Category Archives: Resolution

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.

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.

Child Maintenance And Access If One Parent Leaves Hong Kong

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:-

United Kingdom
Bermuda
Manitoba, Canada
Saskatchewan, Canada
Ontario, Canada
Isle of Man
Australia
British Columbia, Canada
Brunei
Malaysia
New Zealand
Singapore
Solomon Islands
South Africa
Sri Lanka

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.

Unmarried Parents and Child Maintenance

An increasing number of individuals in Hong Kong are choosing not to get married. For unmarried couples who have children, many are unaware of their legal rights for financial support should the unmarried couple split. Indeed, the financial obligations of unmarried parents after separation are not as clear cut and certainly not the same as married couples.

When unmarried couples separate, they are not entitled to claim for maintenance for themselves from their ex-partner. An unmarried parent may find him or herself without accommodation or adequate funds to maintain the same standard of living he or she enjoyed while together. The only form of financial support an unmarried parent can obtain is child maintenance under the Guardianship of Minors Ordinance.

What financial support can an unmarried parent claim for the benefit of the child?

It is always desirable for unmarried parents to try and reach an agreement on how to support their child upon separation. However, if an agreement cannot be reached, an unmarried parent may apply to the court for the following forms of financial support for the benefit of the child:-

Lump sum payment for the immediate and non-recurring needs of the child or for any liabilities or expenses previously incurred in relation to the child
This can cover the one-off needs of the child within the immediate future such as medical treatment, school uniforms and equipment.
Maintenance payments
Secured maintenance payments
Transfer of property
Settlement of property

In determining the amount to be paid for the benefit of the child, the court will consider what is reasonable, bearing in mind the paying parent’s financial situation. The Court will not force the paying parent to pay an amount he/she cannot afford. Moreover, when deciding what orders should be made, the court will have to keep in mind what is in best interests of the child.

How is child maintenance calculated for unmarried parents?

An unmarried parent can claim child maintenance to meet the reasonable needs of the child until the child reaches 18 or finishes full-time education. The child maintenance can cover expenses for the child’s normal activities and necessities such as food, clothes, medical/dental expenses, school fees, tuition/extracurricular activities, school buses and entertainment/presents. It can also cover the costs of hiring a domestic helper. The paying parent is usually required to pay the education expenses including tuition fees and school bus fees directly.

Crucially, the unmarried parent can seek child maintenance to cover rental which more often than not is the largest expense an unmarried parent will incur particularly in Hong Kong where property prices can reach unaffordable levels. However, all of this has to be within the means of the paying parent taking into account how much he/she earns per month and his/her personal monthly expenses.

In determining what amount of child maintenance is reasonable, the court will also consider the standard of living of the paying parent such as the size of his/her flat, whether he/she was a member of any clubs and how often he/she travelled. For instance, if the paying parent enjoys a comfortable standard of living, eating at good restaurants and going on frequent holidays overseas, the court will not expect the child to live on a shoestring budget.

An unmarried parent may also claim a ‘carer’s allowance’ to support him or herself in raising the child. This ‘carer’s allowance’ will cover the unmarried parent’s basic needs when looking after the child, in particular, when it limits his/her ability to work, and would increase the total amount of child maintenance payable to him/her. It can cover the expenses incurred to maintain the home such as utilities and other general household expenses. However, this allowance is usually a lot less than the maintenance a married parent would receive and the Court will take into account whether the unmarried parent can start working part-time or gradually return to full time work as the child grows older.

For many, the rights of an unmarried parent for financial support of children are not well understood. If you are considering making a claim for child maintenance as an unmarried parent it is important to seek legal advice from a family law professional.

Pet Custody and Crafting Pet Parenting Plans

In this modern world, there is a growing trend of couples choosing not to have children. This is especially the case when individuals are more inclined to focus on careers and other responsibilities. For those couples who still wish however, to add to their family unit, there may be an inclination to add furry friends to the family nucleus. As more households include pets, it is no surprise that pets can and do become a central focus when couples split in their divorce proceedings. So, who gets the pets in a divorce? What can courts do when “dividing” a pet in matrimonial proceedings and what part should you play in resolving this dispute regarding your family pet?

Legally, pets are not afforded the same rights as a child and whilst you may consider your pet to be your child, the courts will not see it that way. Instead the court will look at pets as property and so, since pets are considered property, there is no “custody” issue to be resolved. This does not mean you and your ex-spouse need not be creative when resolving disputes related to your pet.

Here are some things to consider:

Brainstorm a pet parenting plan: There is no limit to creativity when it comes to the idea of crafting a pet parenting plan. Brainstorm a pet parenting plan that allows you and your ex-spouse to have regular visitation with your family pet. Similar to a child custody and visitation agreement, you and your ex-spouse can agree on who pays for vet bills, who is responsible for visitation travel, and the date and time for regular visitation. Ask your solicitor to assist in formalizing a contract to crystalize the pet parenting plan that you and your ex-spouse have agreed to. It is important to remember that the courts have no power to make orders regarding pet custody since pets are considered “property.” The same custody rights that children are afforded are not the same with your pet.

When brainstorming a pet parenting plan, it is important that both you and your ex-spouse be mindful and sensitive towards the needs of a pet. You may want to discuss with your ex-spouse the time each of you spend with the pet, as the pet will certainly be bonded to one individual over the other. Who has more time to spend time with the family pet on a daily basis? Who travels frequently? Who takes the family pet to the vet and to pet playdates? Who has care and control of the children and does this affect a pet parenting plan as the children may be closely bonded to the family pet? These are all important considerations to be mindful of when brainstorming a pet parenting plan.

Pet Timeshare/Visitation Schedule: Similar to a child sharing plan, a pet parenting plan can outline the visitation times you and your ex-spouse will share your beloved pet. You and your ex-spouse can be creative in how you want to divide time with your pet, as long as you both agree to a suitable timeshare. Need some ideas? How about:

Every other weekend and one night a week
One week on, one week off
2-2-5-5 schedule: Parent 1 has the pet for two days. Parent 2 has the pet for the following two days. Parent 1 has the pet for the next five days. Parent 2 has the pet for the next five days and so on.

The above pet parenting schedules are just a few examples of how pet parenting can be divvied up between you and your ex-spouse. But ultimately, a pet parenting schedule should be crafted so it is tailored to what works for you and your ex-spouse. You both may also want to consider pet timeshare during major holidays, which can also include Mother’s Day, Father’s Day, pet birthdays and long-weekends. What happens if your ex-spouse wants to move away to another city? Have an open discussion with your ex-spouse about who will get primary custody of the pet and consider allowing the other pet parent to have time with the pet for the entire summer. If your pet is involved in extra-curricular activities, the party that is responsible to take the pet to these activities should be memorialized in your agreement. These days, there are so many activities that pets can become involved in, including pet play dates with other pets and their owners or even “Yappy Hours” that allow pet parents to meet, mingle and drink with other pet parents and their pets. In the USA, they even have “Hoppy Hour” for those who are bunny parents and where bunnies can mingle and play including agility classes where bunnies learn to hop over obstacles and compete in races! Be creative, it is up to you both as dedicated pet parents!

Shared Costs For Your Pet: Another issue you and your ex-spouse may want to weave into your pet parenting plan is how costs will be shared between the two of you. Having a pet is expensive. There are vet bills to consider, in addition to costs for food, maintenance and grooming. If you have a dog, there may be dog walkers and doggy daycare costs to be considered too. There will also be transportation costs to calculate into the equation when you and your ex-spouse have to transport your pet to and fro from each household.

Assign The Ultimate Decision-Maker: Generally, when parents fight for child custody in Hong Kong in a divorce, one (sole) or both parents (jointly) will be assigned custody over the child, with one parent having care and control and the other parent access. Although pets are not treated with the same legal considerations as a child, this is something that you may want to discuss and consider when sharing a pet with your ex-spouse. For example, who will be the ultimate decision maker when your pet becomes ill? Who will make decisions related to your pet’s death, burial and costs associated with your pet’s death? These are all things you definitely should consider if you and ex-spouse are committed to sharing your pet after a divorce.

Finally, here a few more things to consider when crafting a pet parenting plan which focuses on the mental health of both yourself and your pet!

Talk to a Solicitor, Talk to Your Veterinarian: Pet custody is a real issue, especially now that pets are no longer considered just “pets” but are quickly becoming valuable members of a family. In the event that you establish a pet parenting plan, you may also want to consider consulting with your veterinarian so he or she can give you tips on how to make the transition easier for your pet now that your furry four-legged friend is being shuttled between two households. Like children, pets undoubtedly require a level of consistency between two households.

Consider Talking To A Therapist: In the event your ex-spouse has “custody” of your pet, you may want to consider speaking with a therapist. In a divorce, there is truly a sense of loss and a grieving process that each member of the family must go through. The grieving process may be magnified if you no longer have access to the family pet especially if a close bond was established with the pet during the marriage. It is for this reason why brainstorming a pet parenting plan may be something to consider, especially if it helps lessen the sense of loss you may feel and experience during the divorce process.

Remember to be creative when drafting a pet parenting plan. Like children, focus on what is in the best interests of your pet!

Spotlight Profile: Madeleine Booth, Barrister at Bernacchi Chambers

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