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1 Legislative framework
1.1 Which main sources of laws and regulations govern matrimonial and family law matters – including, but not limited to, divorce, judicial separation, children’s matters and financial matters arising from the breakdown of marriage – in your jurisdiction?
Hong Kong has a common law legal system which was developed under the British governance. The main sources of law in Hong Kong governing matrimonial and family law matters are:
- the Guardianship of Minors Ordinance (Cap 13);
- the Separation and Maintenance Orders Ordinance (Cap 16);
- the Matrimonial Causes Ordinance (Cap 179);
- the Matrimonial Proceedings and Property Ordinance (Cap 192) (MPPO);
- the Marriage Ordinance (Cap 181);
- the Married Persons Status Ordinance (Cap 182); and
- the Maintenance Orders (Reciprocal Enforcement) Ordinance (Cap 188) (MOO).
1.2 Which bilateral or multinational instruments have application in this regard in your jurisdiction?
In the context of matrimonial law, the relevant bilateral and multinational instruments applicable to the Hong Kong legal system are as follows:
- the Hague Convention on the Civil Aspects of International Child Abduction, which seeks to protect children from being wrongfully removed or retained from their place of habitual residence. The Child Abduction and Custody Ordinance (Cap 512); was enacted to implement the Convention in the Hong Kong Special Administrative Region (SAR) in 1997;
- the Convention on the Rights of the Child;
- the Hague Convention on the Recognition of Divorces and Legal Separations;
- the Hague Convention on Protection of Children and Co-operation in Respect of Intercountry Adoption, which was given effect by the implementation of the Adoption Ordinance (Cap 290); and
the Mainland Judgments in Matrimonial and Family Cases (Reciprocal Recognition and Enforcement) Ordinance (Cap 639) and Rules, which came into operation in 2022, establishing mechanisms for:
- the registration of specified orders in mainland judgments in matrimonial cases;
- the recognition of mainland divorce certificates; and
- applications for a certified copy of and certificate for Hong Kong judgments in matrimonial cases.
1.3 Which bodies are responsible for enforcing the applicable laws and regulations in your jurisdiction? What powers do they have? What is the general approach of these bodies in enforcing the applicable laws and regulations?
The different law enforcement agencies, including:
- the Hong Kong Police Force;
- the Customs and Excise Department;
- the Independent Commission Against Corruption;
- the Hong Kong Correctional Services Department; and
- the Immigration Department.
Each of these has power conferred on it by the respective legislation.
The Department of Justice also plays an important role in terms of law enforcement by initiating prosecutions in criminal matters.
The Hong Kong judiciary (ie, the court system) also plays a very important role in the administration of justice by:
- hearing all criminal matters and civil disputes; and
- ensuring that justice has been served in accordance with the law.
In international child abduction cases, the secretary for justice is designated as the central authority of the Hong Kong SAR to discharge the relevant functions under the Hague Convention on the Civil Aspects of International Child Abduction. The International Law Division of the Department of Justice is authorised to act on behalf of the secretary for justice in providing international assistance in the return of abducted children and the exercise of rights of access to children.
1.4 Can foreign judgments and orders be enforced in your jurisdiction and if so how?
As mentioned in question 1.2, the reciprocal recognition and enforcement of judgments and orders between mainland China and Hong Kong is governed by the Mainland Judgments in Matrimonial and Family Cases (Reciprocal Recognition and Enforcement) Ordinance (Cap 639).
The MOO governs the recovery of maintenance by or from persons in Hong Kong from or by other persons in reciprocating countries.
Overseas/foreign divorces (and legal separations) can be recognised in Hong Kong if they fulfil the requirements set out in Part IX of the Matrimonial Causes Ordinance.
Following an overseas/foreign divorce, the parties may apply to the court in Hong Kong for ancillary relief claims under Part IIA of the MPPO.
2.1 What are the jurisdictional requirements for the domestic courts to handle matrimonial and family law matters? How do the parties satisfy the courts of such requirements?
The Hong Kong courts have jurisdiction to deal with a divorce if either or both of the parties to the marriage:
- are domiciled in Hong Kong at the date of the petition or application;
- have been habitually resident in Hong Kong throughout the three years immediately preceding the date of the petition or application; or
- have a substantial connection with Hong Kong at the date of the petition or application.
The parties will need to produce evidence if requested by the court to satisfy it of one of the above requirements.
2.2 What are the legal principles governing disputes on competing jurisdictions and what are the determining factors for the court when considering such disputes?
Hong Kong has adopted the principles set out in Spiliada Maritime Corp v Cansulex Ltd  AC 460, as confirmed by the Court of Appeal in DGC v SLC nee C  HKLFR 160, regarding the application for a stay of Hong Kong proceedings in favour of a foreign jurisdiction.
The more recent case of SPH v SA  HKFLR 286 explored the factors for the court to consider when deciding such disputes. First, it is for the applicant to prove that:
- Hong Kong is not the natural or appropriate forum with the most real and substantial connection to the divorce proceedings; and
- the competing jurisdiction is clearly or distinctly more appropriate than Hong Kong.
If the applicant can establish the above, the party in favour of Hong Kong must show that he or she would be deprived of a legitimate personal or juridical advantage if the action were tried in a forum other than Hong Kong.
It is then for the court to balance the advantages for the matter to be heard in the competing jurisdiction against the disadvantages that may be suffered by the other party.
3 Relationships and co-habitation,
3.1 Are there any laws and regulations protecting same-sex and/or co-habiting couples in your jurisdiction? If so, what are they?
Under the Domestic and Cohabitation Relationships Violence Ordinance (Cap. 189), it is expressly provided that both opposite sex and same-sex cohabitees may apply for relief against domestic violence in Hong Kong. The Court can make various types of order including ouster orders to restrain the Respondent from entering or remaining in a specified area, usually the Applicant’s residence; non-molestation orders to restrain the Respondent from molesting and harassing the Applicant and/or specified minor etc.
3.2 Do co-habiting couples have any rights in the event of the breakdown of the relationship? On what grounds can they exercise those rights?
The matrimonial law on Hong Kong does not apply to co-habiting couples except for when there are children involved, in which case the rights of the children will still be protected. Unmarried couples do not have rights to apply for financial relief orders for themselves e.g. division of property and spousal maintenance, under the matrimonial legislations in Hong Kong in the event of the breakdown of the relationship.
The cohabitees can only rely on the common legal remedies available, e.g. breach of contract, claim for resulting, implied or constructive trust in respect of a property in which the other party has contributed to the purchase price and/or mortgage.
3.3 Can co-habiting couples formalise their relationship in your jurisdiction (eg, through a civil partnership or similar)?
No they cannot. In Hong Kong, marriage is defined as “implies a formal ceremony recognized by law as involving the voluntary union for life of one man and one woman to the exclusion of all others (s.40, MO).
3.4 Are foreign civil partnerships, same-sex marriages or similar recognised in your jurisdiction? What requirements and restrictions apply in this regard?
Foreign civil partnerships and same-sex marriages are not recognised in Hong Kong. That being said, civil partners and same-sex spouses from overseas are eligible for dependent visas, if the applicant meets the standard immigration requirements (QT v Director of Immigration  HKCFA 28). They can elect for joint tax assessment or personal assessment jointly with their same-sex spouse, and may claim tax allowance in respect of that spouse (Leung Chun Kwong v Secretary for the Civil Service (2019) 22 HKCFAR 127).
4.1 What is considered a legal and valid marriage in your jurisdiction?
Conditions for a legal and valid marriage: A marriage must be a voluntary union for life of one man with one woman to the exclusion of all others. Both parties must be at least 16 years old. If either party is between 16 and 20 years of age, he or she needs written consent from:
- a parent or guardian; or
- an order of the court, if the former are unavailable.
The parties cannot be of kindred or affinity.
Registration of marriage: To legally marry in Hong Kong, the Marriage Ordinance requires that a notice of intention to marry be submitted to the registrar of marriage in the prescribed form. After receiving the notice, the marriage registrar will display the notice of the intended marriage at the office of the marriage registrar. The registrar will then issue a certificate of marriage at the request of either party of the intended marriage 15 days after receiving the notice but not more than three months from the date. If the parties do not get married within three months of submitting the notice of intended marriage, the submitted notice of intended marriage will automatically become invalid.
Marriage ceremony: A marriage celebration must take place:
- at a marriage registry by a registrar of marriage;
- in a licensed place of worship by a competent minister; or
- at any other place in Hong Kong by a civil celebrant of marriages.
Defective marriage: A marriage that does not comply with the forms stipulated above may not be invalid. However, the marriage will be null and void if both parties in its celebration “knowingly and wilfully acquiesce” in the following:
- The marriage was not celebrated by:
- the registrar in the office of the registrar;
- a competent minister in a licensed place of worship; or
- a civil celebrant;
- The marriage was celebrated under a false name; or
- No notice of intention to marry was submitted.
4.2 Does your jurisdiction recognise common law/de facto marriages as valid marriages?
In Hong Kong, there is no ‘common law’ or de facto marriage. In such relationships, while there are laws protecting parties from domestic violence, financial protection will work only for the benefits of any children. In court, a party to a de facto relationship cannot seek maintenance or entitlement to a capital sum or transfer of property, even if the relationship has been long term. Thus, an unmarried mother is only entitled to a ‘carer allowance’ to support her child rearing, which is usually considerably less than what a married mother receives. In the meantime, the party must rely on general contract or property laws for remedies. For instance, when it comes to property, regardless of whose name the property is registered under, contributing to the purchase price or loan repayments on a property may give rise to a beneficial interest or right to live in the property; as may a common intention that the parties held.
4.3 Are religious marriages, foreign marriages or customary marriages recognised in your jurisdiction? What requirements and restrictions apply in this regard?
In general, religious or customary marriage is not recognised in Hong Kong, except for customary marriages celebrated before 7 October 1971 which are declared to be valid by Section 7 of the Marriage Reform Ordinance (Cap 178). Only a marriage fulfilling the statutory requirements will be recognised.
For a foreign marriage to be recognised in Hong Kong, it must be both essentially and formally valid. Essential validity requires that both partners have the capacity to marry and have consented to the marriage in accordance with the law of their domicile. Additionally, both parties must consent to the marriage and be at least 16 years old. Neither party can be in an existing marriage or be closely related. Formal validity means that the marriage was performed in accordance with the law of the country where it was celebrated. Failure to comply with the formalities of marriage applicable there will result in the marriage being deemed null and void.
4.4 Does a specific marital property regime apply in your jurisdiction?
Hong Kong follows other common law jurisdictions and has adopted the separation of property regime, where all property acquired by each of the spouses – whether before or during the marriage – belong to the acquiring spouse and he or she is free to use and dispose of the property.
5 Pre- and postnuptial agreements
5.1 Are pre- and postnuptial agreements recognised in your jurisdiction? Does this depend on whether the agreement was entered into in the jurisdiction?
Previously, pre-nuptial agreements were unenforceable in Hong Kong courts. However, SPH v SA  17 HKCFAR 364 marked a change in the law. In this case, the Hong Kong Court of Final Appeal followed the principles laid down by the English Supreme Court in Radmacher v Granatino  AC 534 and confirmed that a pre-nuptial agreement should be given decisive weight if each party:
- entered into the agreement of his or her own free will, without undue influence or pressure;
- possessed all the information material to his or her decision to enter into the agreement; and
- intended that it should be effective to govern the financial consequences of the marriage in case of a divorce.
There should also be no circumstances rendering it unfair to hold the parties to the agreement.
As regards postnuptial agreements, the Court of Appeal in L v C  3HKLRD 819 held that the old rule that agreements providing for future separation are contrary to public policy is now obsolete. The court agreed with the UK Supreme Court that such agreements should not be restricted to separation agreements.
Whether pre and postnuptial agreements will be recognised in Hong Kong depends not on whether the agreement was entered into in Hong Kong, but on the factors mentioned above, as well as all relevant circumstances.
5.2 What are the formal and procedural requirements to enter into a valid pre- or postnuptial agreement and what requirements and restrictions apply to the content of pre- and postnuptial agreements?
Aside from the underlying principles set out in question 4.1, the court in SPH v SA endorsed the guiding principles laid down in Radmacher v Grantino when determining the weight to be attached to a nuptial agreement. Essentially, more weight will be given to the agreement where:
- the parties understood the terms and thus made an informed decision;
- the parties received independent legal advice;
- the parties were not under undue influence or duress when entering into the agreement;
- the parties provided full and frank financial disclosure; and
- the parties did not exploit their dominance.
The agreement must also:
- not be unjust;
- be in writing;
- be signed and dated by both parties; and
- be executed before a witness.
5.3 What specific considerations and concerns should be borne in mind in relation to pre- and postnuptial agreements where the parties have international connections (eg, in terms of the location of assets, domicile/habitual residence or future plans)?
In order for the court to give more weight to the agreement, the parties should provide full financial disclosure at the time of entering into the agreement. It thus follows that the parties should disclose assets both in Hong Kong and abroad (if any).
Before they decide on where to enter into the pre- or postnuptial agreement, the parties should consider where they intend to spend their marriage, which will most likely be the jurisdiction in which they would apply for divorce. This jurisdiction should be the one in which they enter into the agreement.
If divorce proceedings are taking place concurrently in Hong Kong and in another jurisdiction, the doctrine of forum non conveniens may be invoked. The court will then determine which jurisdiction is the more natural and appropriate forum in which to commence divorce proceedings and execute the nuptial agreements. The application of this principle is summarised in question 2.2. If the divorce is taking place in Hong Kong and a pre or postnuptial agreement has been entered into in another jurisdiction, the court might ask for expert evidence from that jurisdiction regarding the validity of the agreement.
5.4 Do the regimes discussed in this question have equal application to same-sex couples? If not, please highlight the differences in treatment.
Hong Kong only recognises the marriage of one man and one woman. Civil partnerships and same-sex unions are not recognised in Hong Kong.
5.5 Is the legal status of a separation agreement different from a pre- or postnuptial agreement? If so what are the differences?
A separation agreement is an agreement whereby the parties agree to live separately before proceeding to divorce. It may include terms relating to issues such as:
- the period of separation;
- arrangements for children;
- matrimonial finance;
- assets; and
However, a separation agreement cannot restrict the right to apply to court regarding financial arrangements, the appropriate relief of which is to be determined by the court. Separation agreement is statutorily provided for under Section 14(2)(b) of the Matrimonial Proceedings and Property Ordinance.
In contrast, a postnuptial agreement is entered into during marriage but before separation. The Court of Final Appeal in SPH v SA held that in general, there is no reason to distinguish between prenuptial agreements and separation agreements; although it is accepted that there may be circumstances in which this may be appropriate.
In L v C  3 HKLRD 819 the Court of Appeal held that a separation agreement is not enforceable unless the court believes that:
- it is fair to hold the parties to the terms of the agreement; and
- the parties voluntarily entered into the agreement with a full appreciation of its implications.
The party seeking to avoid the agreement must prove that there are good and substantial grounds showing that injustice would be done by holding the parties to the terms of the agreement, such as:
- a compelling case of drastic change or unforeseeable circumstances;
- unfair or unconscionable circumstances surrounding the conclusion of the agreement; or
- non-disclosure of material information.
It follows that both separation agreements and postnuptial agreements are governed by similar considerations, as formulated in Radmacher (see question 4.1).
If the separation agreement is executed in the form of a deed, it could potentially be enforced via civil action (see H v N (16/11/2011, CACV261/2010)).
6.1 Under what circumstances do the domestic courts have jurisdiction to deal with a divorce initiated by the parties?
The court has jurisdiction if at least one of the following requirements under Section 3 of the Matrimonial Causes Ordinance is fulfilled:
- Either party is domiciled in Hong Kong at the time of petitioning;
- Either party has been habitually resident in Hong Kong for three years immediately before the date of petition; or
- Either party has a substantial connection with Hong Kong at the time of petitioning.
Divorce and matrimonial proceedings are heard in the Family Court of the District Court. Proceedings must be initiated through either:
- a petition for divorce; or
- a joint application for divorce.
If the case involves a difficult point of law or assets of considerable value, either party can apply to transfer the case to the more experienced High Court. Certain matters, such as applications for wardship, must be commenced in the High Court.
6.2 What are the grounds for divorce in your jurisdiction? How do the parties prove these grounds?
The only ground for petitioning for divorce is that the marriage has broken down irretrievably. To prove this, at least one of the facts stipulated in Section 11A of the Matrimonial Causes Ordinance must be satisfied, as follows:
- The respondent has committed adultery and the petitioner finds it intolerable to live with him or her as a result;
- The respondent has behaved in a manner that means the petitioner cannot reasonably be expected to live with him or her (usually, this involves a series of misconduct or intolerable behaviour, but a single incident of grave misconduct will suffice);
- The parties to the marriage have lived apart continuously for at least one year immediately before filing the petition and the respondent consents to the divorce (according to Section 11C of the Matrimonial Causes Ordinance, a husband and wife are not living apart if they are living in the same household);
- The parties to the marriage have lived apart continuously for at least two years immediately before filing the petition, in which case the respondent does not have to consent to the divorce; or
- The respondent has deserted the petitioner for at least one year immediately before filing the petition.
Applications for ancillary relief – such as maintenance, transfer of property or division of matrimonial assets – should be included in the petition. If there are children, the petitioner must include in the petition his or her proposal as to their custody and access.
In case of a joint application for divorce, the spouses must prove at least one of the following conditions to the court:
- The parties to the marriage have lived apart continuously for at least one year immediately before making the application; or
- A written notice (Form 2E) signed by both parties of their intention to apply to the court to dissolve their marriage was given to the court at least one year prior to making the application and was not subsequently withdrawn.
6.3 How does the divorce process typically unfold and what is the general timeline?
The stages of a typical divorce process are as follows:
- filing a divorce petition;
- serving the petition on the respondent;
- applying for a tentative court order for divorce (decree nisi); and
- applying for a final order for divorce (a decree absolute).
Filing a petition: There are different forms to be submitted, depending on whether the proceeding is initiated by a petition or a joint application. In the former case, the spouse commencing the legal proceedings is the petitioner, while the other is the respondent.
Serving the petition on the respondent: The petitioner must serve a sealed copy of the petition on the respondent, either personally or by post. If this fails, the petitioner can advertise the petition in newspaper after obtaining leave from the court for substituted service.
Applying for a decree nisi: If the respondent does not object to the petition, the petition will be set down in the Special Procedure List. If the registrar is satisfied that the contents of the petition or application are proved, both parties will receive a copy of a certificate of such satisfaction setting out the terms that both parties have agreed. Thereafter, the court will grant a decree nisi (a tentative court order) to dissolve the marriage.
If the respondent objects to the petition for divorce:
- the petition will be set down in the Defended List; and
- either or both of the parties may need to attend the court hearing.
The court will then either:
- grant a decree nisi; or
- dismiss the petition if insufficient evidence is found.
Applying for a decree absolute: Six weeks after the decree nisi is granted, the petitioner or the joint applicants can apply for the decree to be made absolute. If the spouses have children, the decree nisi will remain tentative until the court is satisfied with the arrangements that have been made for them.
It is the performance pledge of the judiciary that pronouncing a decree nisi takes:
- 50 days for petitions under the Special Procedure List; and
- 110 days for petitions under the Defended List.
6.4 Can divorce proceedings be finalised while other related proceedings (eg, involving children or finances) are still ongoing?
If there are children who are under the age of 18, the petitioner/applicants must include in the petition/application their proposals as to custody and access. Ancillary relief – such as maintenance, transfer of property and division of matrimonial assets – can also be applied for by listing this in the petition/application. The divorce can be finalised only once the court is satisfied that the said children are the only children of the family to whom section 18 of the MPPO, Cap. 192 applies and the arrangements for their welfare have been made and are satisfactory or are the best that can be devised in the circumstances.
6.5 Is non-judicial divorce available in your jurisdiction? What requirements and restrictions apply in this regard and how does the process typically unfold?
Non-judicial divorce is not available in Hong Kong.
6.6 Are foreign divorces and religious divorces recognised in your jurisdiction? What requirements and restrictions apply in this regard?
An overseas divorce will be recognised in Hong Kong if, on the date on which the divorce proceedings in the foreign country commenced, either party was:
- habitually resident in that country; or
- a national of that country (Section 56(1) of the Matrimonial Causes Ordinance).
However, the foreign divorce may not be recognised as valid if:
- the divorce was obtained by one spouse; and
the other spouse either:
- was not notified of the divorce proceedings; or
- was notified of the proceedings but was not given an opportunity to participate in them.
The divorce will also be refused if its recognition would be manifestly contrary to public policy.
Religious divorce is not recognised in Hong Kong.
6.7 Are separation and/or nullity proceedings available in your jurisdiction? What requirements and restrictions apply in this regard?
Separation: Either spouse can petition for a judicial separation by filing the petition with the Family Court and thereafter serving it on the other spouse. For the court to grant a judicial separation, the petitioning spouse must rely on at least one of the five facts in support of divorce listed in question 2 above. The court will not look for an irretrievable breakdown and will grant the final decree of judicial separation as long as any of the five facts is proven. The final decree of judicial separation does not bar the parties from subsequently petitioning/applying for a divorce.
Nullity: Either spouse can petition for a decree of nullity on any of the following grounds (Section 20 of the Matrimonial Causes Ordinance):
- The marriage is not a valid marriage under Section 27 of the Marriage Ordinance;
- The marriage is invalid under the law of Hong Kong;
- At the time of the marriage, either party was already lawfully married; or
- The parties are not respectively male and female.
6.8 What are the requirements for effective service of the divorce papers on the other party in your jurisdiction and how can the papers be served on the opposing party if he or she lives overseas?
Petitioners can serve divorce petitions out of Hong Kong without leave on an opposing party living overseas. However, service must comply with the law of that foreign jurisdiction (Order 11 rule 5(3)(a), Rules of District Court).
7.1 Does the court in your jurisdiction take the lead to facilitate financial settlement through court processes (eg, through a financial dispute resolution hearing)?
Yes. There is a court process called ‘financial dispute resolution’ (FDR) in which a judge helps the parties to reach a financial settlement, which takes place before the matter is set down for trial.
In an FDR hearing, the judge considers the financial documents – including all settlement offers made by the parties – and acts as a facilitator, assisting the parties in the settlement negotiations by offering his or her insights and indications in relation to the likely outcome of the case (eg, maintenance level, division of matrimonial assets) if he or she were the trial judge.
7.2 Spousal and child maintenance:
- What orders can the court make in relation to spousal and child maintenance on divorce or judicial separation and how are the relevant amounts calculated?
- What general principles apply to spousal and child maintenance? What specific factors will the court consider in deciding which orders to make in this regard?
- When do spousal and child maintenance expire?
- What happens to spousal and child maintenance after the death of the paying party or if the paying party is an adjudicated bankrupt?
- Which bodies are responsible for issuing child support orders in your jurisdiction?
- Does the child support regime vary depending on whether the parents’ relationship was formalised (eg, marriage/civil partnership/co-habitation)?
- Can a child (adult or minor) make a direct claim for child support? If so, under what circumstances?
- What specific considerations and concerns should be borne in mind in relation to child support where the parties have international connections?
- What are the main enforcement methods to ensure compliance with child support awards? What are the typical consequences of breach?
(a) What orders can the court make in relation to spousal and child maintenance on divorce or judicial separation and how are the relevant amounts calculated?
The court may make a periodical payments order and/or a secured periodical payments order requiring one party to the marriage to provide ongoing financial provisions to the other party and/or the children.
Pending resolution of the ancillary relief matters between the parties, the
court may also grant:
- maintenance pending suit; and
- interim maintenance orders on financial provisions for the party in need and the children.
In determining the level of maintenance and the financial orders to be made, the court will take into account:
- the conduct of the parties; and
all circumstances of the case, including the factors (which are not exhaustive) set out in Sections 7(1) and (2) of the Matrimonial Proceedings and Property Ordinance (MPPO) – that is:
- the income, earning capacity, property and other financial resources which each of the parties to the marriage has or is likely to have in the foreseeable future;
- the financial needs, obligations and responsibilities which each of the parties to the marriage has or is likely to have in the foreseeable future;
- the standard of living enjoyed by the family before the breakdown of the marriage;
- the age of each party to the marriage and the duration of the marriage;
- any physical or mental disability of either party to the marriage;
- the contributions made by each party to the welfare of the family, including any contribution made by looking after the home or caring for the family;
- in the case of proceedings for divorce or nullity of marriage, the value to either party to the marriage of any benefit (eg, a pension) which, by reason of the dissolution or annulment of the marriage, that party will lose the chance of acquiring;
- the financial needs of the child;
- the income, earning capacity (if any), property and other financial resources of the child;
- any physical or mental disability of the child; and
- the manner in which the child was being and in which the parties to the marriage expected the child to be educated.
(b) When do spousal and child maintenance expire?
Ongoing spousal maintenance orders can last until the death of either party or the remarriage of the payee, pursuant to Section 9 of the MPPO.
For child maintenance, the court can order periodical payments, secured periodical payments and lump-sum payments for the benefit of the child until the child reaches the age of 18 or completes full-time education, pursuant to Section 10 of the MPPO. The court may also order that the maintenance extend beyond this date if there are special circumstances which justify the extension, such as the child being disabled.
(c) What happens to spousal and child maintenance after the death of the paying party or if the paying party is an adjudicated bankrupt?
Spousal maintenance orders last only for the joint lives of the parties. Child maintenance orders will cease to have effect upon the death of the payor.
The living ex-spouse may make an application for the court to order ‘reasonable financial provision’ from the estate of the deceased payor under the Inheritance (Provision for Family and Dependants) Ordinance (Cap 481) if:
- he or she has been financially maintained by the deceased; and
- the deceased has made no or insufficient provision for the ex-spouse in his or her will.
The child of the deceased will likely be entitled to the deceased’s estate under the intestacy rules or the will of the deceased. If such entitlement is insufficient for the child’s ongoing and future needs, it may be possible to make an application under the ordinance for financial provision of the child.
(d) Which bodies are responsible for issuing child support orders in your jurisdiction?
The Family Court within the District Court in Hong Kong.
(e) Does the child support regime vary depending on whether the parents’ relationship was formalised (eg, marriage/civil partnership/co-habitation)?
No, ultimately the court will prioritise the best interests and the welfare of the child and consider all circumstances.
(f) Can a child (adult or minor) make a direct claim for child support? If so, under what circumstances?
No, a child cannot make a direct claim for child support in Hong Kong; this must be done by the party who has custody of the child.
(g) What specific considerations and concerns should be borne in mind in relation to child support where the parties have international connections?
The parent claiming for child maintenance may consider asking for a secured periodical payment or a lump-sum payment. The parent should also seek a mirror order in the foreign court in the country in where the payor resides, so that the maintenance order can be enforced in that foreign jurisdiction.
Whether the receiving party can enforce a child maintenance order made in Hong Kong in an overseas jurisdiction will depend on whether:
- there is a mirror order in place; or
- there are any laws or treaties that provide for reciprocal enforcement between Hong Kong and the foreign jurisdiction. This is primarily governed by the Maintenance Orders (Reciprocal Enforcement) Ordinance, which sets out a list of reciprocating countries with established procedures to facilitate the recovery of maintenance between Hong Kong and the reciprocating country.
(h) What are the main enforcement methods to ensure compliance with child support awards? What are the typical consequences of breach?
There are several ways in which the payee can enforce a maintenance order. One of them is to issue a judgment summons against the payor parent in default. There will usually be further rounds of disclosure in which:
- the payor parent’s financial means will be examined; and
- the court will determine whether there has been a deliberate breach of the child maintenance order.
The court may then:
- grant an order for the payor parent to pay the payee parent the outstanding amount owed together with interest; and
- even sentence the payor parent to prison if he or she is found to be in contempt of court.
In order to prevent the payor parent from leaving Hong Kong pending recovery of the maintenance, the payee parent may also apply to the court for a prohibition order prohibiting the payor from leaving Hong Kong to assist in the collection of outstanding maintenance payments before the debt is repaid.
In addition, if the court is satisfied that the payor parent will not make payments for child support in full or on time, the court may grant an order for the payor’s income to be paid directly from the payor’s employer to the payee parent to satisfy the whole or part of the amount payable under the maintenance order.
7.3 Asset division:
- What orders can the court make in relation to the division of assets on divorce or judicial separation?
- What general principles apply to the division of assets? What specific factors will the court consider in deciding which orders to make in this regard?
- How does the court treat unreasonable conduct during the marriage in relation to financial matters (eg, reckless spending, gambling, dissipation of assets) when determining on capital division in divorce?
- Is it common for expert evidence to be adduced and used in court (eg, forensic accountants, valuations of companies/properties)?
- Is the family home treated differently compared to other family assets on divorce or judicial separation? If so, how?
- Are trusts recognised in your jurisdiction? How are they treated on divorce or judicial separation?
- What are the main enforcement methods to ensure compliance with financial orders issued on divorce or judicial separation? What are the typical consequences of breach?
- If the parties are in agreement on financial matters, is non-judicial resolution of these possible? What requirements and restrictions apply in this regard and how does the process typically unfold?
- Can the courts make financial orders in relation to a foreign divorce? What requirements and restrictions apply in this regard and who can apply for such orders?
(a) What orders can the court make in relation to the division of assets on divorce or judicial separation?
The court can make the following orders in relation to the division of assets:
- an order for a lump-sum payments, requiring one party to pay the other party a lump-sum payment either on a one-off basis or in instalments;
- a property transfer/settlement order, requiring one party to transfer the ownership of a property to the other party;
- a variation of settlement order, varying the terms of a trust/settlement in place;
- a sale of property order; and
- other remedies as the court sees fit.
(b) What general principles apply to the division of assets? What specific factors will the court consider in deciding which orders to make in this regard?
In ancillary relief proceedings, the court will undertake an inquiry into all the circumstances of the case, having regard to the factors set out in Section 7 of MPPO (see question 6.2(a)). In LKW v DD  6 HKC 528, the Court of Final Appeal established that this inquiry is undertaken having regard to the “underpinning principles” in White v White  1 AC 596 – namely:
- the objective of fairness;
- the rejection of discrimination;
- the yardstick of equal division; and
- the rejection of ‘minute retrospective investigation’.
If the parties have only limited financial resources, the court will focus on dividing the assets of the parties fairly so as to make provision to satisfy the needs of the parties and the children, including their housing and financial needs, if any. With regard to the available assets beyond satisfying the parties’ financial needs, the starting point is a more or less equal division. The ultimate goal is to achieve reasonableness and fairness in the distribution of the couple’s assets, not necessarily a strict 50/50 division. In particular, the court will consider all circumstances: not only the financial contribution of the parties, but also other circumstances – including a party’s non-financial contribution to the family and the household – will be taken into consideration and given sufficient weight as appropriate.
(c) How does the court treat unreasonable conduct during the marriage in relation to financial matters (eg, reckless spending, gambling, dissipation of assets) when determining on capital division in divorce?
While the court generally rejects ‘minute retrospective investigation’ of the parties’ misconduct, it will still consider the parties’ misconduct; but such misconduct must be obvious and gross. A party may ask the court to ‘add back’ the value dissipated arising from the wanton dissipation/reckless dissipation of assets by the other party for the purpose of capital division, as in MD v PIB  HKFLR 351. Material financial non-disclosure and/or a failure to give full and frank financial disclosure may be regarded as misconduct, leading to adverse inferences being drawn by the court against the party at fault in ancillary relief proceedings.
(d) Is it common for expert evidence to be adduced and used in court (eg, forensic accountants, valuations of companies/properties)?
Yes, this is routinely used for the valuation of:
- landed properties; and
- more recently, non-fungible tokens and cryptocurrencies.
(e) Is the family home treated differently compared to other family assets on divorce or judicial separation? If so, how?
It is very likely that the family home, having been the primary residence of the parties during the marriage, will be regarded as part of the parties’ matrimonial assets. Even if it is legally held by one party to the marriage, it is generally accepted that:
- the other party will have a 50% interest in the family home; and
- the court may order that the home be sold and the proceeds be split between the parties.
However, the court will consider all circumstances regarding the purchase or similar of the property in order to make an order which is fair.
(f) Are trusts recognised in your jurisdiction? How are they treated on divorce or judicial separation?
Trusts are recognised in Hong Kong and will be considered by the court in:
- the determination of the parties’ ancillary relief claims; and
- the assessment of the available financial assets and means for the parties.
While it is generally accepted that the assets that are subject to a trust no longer belong to the settlor and rather belong to the beneficiaries of the trust, the family court is in a position to set aside or vary a trust and/or settlement under specific circumstances after considering all factors, such as the power given to one of the parties over the trust. This will depend on factors such as:
- the type and nature of the trust; and
- how and when the trust was created and set up.
(g) What are the main enforcement methods to ensure compliance with financial orders issued on divorce or judicial separation? What are the typical consequences of breach?
Apart from the enforcement methods referred to in question 6.2(h) which are commonly used in the pursuit of outstanding maintenance payments, the payee party make also:
- apply to the court for a charging order on the payor’s landed property; and
- enforce that charging order by applying to sell the landed property charged to satisfy the debt owed.
Similarly, the payee party may also issue a writ of fieri facias to apply for the court to instruct a bailiff to seize movable valuable assets of the debtor and sell them to pay the debt owed.
The receiving party may also initiate garnishee proceedings obligating a third party (which owes debts to the payor party) to pay the outstanding amount directly to the receiving party instead of repaying the payor party. A common example is for the receiving party to apply to the court for the bank with which the debtor has an account to directly pay the receiving party the outstanding amount owed from the debtor’s bank account.
(h) If the parties are in agreement on financial matters, is non-judicial resolution of these possible? What requirements and restrictions apply in this regard and how does the process typically unfold?
If the parties are in agreement on financial matters, they should record and reflect their agreement by way of a consent summons to be filed with the court for approval and made into an order of the court. The court will not approve terms which fall out of its jurisdiction and/or may not be enforceable as an order, despite those terms being agreed and jointly sought by the parties.
It is crucial for the terms of the financial settlement agreement to be recorded in an order of the court; otherwise, it would be difficult for the parties to seek judicial redress or to enforce such agreement in case of non-compliance or breach.
(i) Can the courts make financial orders in relation to a foreign divorce? What requirements and restrictions apply in this regard and who can apply for such orders?
The Hong Kong courts can make financial orders in relation to a foreign divorce, including to order financial relief for an ex-spouse whose marriage has been dissolved or annulled outside of Hong Kong, as governed by Part IIA of the MPPO.
The party seeking financial relief must first satisfy the court that there are substantial grounds for the intended application and thus obtain leave from the court to proceed.
The jurisdictional basis for the court to consider an application for financial relief is similar to its jurisdiction in divorce proceedings in Hong Kong – for example, if it appears to the court that the applicant or any child of the family is in immediate need of financial assistance, the court may make interim maintenance orders.
The Mainland Judgments in Matrimonial and Family Cases (Reciprocal Recognition and Enforcement) Ordinance (Cap 639) also sets out the rules and jurisdiction of the Hong Kong courts to enforce financial orders under specific categories from the mainland.
8 Child custody
8.1 What general principles apply to custody and access arrangements? What specific factors will the court consider in deciding which orders to make in this regard?
In all matters regarding children, the general principle to be considered by the court is the best interests of the child, as set out in Section 3 of the Guardianship of Minors Ordinance (GMO).
Under normal circumstances, the court will usually grant an order for joint custody, as the prevailing view is that it is in the best interests of a child to have both parents cooperating and jointly making decisions on matters which are important to his or her upbringing, such as choice of schools, religion and medical decisions.
Care and control of a child can be sole or shared. If one parent has sole care and control of the child, the other parent will be granted access to the child – that is, he or she will be able to visit the child or even have overnight access to stay with the child.
When making orders, the most important thing that the court will consider is what is in the best interests of the child. Various factors will be taken into account by the court in making orders regarding custody, care and control or access, including:
- the financial resources that each party has;
- the accommodation which will be available to the child;
- the status quo;
- whether the parties and child have any mental or physical health issues;
- the character and competence of each party;
- the child’s views and wishes (if the court thinks that the child is old enough to express his or her views); and
- the views of social welfare workers or professionals given in professional reports and so on.
8.2 Are unmarried couples/same-sex couples entitled to the same claims as married couples in relation to children? Are legitimate and illegitimate children treated identically by the court in your jurisdiction?
Unmarried couples can refer to the GMO for their rights and authority in relation to their child. The mother of an illegitimate child has the same rights and authority as a married mother; whereas the father of an illegitimate child will need to make an application for a declaration under Section 3 of the GMO, such that he will have some or all of the rights and authority that he would have as a married father.
While same-sex marriage and civil partnerships are not currently recognised by Hong Kong law, the Court of First Instance in AA v BB  HKCFI 1401 ruled that same-sex partners can enjoy parental rights over their children. The non-biological parent of a child born by a former same-sex partner should be granted guardianship rights, joint custody and shared care over his or her children.
8.3 Does the court in your jurisdiction take the lead to facilitate settlement regarding children matters through court processes (eg, through a child dispute resolution hearing)?
Yes. The Family Court has introduced children’s dispute resolution (CDR), a process which helps parents to reach agreement on matters concerning their children in a less adversarial manner.
At the CDR hearing, the judge will:
- help the parties to discuss their issues;
- negotiate an agreement on matters concerning their children;
- give indications on the specific issue(s) in dispute and what decisions might probably be made in trial; and
- put forward alternative proposals for parties to consider.
The ultimate goal is to help the parties to reach agreement and save the parties time and costs by avoiding proceeding to trial.
8.4 What kinds of experts will the court engage to assist it in deciding on what is best for the children (eg, designed social workers, clinical psychologists)?
The court may:
- request reports from social investigation officers (from the Social Welfare Department) and/or clinical psychologists to investigate the relationship between the child and his or her parents;
- interview relevant parties and the child; and
- make recommendations on what would be best for the child.
8.5 What requirements and restrictions apply to the removal of a child from the jurisdiction, both temporarily and permanently? What factors will the court consider in deciding on such a request?
The court’s approval to remove a child from the jurisdiction is required if the parties are going through a divorce and cannot agree with each other on matters relating to the child. If a parent would like to remove a child from Hong Kong (either temporarily or permanently) and the other parent agrees to this, their agreement can be recorded and confirmed by signing a consent summons with the court. The party that wishes to remove the child must also sign and file an undertaking that he or she will bring the child back to Hong Kong:
- after a trip (for temporary removal); or
- when requested to do so by the court (for permanent removal).
If the parties cannot reach an agreement, the party that wishes to remove the child from the jurisdiction must take out an application by way of summons to seek leave from the court for such removal. For permanent removal, a relocation application must be made by way of summons and a supporting affirmation. The other party will usually be directed to file an affirmation in opposition. A trial will take place for the court to hear the parties’ evidence and submissions.
The Hong Kong courts have adopted the position set out in the landmark case of Payne v Payne  EWCA Civ 166. When hearing such application, the court will generally consider the following factors (this list is non-exhaustive):
- whether the application is genuine;
- whether the relocation plan of the applicant is realistic (eg, arrangements on accommodation, schooling, employment for the relocating parent);
- the basis of the other party’s objections;
- the financial resources of the relocating parent;
- the non-relocating parent’s access to the child upon relocation;
- the impact on the applicant if leave were not granted; and
- the child’s best interests and welfare.
8.6 What regime applies to the international abduction of children in your jurisdiction?
The Child Abduction and Custody Ordinance (Cap 512) in Hong Kong adopts the provisions in the Hague Convention on the Civil Aspects of International Child Abduction to:
- protect children from wrongful removal from Hong Kong; and
- establish a set of procedures to ensure the prompt return of children to their habitual residence between signatories to the convention.
Hong Kong a signatory to the Hague Convention.
If a child has been abducted to a jurisdiction which is not covered under the Hague Convention, other methods will need to be used for the return of the child, which might require the parent to issue proceedings in the country to which the child has been abducted for a return order in relation to the child.
9 Surrogacy and adoption
9.1 What laws and regulations govern surrogacy agreements in your jurisdiction? What specific considerations and concerns should be borne in mind in this regard?
Surrogacy arrangements in Hong Kong are governed by the Human Reproductive Technology Ordinance (Cap 561) (HRTO), which regulates:
- reproductive technology procedures;
- embryo research; and
- the proper storage and disposal of embryos and gametes to be used for such purposes.
Pursuant to Section 14 of the HRTO, only the gametes of the parties to a marriage can be used in a surrogacy arrangement. Section 15 of the HRTO prohibits sex selection and the provision of reproductive technology to unmarried couples.
While the HRTO allows for surrogacy arrangements which do not involve any commercial element, pursuant to Section 18 of the HRTO, no surrogacy arrangement is enforceable by or against any of the persons who enter into it.
9.2 Are surrogacy arrangements legal in your jurisdiction?
Commercial surrogacy arrangements are illegal in Hong Kong under the HRTO. Anyone who is found guilty of the same will be liable to a fine and to imprisonment for six months on first conviction.
9.3 Are the commissioning parents recognised as legal parents in your jurisdiction and what do they need to do to establish a legal relationship with their children born through surrogacy arrangements?
Under the Parent and Child Ordinance (Cap 429) (PCO), the person who gives birth to a child – that is, the surrogate mother in a surrogacy arrangement – will be regarded as the parent of the child, unless a parental order or adoption order is granted to make the commissioning parents the legal parents. Therefore, the commissioning parents should apply for a parental order pursuant to Section 12 of the PCO.
9.4 What laws and regulations govern adoption in your jurisdiction? What specific considerations and concerns should be borne in mind in this regard?
The law in relation to adoption in Hong Kong is governed by the Adoption Ordinance Cap 290.
Adoption involves the transfer of custody and guardianship from the parent(s) or guardian(s) of the child concerned to the adoptive parents. All parental rights, duties, obligations and liabilities of parents are then vested in the adopters.
Pursuant to Section 4 of the ordinance, adoption applications can be made by sole applicants or by married couples as joint applicants. A sole applicant is eligible if he or she:
- is the mother or father of the child;
- has reached the age of 21 and is a relative of the child;
- is married to a parent of the infant; or
- has reached the age of 25.
Unless the court is satisfied that there are special circumstances, generally it will not make an adoption order for a female infant in favour of a sole applicant who is a male.
9.5 Do the regimes discussed in this question have equal application to same-sex couples? If not, please highlight the differences in treatment.
No. Same-sex couples cannot apply to the court to adopt a child together as joint applicants, as same-sex marriage is not recognised in Hong Kong. In reality, what usually happens is that one spouse applies to adopt the child as a sole applicant; only that spouse has custody and guardianship of the child legally, unless a subsequent order on guardianship or similar is granted to the other parent by the court.
10 Dispute resolution
10.1 What alternative dispute resolution (ADR) methods to resolve family law matters are available in your jurisdiction?
Family mediation: Family mediation was introduced in Hong Kong in 2000. Parties can enter into it voluntarily; and once a mediated agreement is reached, the parties have to apply to the court for an order to make the agreement enforceable.
Collaborative practice: This is a voluntary process through which the parties to a family dispute enter into a contractual agreement with trained collaborative professionals – such as lawyers, health professionals and financial specialists – to work collaboratively to resolve the parties’ issues by finding mutually acceptable solutions. The agreement reached must be made into an order of the court.
Private financial adjudication (PFA): This is a pilot scheme for parties to settle financial disputes in matrimonial and family proceedings with the assistance of an appointed adjudicator. PFA can be used in the following proceedings:
- applications for ancillary relief, financial orders and/or financial relief based on Part II and Part IIA of the Matrimonial Proceedings and Property Ordinance (MPPO) (Cap 192);
- applications for maintenance and/or financial orders under the Guardianship of Minors Ordinance (Cap 13);
- applications under Section 3 of the Separation and Maintenance Ordinance (Cap 16) for an order for payment under Sections 5(1)(c), 5(1)(d), 5(1)(e) and 9 of the ordinance;
- applications for financial provision under the Inheritance (Provision for Family and Dependants) Ordinance (Cap 481);
- applications of a financial nature in matrimonial and family proceedings to which the court agrees that the procedure should apply; and
- applications for costs regarding any of the above applications or proceedings.
Private financial dispute resolution (FDR): Private FDR is usually conducted by retired judges or experienced family law practitioners who are appointed jointly by the parties, and who facilitate the negotiations between the parties with a view to reaching a settlement. The process is more or less the same as the FDR process in the judicial process.
Family law matters are non-arbitrable.
10.2 What specific considerations and concerns should be borne in mind in relation to ADR of family matters in your jurisdiction?
Mediation: Family mediation may not be suitable for all family disputes and requires an intake interview to assess suitability. Legal advice can be sought at any stage and both parties have the right to terminate the mediation at any time. Agreements made in mediation are not legally binding but can be made into a court order after seeking legal advice.
Although mediation is not mandatory in family disputes, the court will encourage the parties to attempt mediation to resolve their differences. Parties who unreasonably refuse mediation might be subject to cost consequences.
Collaborative practice: Lawyers and parties in collaborative practice are focused on reaching a settlement; and if a settlement cannot be reached, the collaborative lawyers cannot represent the parties in any subsequent litigation. That said, collaborative practice has a high success rate, with an estimated 90% of disputes settling when this process is used.
PFA: PFA applies only to financial disputes and does not affect proceedings of any matrimonial cause (eg, divorce, nullity, judicial separation). Once PFA is adopted, the court will not try the issue on financial matters. Both parties must:
- agree to avail of the PFA process;
- jointly appoint an adjudicator; and
- agree to be bound by the adjudicator’s decision, which must be approved by the Family Court.
There are very limited situations in which the decision can be challenged, such as in case of an error in law. Parties participating in PFA must sign a PFA agreement setting out the key terms for approval by the court, including the following:
- whether the parties have attended family mediation or an FDR hearing;
- the scope of the issues to be dealt with during the PFA process;
- a joint application by the parties for the court’s approval for the appointment of a private adjudicator and the commencement of PFA once the agreement has been signed. Court proceedings between the parties will also be stayed pending the PFA;
- the parties’ agreement to be bound by the adjudicator’s decision, which will be deemed final unless the court exercises its overriding discretion as to whether and under what terms to make the order embodying the decision; and
- a PFA report and a consent summons setting out the terms of the adjudicator’s decision, in accordance with which the parties will dispose of their matrimonial assets.
10.3 What specific considerations and concerns should be borne in mind where family law disputes involve foreign parties?
The parties may have to serve documents in matrimonial proceedings out of Hong Kong in foreign jurisdictions without leave of the court (Rule 109 of the Matrimonial Causes Rules). However, the parties must comply with the laws and rules on service of documents in that foreign jurisdiction (Order 11 rule 5(3)(a), Rules of District Court).
The issue of competing jurisdictions and forum non conveniens may also arise if the opposing foreign party has already initiated or intends to initiate family proceedings abroad (please see question 2.2 for a summary of the applicable principles).
If one party intends to seek financial relief under the MPPO, and the other party intends to defeat the claim for financial provision and is about to make or has already made any disposition, or has sought to transfer assets out of the jurisdiction, the party may apply to the court for an order to restrain or set aside the disposition of assets (Section 17 of the MPPO).
There are also enforcement issues, relocation issues and other issues such as child abduction which have already been covered elsewhere in this Q&A.
11 Domestic violence
11.1 How can a party seek immediate assistance from the court in a domestic violence situation to protect himself or herself and the children, and what kinds of orders can the court make in this regard?
A party can make an application to the Court of First Instance or the District Court for an injunction/restraining order under the Domestic and Cohabitation Relationships Violence Ordinance (Cap 189) (DCRVO). The court can grant the followings type of injunctive orders:
- a non-molestation order, prohibiting the respondent from molesting the applicant;
- an ouster order, prohibiting the respondent from going into or staying in the home of the applicant; or
- where the applicant is being restrained by the respondent from entering his or her home, a re-entry order, which allows him or her to enter and stay in the premises.
Ouster orders and re-entry orders are valid for up to 24 months and can be renewed once if the court finds this appropriate.
11.2 Are there any differences in terms of the protection offered in a domestic violence situation between married and unmarried couples and their children?
Both married and unmarried couples and their children can seek injunctive relief under the DCRVO. If unmarried couples reside or previously resided together, they qualify as cohabitants or former cohabitants and can seek the court orders mentioned in question 10.1 pursuant to Section 3B of the DCRVO.
11.3 How are these orders enforced and by whom?
An order granted by the court pursuant to the DCRVO may be accompanied by an authorisation of arrest. If the respondent does not comply with the order, police officers can apply reasonable force, enter the premises and arrest the respondent without a warrant.
11.4 How soon will the party’s application be dealt with in these circumstances?
An injunction is usually applied for on an urgent basis; hence, an application can be dealt with within a few days or within one to two months’ time.
11.5 Does the court have inherent jurisdiction to make a child a ward of court?
Yes, a child who is under 18 and who is present or habitually resident in Hong Kong can be made a ward of the court if the court finds that this would be in the best interests of the child. Wardship proceedings can be initiated by:
- the parents or carer of the child;
- the Social Welfare Department; or
- a judge.
Once a child has been made a ward of court, all parental responsibilities, duties and authorities are vested in the court; therefore, all important decisions relating to the child will require the consent of the court.
12 Trends and predictions
12.1 How would you describe the current family law landscape and prevailing trends in your jurisdiction? Are any new developments anticipated in the next 12 months, including any proposed legislative reforms?
Hong Kong is committed to resolving family disputes in a constructive and efficient way, and continually brings in new laws and practice directions with the aim of improving the system and streamlining procedures and mechanisms. For example, in 2022, the Mainland Judgments in Matrimonial and Family Cases (Reciprocal Recognition and Enforcement) Ordinance was enacted, giving effect to the Arrangement on Reciprocal Recognition and Enforcement of Civil Judgments in Matrimonial and Family Cases by the Courts of the Mainland and of the Hong Kong Special Administrative Region. This statute facilitates the recognition and enforcement of judgments between Hong Kong and mainland China, reducing the risk that the same issues may need to be litigated both in Hong Kong and in mainland China.
Another important statute that may be introduced before the end of 2023 is the new Family Procedure Ordinance, which would consolidate and unify the existing procedural rules and laws scattered across different ordinances and thus become the single primary statute governing court procedures on family matters. The new ordinance aims to address the current deficiencies and introduce procedural reforms that will facilitate the efficient disposal of proceedings.
There are also calls to reintroduce the Children Proceedings (Parental Responsibility) Bill, aimed at reforming and consolidating the law in relation to parental rights and responsibilities in proceedings involving children. This was previously shelved in 2018.
13 Tips and traps
13.1 What would be your recommendations for managing relationship breakdown as painlessly as possible in your jurisdiction and what potential pitfalls would you highlight?
- Before marriage, if the parties have substantial assets, seek legal advice as to whether a prenuptial agreement should be drafted and executed.
- During the marriage, it may be a good idea to enter into a postnuptial agreement – for example, in case of any significant changes in the parties’ financial positions.
- If separation is anticipated, advice should be sought as soon as possible on separation (eg, a separation deed) and on the legal position relating to financial and/or children matters in case of divorce, such that the parties know what to expect and can consider their options and try to settle matters as soon as possible in order to save costs and time by avoiding litigation.
- The parties should be introduced to the idea of alternative dispute resolution as early on as possible, as well as during the proceedings, so that they can try to settle matters amicably. Practitioners should also use their best endeavours to try to help the parties to settle.
- During the divorce proceedings, the parties should be reminded to prioritise the best interests of the children, to keep them focused on resolving matters for the sake of the children.
Pitfalls and traps:
- The parties should not agree to any kind of settlement if either of them is unaware of the financial position of the other party and before full and frank financial disclosure.
- Sometimes the parties are too caught up in their own emotions and cannot see the bigger picture. It is therefore the job of their lawyers as well as mental health professionals to help them put their emotions aside and look at the issues objectively and rationally.
Co-Authored by Able Au
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