Modifying Financial Agreements/Orders Post-Divorce

Dec 15, 2023

Change is constant and one of the things we can count on is that after a divorce, there may be many circumstances that change which require an amendment/modification to agreements and orders made at the time of the divorce.  These changes can involve child custody arrangements, and also financial agreements which were made years beforehand.  What can you do in order to amend or modify financial agreements made either by agreement with your former spouse or through an order by the Family Court?  In this article, we will explore how modifications and amendments can be made and what the Family Court will look at in order to modify/amend financial orders.

  1. How to Modify Financial Agreements/Orders Post-Divorce:
    Generally speaking, if you want to modify or amend a financial agreement, you will need to file a Summons (application) with the Family Court.  Your solicitor can assist with the filing of the appropriate Summons and supporting affidavit in order to request a modification of the previous orders.  Alternatively, if you wish to avoid Family Court intervention, you may want to contact your former spouse or your former spouse’s solicitor through your own solicitor and mediate or negotiate a change in the financial arrangements.  Negotiating a change to your financial agreement through mediation is the easiest, time saving and cost-saving alternative to court litigation and should be considered first before resorting to filing an application with the Family Court.
  2. Consider Negotiating The Financial Modification:
    As mentioned above, it is important to consider negotiating a financial modification rather than simply filing an application with the Family Court. Resolution of an application filed with the Family Court will take a long time as the Family Courts in Hong Kong are backed up with many other applications.  Thus, the waiting time should be considered because you will need to be patient before your case can be heard by a Judge not to mention additional time for the Judge to make a decision about your request which could take months after a hearing. Given that it takes time for the Family Court to hear your case, the prolonged time between filing your application and it being heard will also run up costs which you will incur not only with your solicitor fees but also potential barrister fees if your application is contested before the Judge at a hearing.  It is important to note that even if you go before a Judge, the Judge will usually give you and your former spouse an opportunity to consider coming up with an agreement before he/she makes an Order. Thus, it makes sense that you and your former spouse try and attempt to come up with a compromise, rather than waste time and costs going to Court.
  3. Has There Been A Change Of Circumstances?:
    In the event you and your former spouse cannot come up with an agreement through your own mediation or negotiation, you will need to file a Summons with the Family Court.  In your application, you will want to highlight the reason for the request and explain in detail with proof as to why there has been a change of circumstances.  Change of circumstances can include a loss of job or wages, change of job and wages, medical issues that you may be experiencing and which have resulted in unexpected expenses or your ability to earn a living. You will want to discuss these changes of circumstances with your solicitor so he/she can guide you as to what points should be presented to the Court and what the Judge is likely to consider a good reason for the request for a change or amendment to your financial orders.
  4. Has There Been Any Changes In Need?:
    The types of change of circumstances mentioned above are usually relevant when you are the spouse wanting to modify maintenance orders downwards. If however, you are the spouse wanting to modify maintenance upwards, you will want to provide sufficient reason as to how things have changed that would require the need for more maintenance.  For example, has there been circumstances whereby your child/children have increased costs related to schooling or unexpected medical conditions?

The above is a simple guideline of what you can do if you wish to modify a financial agreement, however each situation will be specific to your own individual circumstance. Depending on how your financial agreement was structured at the time of the divorce, you may not be entitled to modify a financial agreement if there was a “clean break” clause with respect to your spousal maintenance.  It is important to note however, that when it comes to child maintenance there is no “clean break” clause and they can always be modified depending on your circumstances. Generally speaking, in Hong Kong the types of orders that can be varied include: interim maintenance (maintenance pending suit); periodical payments (maintenance), instalments by which a lump sum is payable and an order for sale of a property.  As always, it is important that you speak directly with your solicitor so he/she can guide you through the process and provide adequate advice on whether a modification or amendment can be made, and what you can expect if you file an application to modify or amend a financial order.

Telephone : (852) 2186 1810