Division of assets in a divorce

When a couple decides to file for a divorce, a spouse is entitled to claim for maintenance. The objective of ancillary relief is to provide both parties an equal start to their independent living. Generally, the financially weaker spouse would make an application for ancillary relief to the other spouse in order to maintain his or her living standard after divorce. Generally for divorce cases, Hong Kong courts would follow LKW v DD (2010) 13 HKCFAR 537 and apply the sharing principle for division of assets. Each party would receive half of the total family assets.
However, there are several factors that could justify a departure from the equal sharing principle, meaning that the total assets would not be equally shared between the parties. Section 7 of the MPPO listed out certain factors that the court would consider in deciding whether to depart from the equal sharing principle. In a recent English case of Sharp v Sharp [2017] EWCA Civ 408, a combination of factors has led to the court deciding that departure from the equal sharing principle is allowed. One key factor is the duration of marriage. Normally, a marriage which lasts longer than 10 years would be considered as a long marriage. Matrimonial and non-matrimonial properties in long marriages would be included into total family assets. Assets acquired before marriage would not be excluded. In a short marriage, the court may depart from equality in calculating non-matrimonial properties. Division of properties is unlikely especially in a short marriage without any children, the court would depart from the sharing principle and the spouse may not be able to get half share of the total assets.
The financial arrangement during the marriage would also be considered by the court for determining whether to apply the equal sharing principle. If the couple are both in full-time employment and kept their finances separate in the course of the marriage, it would be a sufficient reason for departure as it could be said that there is no extra contribution to the marriage from both parties. To conclude, it is not definite that the equal sharing principle would be applied for division of assets in an ancillary relief claim. Considering the factors above, it is possible for the court to rule that there are sufficient reasons to justify departure of the equal sharing principle and the spouse may not be able to receive half of the family assets.

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