parent relocates?

Upon divorce, orders will be made by the Hong Kong Court regarding child maintenance and access arrangements. Generally, the parent who does not have day-to-day care of the child (the ‘paying parent’) will have to pay child maintenance to the parent who does (the ‘receiving parent’). When separated parents continue to live in the same city, access with the child can be arranged fairly easily. However, this will be complicated if the paying parent relocates while the receiving parent and child continue to remain in Hong Kong.

Once the paying parent moves to a different country, it will be more difficult for the paying parent to maintain contact with the child and the paying parent’s access with the child will inevitably decrease. Flying back on forth between countries frequently to see the child may not be economically viable especially if the paying parent has moved very far such as to the United Kingdom or Canada. While social media and online modes of communication such as WhatsApp and Skype have made it easier for families to stay connected, the time difference may make it difficult to arrange a mutually agreeable time that fits into the child’s school schedule especially as the child grows older and has more extracurricular activities. Ideally, both parents should be able to agree to the relocation and access arrangements so they can be adjusted to accommodate the move.

Enforcement of child maintenance if the paying parent relocates and stops paying maintenance

The paying parent still has a duty to maintain their child regardless of how much time they get to spend with the child or what country they live in. However, if the paying parent stops paying maintenance after relocating, the receiving parent may encounter very real difficulties in trying to enforce an existing child maintenance order. The receiving parent will have to go to the Hong Kong Court to try to take enforcement action. The enforcement of Hong Kong maintenance orders overseas is governed by the Maintenance Orders (Reciprocal Enforcement) Ordinance. Whether a child maintenance order made in Hong Kong can be enforced overseas will depend on the country which the paying parent has moved to and whether it is a reciprocating country. Currently, only 15 countries and places are designated as reciprocating countries:-

1.	United Kingdom	9.	Brunei
2.	Bermuda	10.	Malaysia
3.	Manitoba, Canada	11.	New Zealand
4.	Saskatchewan, Canada	12.	Singapore
5.	Ontario, Canada	13.	Solomon Islands
6.	Isle of Man	14.	South Africa
7.	Australia	15.	Sri Lanka
8.	British Columbia, Canada

If the paying parent has moved to any of the above reciprocating countries, the receiving parent can apply in the Hong Kong Family Court for the child maintenance order to be sent to that country for enforcement.

Parents cannot enforce an arrangement made informally between them, it must be made an order of the court first. Moreover, the receiving parent will need to provide the overseas address at which the paying parent can be found. Enforcement can be further complicated if the paying parent moves to another country with the intention to avoid having to pay child maintenance and the receiving parent does not know where the paying parent is living.

Enforcement of maintenance orders overseas can be complicated. If you are seeking to enforce a maintenance order overseas, it is important to seek legal advice from a family lawyer.

Children’s Views In Divorce Proceedings

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