What To Expect At A Divorce Trial

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What To Expect At A Divorce Trial

For some couples going through a divorce, key decisions about finances and the children may end up being decided by a judge at trial.  This happens if you and your spouse cannot agree on how to resolve issues between you both or with the help of a mediator.  For many couples entering the world of divorce, trial is the last thing on their minds and many individuals cannot believe that their divorce has to be decided by trial.  The reality though, is that if you and your spouse cannot agree on key issues, your case will proceed to trial in Hong Kong and these decisions will be made by one person: a judge. So, let’s discuss trial and what you can expect leading up to trial:

1. How Did You Get Here?
The first question many couples ask, is how in the world did they end up going to trial in a divorce?! When couples cannot agree on key issues mainly related to ancillary relief (finances) and the children, they will have no choice but to continue through the Court process in Hong Kong which ultimately will end up at trial if decisions/agreements cannot be reached by the parties in the meantime.  For many couples, trial is burdensome not only because it is extremely expensive, but also because it is emotionally taxing on the couple, but also the children and the effect on them of having parents who have to endure the lead up to and during the trial. Many solicitors will thus encourage couples to try and mediate during the divorce and come to an agreement on issues by way of a Consent Summons, so that the decision related to the breakup is made by the couple and not by a judge.  Unfortunately, this is not necessarily an easy feat for many couples as divorce can bring out a lot of resentment and anger. However, if you are able to put the anger and resentment aside and come up with a compromise between you and your soon-to-be ex-spouse, this will always be encouraged to avoid trial.

2. Preparations for Trial
Prior to trial, your solicitor and barrister team will be hard at work preparing all the necessary documents to be filed with the Court ahead of the trial. Many times, the trial judge will hold a Pre-Trial Review hearing, to get a better understanding of the issues to be decided at trial and what work needs to be done ahead of time. At a Pre-Trial review hearing, the judge will provide each side with deadlines for filings and any other deadlines the judge sees fit.  Your solicitor and barrister will need to adhere to the deadlines set out by the court and it will require a lot of discussion with the other side so that both sides are fully prepared by the trial date.  Closer to the trial, your solicitor and barrister team will also hold several meetings with you to prepare you for trial and the testimony you will be giving.  They will run through the types of questions the other side may ask you on examination and how you should conduct yourself whilst on the witness stand.

3. What to Expect at Trial
Your solicitor and barrister team will handle each day with expertise and ease so as to make you feel comfortable and in good hands.  The trial will be emotionally taxing as you and your spouse will be taking the stand and will be examined not only by your barrister but by the other party’s barrister as well.  It is important for you to remain in constant communication and in step with your solicitor and barrister team so that you understand what is happening each day and talk to them about how the trial is proceeding. It is important to note that the judge will require you to handle the proceedings with respect and dignity.  This means wearing clothes that are conservative and respectful.  It is also important that you do not burst out with your thoughts and comments when your ex-spouse is on the stand or when his/her barrister is asking questions. You should answer questions directly and succinctly and not make personal attacks on your spouse as it is not the forum to do so, rather the judge simply wants each party to present their side so he/she can make the best and informed decision for you and your family.

4. Costs For Trial
What many couples do not realize, is that trial is extremely expensive. Leading up to the trial, there are hours upon hours of preparation by your legal team. Your legal team will often include a team of solicitors which can include partners, associates and trainees all assisting on the case. Your team may also include senior and junior barristers, depending on the complexity of your case and barristers will require their fees to be paid well in advance of the trial.  Depending on your case, you and your spouse may be responsible for fees related to experts and reports by experts on issues related to finances and the children.  There are also fixed costs to consider as well, including fees for document preparation such as photocopying and filing of documents and the related court fees. Finally, if you are unable to succeed at trial and are the losing party, you may also be responsible for the fees and costs incurred by the other party.  Thus, you could potentially be responsible not only for your own fees and costs, but the fees and costs of your ex-spouse.  The costs for trial can be overwhelming and should not be taken lightly.  You should also consider that if you or your spouse lose at trial, you may have an opportunity to appeal and this too will be extremely costly as you will remain in the litigation process and continue to incur fees for an appeal.  Thus, it is something to carefully consider before deciding to move forward with trial.

5. Can You Stop Your Trial?
Like a divorce, a trial can also be stopped before it goes forward. Your solicitor should be speaking to you about options to prevent the trial train from moving forward at epic speed.  Other options that you could consider to stop a trial from going forward, is mediation, private dispute resolution with a judge or retired judge, or even sitting down informally with your ex-spouse and coming up with an agreement that works for you both preventing potential loss as a result of a trial.

Sometimes trial cannot be avoided especially if you are in a heavily litigious divorce and are dealing with a difficult ex-spouse. However, if there are certain issues you can compromise on and work on resolving with your ex-spouse, do so and put as much attention and effort into a resolution as trial can have devastating emotional effects on you and your children.  The time spent to prepare for trial is also time that cannot be returned to you so it is important to consider all of this before you forge ahead with a trial.

When Divorce Is A Bad Idea

Determining whether to move forward with a divorce is a decision that needs to be made wisely and should be made based on legitimate reasoning. Divorce is a long, emotional process and the decision to divorce should not be taken lightly or made impulsively. It is important to note that there is always time to change your mind, even if the divorce train is well on its way. Regardless of your situation, it is always a good option to work on the relationship before making a final decision to divorce, especially if the following applies:

1. You waiver about divorce: If you waiver over whether to divorce or not, it is better to err on the side of caution and try working on the relationship before opting for divorce. When you waiver, it perhaps it is a sign that there remains confusion over whether this is the best decision for you and your family and there is still an attachment to the idea of remaining in the relationship.

2. You have not yet thought through the entire process: If you have not thought through the entire process of divorce, you may not be ready for a divorce. It is important to do things such as: thinking through the entire process includes reading articles and books that outline what you can expect in a divorce and also talking to friends about their experiences in a divorce can also help you through the process. Making an appointment with experts like your financial planner may also be a good idea so you know what your financial picture will look like in a divorce. What about your children and how it will affect them? Would you move and if so, what schools would your children be enrolled in if you and your spouse divorce? Will your spouse agree with your decision to move because if he/she does not agree, it could turn into a very litigious and expensive divorce. And most importantly, do you still love your spouse? Imagine a life without this person and go from there.

3. You and your spouse are willing to try counseling: It is important that before you make a final decision to divorce, that you and your spouse have exhausted all avenues of repairing your relationship. One option to assist and heal your relationship is through counseling, whether it be individual therapy or couples therapy. It is important to remember though, that therapy is not a quick fix for your relationship, but it requires time, energy and financial investment. Thus, you and your spouse need to be willing to put in the time and effort in therapy to try and make the relationship work.

The decision to divorce should not be taken lightly since it will be a life-altering event. Consider some of the key points outlined above and make sure you make an informed, rational decision before taking this course of action.

Reasons To Break Up With Your Divorce Solicitor

When you are in a rocky relationship, there may come a time when you realize it is in your best interest to break up and move on. Breaking up is hard to do, especially when you are invested in the relationship and the uncertainty of what lies ahead is daunting. In a divorce, this is especially true since all the comforts of your past are no longer the face of your future.

In a divorce, you are mourning the death of your relationship and so the last thing you want to worry about is another difficult relationship…but with your divorce solicitor. If anything, the legal assistance that you seek and require in this difficult circumstance should somewhat ease the burden your divorce.

Unfortunately, that is not always the reality for some individuals who are in difficult solicitor-client relationships. But how do you know you are in a solicitor-client relationship terrible enough to warrant a break-up?

Here are five signs that it might be time to cut-ties with your divorce solicitor and find a better fit for you and your situation:

1. Your solicitor blows you off: If your solicitor does not return your calls or emails within a reasonable time frame, this may be cause for concern. Communication with your solicitor is key in order to move your case forward and to resolution. If he or she refuses to return your calls or answer your questions, it might be time to start looking for alternative representation and find a solicitor who will pay attention to you and your concerns.

2. Your solicitor keeps you in the dark about your case: It is not in your best interests if your solicitor is not keeping you informed of the details of your case. For example, if you are kept in the dark about communications your solicitor is having with your spouse’s solicitor, or you are not privy to documents being prepared or exchanged on your behalf, then it is time to raise the red flag. You have the right to know what is happening in your case, so demand it.

3. Your solicitor makes unilateral decisions without your input or approval: While your solicitor is knowledgeable about the legalities of your case, your input and approval is necessary because the decisions will affect your life. That is why it is important that your solicitor consults with you before any major decisions are made about your case. As such, if you do not understand the terms and concepts of what is occurring, it is imperative that you ask your solicitor to explain the process and what it will mean for you and your family now and in the long-term.

4. You and your solicitor do not see eye-to-eye on strategy: In a divorce, you will be faced with very important choices as to how you want your case to proceed. While there may be moments where you and your solicitor may disagree, there should be agreement on the overall strategy in terms of bringing your case to resolution. If you are inclined to proceed with a mediated divorce and your solicitor is pushing you towards a more aggressive and litigated divorce or vice versa, your current solicitor-client relationship may not necessarily be the best fit. To avoid any surprises, it is best to discuss your vision from the get-go of your relationship.

5. Your solicitor has not prepared for Court: If you get the sense that your solicitor does not know the details of your case and is not prepared for court or has not prepared the barrister to represent you at court, then it may be prudent to start asking your solicitor questions about his or her lack of preparation. You have hired your solicitor to represent your interests and to be your voice. If he or she does not know your case and you are doing much of the legwork, it may be in your best interest to move on to a new solicitor-client relationship.

Remember that in a divorce, you are already dealing with a challenging situation. Your solicitor should not make the process more difficult, but rather assist you in navigating the somewhat overwhelming legal system. Like any healthy relationship, communication is key!

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.

 

 

 

 

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