Unmarried Parents and Child Maintenance

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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.

Domestic Violence in Turbulent Times

The United Nations recently urged action to combat the worldwide surge in domestic violence due to Covid-19 as many victims are now trapped in the same household as their perpetrators.  According to The New York Times, domestic violence hotlines are lighting up with abuse reports and the safety of victims are at the forefront of this crisis and many health specialists state that it is no surprise that domestic violence cases rise when families are forced to spend more time together.

So, what can victims do when they are being terrorized at home during lockdown or when social distancing measures are in place and home is meant to be a “safe zone”?

First and foremost, it is important that victims feel safe enough to reach out to family and friends – finding a way to safely ask for help is the first step.  A second step is to be able to remove oneself from the very space that causes anxiety, fear, intimidation and violence.  Given the dynamics of the current global crisis with Covid-19, many families, friends, organizations and health specialists are providing additional services/assistance to those in need, including private chat groups to alert others you are in need of help.

In Hong Kong, social organizations are also on-hand and available to assist domestic violence victims including Harmony House which has a separate women, men and children hotline or the Social Welfare Department of Hong Kong which provides victim support for family violence.

For your reference, here are the linked websites for Harmony House and the Social Welfare Department of Hong Kong.

  1. Harmony House: https://www.harmonyhousehk.org/eng
  2. Social Welfare Department of Hong Kong: https://www.swd.gov.hk/en/index/site_pubsvc/page_family/sub_listofserv/id_VSPforVFV/

Domestic violence victims can also seek assistance through the Family Court in Hong Kong and are eligible for protection under the Domestic and Cohabitation Relationships Ordinance (Cap. 189).  Under this Ordinance, a victim can apply for an injunction order.

When you apply for an injunction order, you can ask the Court to:

  1. Stop the offender from using violence or threat of violence against you or a child living with you; or
  2. Exclude the offender from the matrimonial home regardless of ownership of the property and to prevent the offender from entering into the home.

These requests can be made by way of:

  1. Non-molestation Order: asking the Family Court to restrain the offender from molesting you or restraining the offender from molesting your child. In Hong Kong, molestation is interpreted to cover use or threat of violence which can be widely interpreted by the Court.
  2. Ouster Order: asking the Family Court to prohibit the offender from entering or remaining in the home, a specified part of the home or specified area whether or not you live in that area
  3. Re-entry Order: asking the Family Court to permit you to enter and remain in the home or a specified part, or permit your child to enter and remain in the home.
  4. Participation in a Programme Order: asking the Family Court to order that the offender participate in a Programme approved by and arranged by the Director of Social Welfare aimed at changing the attitude and behaviour
  5. Variation or Suspension of Custody or Access Order: asking the Family Court to vary or suspend orders with respect to custody or access related to your child in your application.

If the Family Court issues an injunction order to prevent a perpetrator from molesting you and continued harassment, the order may last up to a maximum of 24 months and may be renewed if the Family Court sees fit. Once an injunction order has been made, the perpetrator must comply and if an authorization of arrest has been made by the Court, the perpetrator will be arrested by a police officer if the order is breached.

If you’re a victim requiring Family Court assistance, you can also contact the Family Court directly and even during Covid-19 times, the Family Court is hearing emergency applications so do not be apprehensive about seeking help from the Family Court.

Your application can be filed with The Family Court Registry which is located at:

M2, Wanchai Law Courts, Wanchai Tower, 12 Harbour Road, Hong Kong

Telephone: 852 2840 1218

Fax: 852 2523 9170

Email: familycourt@judiciary.hk

 

To apply for an injunction in Hong Kong, you must fill out the following:

  1. An Application
  2. An Ex-Parte Summons which is an emergency application where there is imminent risk of harm
  3. A supporting affidavit where you outline what actually occurred and it is signed under oath
  4. A draft order containing the orders or remedies you are seeking
  5. An affidavit of personal service to be filed by the server once personal service has been accomplished

When filing your application for an injunction and you prepare an affidavit, be sure to provide as much detail as possible about the molestation and other relevant information including any imminent harm you are in fear of.  The more detailed, the better so the Family Court can issue the appropriate relief based on the information you provide.

Finally, it is important to note that domestic violence does not have to only be characterized by physical abuse, but can also include verbal and psychological abuse.  If you believe you are a victim of domestic abuse, please reach out to family, friends, domestic violence assistance organizations or the police at 999 so you can get the help you need during these turbulent times.

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