Seek legal advice before divorce

Reasons why you should act promptly and seek legal advice before the divorce

In the unfortunate event that your marriage breaks down and a divorce is under consideration, you should seek legal advice from solicitors promptly and be informed of your rights. With the assistance of a professional legal team, it is possible to settle your divorce without meeting your spouse. This article aims to discuss the 3 main issues most divorce cases are concerned with: custody of the children, maintenance payments and division of matrimonial properties.

 

  1. Custody, care and control and reasonable access

Under section 19 of the Matrimonial Proceedings and Property Ordinance (Cap.192) (the “MPPO”), the court is empowered to make orders as it thinks fit for the custody and education of any child of the family who is under the age of 18 and involved in proceedings for a divorce. Any orders made shall cease to have effect when the child attains the age of 18.

There are 3 kinds of orders that the court may make: (i) custody, (ii) care and control and (iii) access.

Custody refers to the right to make all important decision of real consequences in safeguarding and promoting the child’s health, development and general welfare. The court may make an order of sole custody or joint custody. The difference between sole custody and joint custody is that the parent with sole custody has the final decision in the joint endeavour to raise the child whereas in a joint custody, both parties have to agree on questions determining the upbringing of their child. A parent without custodial status is nevertheless entitled to know and be consulted about the future education of the child and other major matters.

In the case of PD v KWW [2010] 5 HKC 543, it was held that the court will presume that competent and loving parents possess the objectivity to be able to make rational decisions in the interests of the child and be able to cooperate. The court is more inclined to make an order of joint custody unless there is evidence that it would not be in the child’s interests to compel attempts at cooperation.

Care and control refer to the right to make a host of day-to-day decisions arising out of the fact that the parent has physical control of the child and responsibility of attending to the child’s immediate care. In recent years, the court is more inclined to order shared care and control, rather than ordering for care and control to one parent and access to another, especially where neither parent was the dominant primary care giver over the other parent before the divorce.

Alternatively, if sole care and control was granted to one parent, the other parent would be granted access. Access refers to the right to spend time with the child on a visiting or staying overnight basis and maintain contact with the child. The court usually orders for reasonable access and leave the parties to sort out the details of the access. If the parties cannot come to an agreement, the court may make an order of defined access to specify the time, place and practical arrangements of access visits.

In determining the orders to be made, the court will first consider the welfare of the child and take into account the following factors:

  • preservation of the status quo;
  • ages of the parent and child;
  • personality, capability and character of the parents;
  • financial resources of the parents;
  • physical and mental health of the parents and child;
  • accommodation available to the child;
  • the child’s own wishes and views, having regard to the child’s age and understanding of the circumstances;
  • nature of relationship of the child with each parent;
  • the benefit of keeping the siblings together with one parent; and,
  • professional reports such as medical, school or court’s welfare reports.

 

  1. Maintenance and interim maintenance (Cap.192 s3-5)

By virtue of sections 3 to 5 of the MPPO, party to a marriage in cases of divorce and children of the family are entitled to maintenance payments both during a pending suit of divorce and after the divorce.

In deciding who should make maintenance payments, the court takes into account conduct of the parties and all circumstances relating to the case, including the following matters:

  • the income, earning capacity, property and other financial resources which each of the parties has or is likely to have in foreseeable future;
  • the financial needs, obligations and responsibilities which each of the parties 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 and duration of the marriage;
  • any physical or mental disability of either of the parties;
  • the contributions made by each of the parties to the welfare of the family, including any contribution made by looking after the home or caring for the family;
  • the value to either of the parties of any benefit which by reason of the dissolution of the marriage, the party will lose the chance of acquiring (e.g. a pension).

In relation to a child of the family, the court will exercise its powers to put the child in the financial position in which he would have been if the marriage had not broken down and the parties to the marriage had properly discharged their financial obligations and responsibilities towards him. The court will, thus have regard to the following matters:

  • financial needs of the child;
  • the income, earning capacity, property and other financial resources of the child;
  • any physical or mental disability of the child;
  • the standard of living enjoyed by the family before the breakdown of the marriage;
  • the manner in which the child was being and in which the parties to the marriage expected him to be educated.

The court may order maintenance payments in form of periodical payments or a lump sum payment. Usually orders of periodic payments to the spouse cease on remarriage or on the death of either party and that to the child cease when the child attains 18 years of age or has completed whole-day schooling.

 

  1. What is nominal maintenance?

A nominal maintenance order can be claimed by the wife to preserve her rights to apply for a maintenance order in the future if she does not need any maintenance payments at the time of divorce or if it is not possible to show any present ground for awarding maintenance. The order may entail a payment of HK$1 per annum which is never actually made in practice. A nominal maintenance order is susceptible of variation and the wife might be entitled to a larger maintenance payment in the future. Without such a peg in the proceedings, the court has no jurisdiction to make any future order.

 

  1. Division of matrimonial asset

In Hong Kong, all matrimonial assets will be assessed and fairly distributed. In principle, either spouse is entitled to an equal distribution of the assets, unless there is good reason to the contrary.

In the case of LKW v DD [2010] 6 HKC, the court has adopted the definition of matrimonial assets as things that were acquired by one or both parties to a marriage, with the intention that there should be continuing provision for them and their children during their joint lives and used for the benefit of the family as a whole. This class of assets include family homes, holiday homes, furniture, insurance policies, family savings and family businesses. Assets that were acquired from a source wholly external to the marriage (e.g. gift or inheritance), assets that were acquired prior to the marriage and assets derived from a business or investment conducted solely by one party would be considered non-matrimonial assets. The distinction between matrimonial assets and non-matrimonial assets is important in a short marriage but carries less weight in long marriages, given that a family’s personal and financial interdependence grows over time.

 

  1. How to deal with matrimonial home

In dealing with the matrimonial home, the court will consider the important financial need of having a roof over each party’s head and the interests of the children of the family to ensure a secure home for the children with reference to the standard of living they had enjoyed prior to the divorce.

The court is flexible and may elect to make the following orders which the court is satisfied:

  • order for transfer of property;
  • order for transfer of tenancy;
  • order for settlement of property (e.g. that the property be held on trust for sale for the parties until the youngest child has finished full-time education); or,
  • order for sale of property and for division of the proceeds.

 

When processing a divorce, we understand that you might be dealing with unsettling emotions and thoughts, which is why you should let your legal representatives take care of the legal procedures at the earliest time. Your legal representatives will be able to take some of the load off your burden and help you handle all the necessary paperwork. Please feel free to contact us at 69776708 for Mr Lam or make an appointment.

Leave a Reply

Your email address will not be published. Required fields are marked *