Prenuptial Agreements In Hong Kong

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Prenuptial Agreements In Hong Kong

A common question among those planning to marry is whether a prenuptial agreement is a necessary prior to marriage.  This is dependent on your circumstances but before we delve into whether it is necessary and enforceable in Hong Kong, it is important to know what exactly a prenuptial agreement is.

A prenuptial agreement is a contract between you and your fiancé as you both contemplate marriage.  In a prenuptial agreement, you and your fiancé outline terms that you both agree in relation to issues such as the division of assets and debts upon a divorce.  These agreements may also deal with maintenance for your spouse upon divorce as well.

It is important to note that prenuptial agreements generally do not cover issues related to child custody and child support/maintenance.

Generally speaking, if you are young with minimal assets and this is your first marriage, a prenuptial agreement may not be needed.  If your fiancé has substantial assets that he/she would like to protect in the unlikely event of a divorce, then a prenuptial agreement may be a good idea, giving you and your future spouse peace of mind.

The question then is whether prenuptial agreements are enforceable in Hong Kong.  Hong Kong generally follows UK law and in the UK, there was a case called Radmacher v. Granatino in 2011 whereby the UK Supreme Court declared that the Court should give effect to these types of agreements on the basis that it is freely entered into by each party with an understanding and appreciation of its implications unless of course it would be unfair to do so in the circumstances.  Following this important decision in the UK, the Hong Kong Court of Final Apeal in a 2014 case called SPH v SA stated that the principles in Radmacher should be regarded as the law in Hong Kong.

With that being said, it is important to note that in Hong Kong, this is still a developing area of law and there is no set decision as to whether a prenuptial agreement will be held enforceable in a divorce in its strictest sense.  Unlike jurisdictions like California where the Court will take into consideration the terms of a prenuptial agreement, Hong Kong law is still very new and it effectively depends on the circumstances of each individual case.

It is therefore exceptionally vital for you to consult with a professional matrimonial lawyer who is well-versed in such a subject.  Be sure to provide as much detail to your solicitor so that he/she can provide you with his/her best advice with respect to whether a prenuptial agreement would be your best option in your circumstances because of the importance of having a well-drafted and detailed agreement to protect you in the event of divorce.

Mediating Divorce In Hong Kong

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

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

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

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

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

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

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

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

Moving Forward: Making Mutual Decisions After A Marriage Or Relationship Breakdown

By Special Contributor:  Shanna Quinn

One of life’s most stressful events is separation from a spouse or partner. Although some conflict over parenting and financial issues after the breakdown of a relationship is to be expected, it is not inevitable for disputes to be resolved in a Court of Law.

What Is Family Mediation?

Family mediation is where a professional, trained, impartial mediator helps couples, following a separation, explore options and negotiate a settlement acceptable to both parties.

What Issues Can Mediation Assist With?

 Issues that can be assisted by mediation include, but are not limited to:

CHILDREN

  • Living and care arrangements for children
  • Education
  • Relocation

FINANCES

  • Division of assets including real property, investments, savings, pensions, debts, inheritance, probate matters and house contents
  • Child maintenance
  • Spousal maintenance

DIVORCE

  • Deciding on the divorce process

Benefits Of Mediation

  • Decisions are made by the parties themselves – not by lawyers or by a court
  • It is a faster and cheaper process, avoiding lengthy court proceedings
  • The mediator is neutral and impartial
  • The process provides an informal, confidential and more personalised space to discuss and resolve issues
  • What is said in a mediation is said on a ‘without prejudice’ basis, i.e. whatever is said cannot be used as evidence in a Court. Parties can speak candidly, make and consider concessions and compromises without being worried that they will be used against them later in Court
  • Terms of a mediated agreement may be made into a binding consent order, enforceable at law
  • It can be voluntary or court ordered
  • The process is flexible in terms of whether the parties remain together in the one room or are in separate rooms
  • Legal representation is optional
  • Mutual decision-making encourages ongoing cooperation and helps lower hostility

Who Are The Mediators?

Mediators generally have legal or social science qualifications and substantial professional  experience and have undertaken specialised training. In Hong Kong there is the choice of English, Cantonese or Mandarin speaking mediators. Most mediators have been accredited by the Hong Kong Mediation Council. In Hong Kong parties have the benefit of being able to choose  a mediator, having regard to professional background and experience, cultural and ethnic background, gender and language.

Do I Need A Lawyer?

Legal representation is optional but mediators will encourage parties to seek legal advice prior to signing the Agreement. While the mediator can provide legal information to the parties and reality test parties’ options and their likely consequences, the mediator will not give the parties legal advice.

If lawyers are present it is usual that they adopt a less adversarial and more conciliatory approach in the mediation. If the lawyers do not attend the mediation, parties are free to speak with their lawyer at any time.

How Long Does It Take?

Generally a mediation can be organized within two to three weeks, if not sooner. Factors that impact on the length of time it takes to reach settlement include:

  • Whether the parties have made full and frank disclosure, particularly with respect to financial matters
  • The level of hostility between the parties
  • The number of issues to be resolved
  • The complexity of the issues to be discussed
  • Timeliness of legal advice

 What Is The Process?

While all mediators have their own personal style the process is uniform and involves:

Pre-Mediation

  • The mediator receives the referral
  • Relevant information is given to the mediator
  • The mediator has a confidential, separate preliminary meeting with each party to obtain relevant history, identify the issues and determine the best process, i.e. whether the mediation will involve joint and/or separate meetings with the mediator

The Mediation

Mediators adopt different models, i.e. some mediators prefer to have the preliminary meetings and first session on the same day. Other meditators prefer to separate the processes. Some mediators prefer half day or full day sessions while others operate on an hourly basis.

The Mediation

  • The mediator and parties together identify parties’ respective concerns and issues for discussion
  • An agenda is created to ensure all issues are addressed and prioritized
  • Relevant information is shared
  • Proposals are discussed and options are explored and reality tested
  • Parties reach a mutual agreement

Post Mediation

  • If the Agreement reached in mediation has not already been reduced to writing and signed, the mediator will prepare the written Agreement
  • Parties are encouraged to seek legal advice prior to signing the Agreement
  • Typically, the Agreement is made into a Consent Order, which is prepared by the lawyers and filed in Court.

About Shanna:  Shanna Quinn has built her career on helping individuals and families navigate disputes and conflict in a fair, equitable and conciliatory manner. Her practical approach to your situation, combined with her extensive experience as a Barrister, Mediator and Forensic Social Worker can add significant value to your case.

Shanna has been involved in highly complex and sensitive cases involving family breakdowns, relationship disputes, child protection and domestic violence orders. Shanna is able to quickly comprehend her clients’ needs, is adaptive and can deliver valuable, practical and prompt legal advice, mediation and training.

 

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