KELLETT-HK-LEADERBOARD-31AUG2022

Family Life

VIDEO! Divorce In Hong Kong: Your Questions Answered Around Children’s Welfare And Protection

Little Steps Chats With Jocelyn Tsao, Family Lawyer and Partner of Withers Worldwide About Key Divorce Questions

Child Custody And Wellfare During Divorce Hong Kong

The breakdown of a relationship is always difficult, particularly if there are children involved. Unfortunately, separations have become more challenging in Hong Kong, due to its stringent Covid-19 measures. Some parents have had to immigrate and have taken their children with them, potentially without the other parent’s consent. Even if both parents are in Hong Kong and the divorce is amicable, there is still much to negotiate. Such as, ironing out proceedings relating to children, which involves custody, child support, visitation rights, assignment of parental responsibilities, discussing maintenance payments, division of property and other assets, and pre/post-nuptial agreements. These are all tricky subjects to discuss and often more difficult to agree on.

In this important video, Little Steps Asia chats with Jocelyn Tsao, a partner at Withers Worldwide, who has more than 15 years of experience in advising couples and unmarried partners on issues arising from divorce including childcare and control, and financial proceedings. Dealing with issues like child custody, financial proceedings, and resolving disagreements through mediation, and mak which are settlements outside of court and court litigation. She has handled complex divorce issues, including financial disputes with substantial onshore and offshore assets, and cases that have cross-jurisdictional and cross-border elements. And Jocelyn has joined us today to provide us with useful tips on handling everything from child custody to maintenance payments and financial matters. So we can ensure our kids’ welfare is a top priority!

  • Questions TO Ask In Divorce Hong Kong

    DIVORCE IN HONG KONG: Questions On Child Custody & Guardianship

    A few basic concepts to understand in regards to Child Custody.

    • Child Custody (Legal Concept) - This means the parent's participation in the major decision-making for the child.  This includes where they should be educated, medical decisions, where kids should live, etc.  The courts generally encourage parents to have joint custody.
    • Care And Control (Another Concept Focused On Day-To-Day Living Arrangements) - This refers to with whom the child lives and can be an emotional discussion for parents as they tend to focus on the parental rights of this concept.  Many parents go to court over the concept of "care and control" because they are very focused on the terminology.  It's encouraged to look at this concept and negotiate less from a position of rights as a parent and instead, negotiate from the standpoint of what is best for the children and put more emphasis on the delegation of roles.  Each parent plays a role and if parents can focus on maintaining that role after separation - it can be an easier negotiation. You can have shared care and control or you can have one parent with sole care and control while the other parent has access.  Note, this concept is a Hong Kong legal concept and in other countries (like UK), there is no longer the concept of one parent having "care and control".

    1. What is the best way to negotiate child custody so both parties are happy?

    • Shared Care And Control - This typically means splitting the time between the parents.  This could mean you split week on/week off or in a way that works with the children's schooling, activities, and routine. There are many ways as to how time can be split between the parents to achieve more or less an equal amount of time with the children.
    • Mediation (Not Litigation) - This is the best way to discuss and negotiate care and control.  There are a lot of details that need to be discussed including kids' daily routines, the drop-offs, etc.  If you leave this to the courts, the judge will decide the outcome.  It's in the parents' and kids' interest to have this worked out between the parents themselves.  Mediation involves a third party that helps parents resolve the differences and work through tedious/minute details.  Note, that mediation does not typically involve lawyers (this also helps save on legal costs).   Sometimes lawyers do get involved, but it's typically at the end when there are just some key issues that need legal assistance.
    • CDR Hearing - - If mediation is not successful, the next step before litigation would be a CDR Hearing which includes a judge acting in the role of almost like a mediator. The judge gives an indication of what he/she thinks is best given the facts of the case but the judge will not make a decision.  The idea behind this is to help parties settle.  If this is not successful, then you will go to trial.  Most parties do settle at this stage.

    2. What if one parent relocates to another country and the other parent does not agree? 

    • Relocation - It is very difficult to settle this through mediation as there is no middle ground.  It's encouraged to really break it down in terms of the concerns.  There might be concerns around getting enough time with the kids or perhaps a parent not being cooperative once they move to another country.  There are ways to reassure the other parent in these cases.  Examples - more holiday time with a parent, and reassurance on the mirror order (registering the order in that country).
    • Shared Care And Control -With relocation, the parent that is not relocating with the kids would have access so there cannot be Shared Care And Control.  Arguing for relocation therefore would entail the relocating parent having care and control.
    • The Hague Convention - It is important to understand what this means.  Even if you have sole custody of your child and you want to relocate, you are still required to get the other parents' consent.  If the parent does not agree, and you still relocate or travel, that parent can invoke The Hague Convention on international child abduction.  Central authorities
      between countries will facilitate the child being returned to Hong Kong for example.
    • Wrongful Retention - This has come up recently given COVID. Parents have left Hong Kong during COVID (with the other parents' consent) but after a period, the parent with the children that has left no longer wants to return.  This would then be Wrongful Retention as it was agreed that they would leave temporarily but not permanently.

    3. How do we handle custody if a child, or children, say they only want to spend time with one parent?

    •  Try to understand why this is an issue.  You need to investigate and get to the real cause.  Is this a result of manipulation (alienation)? Or, is it a general fear of the other parent?  The best way to address this is to involve a child psychologist to get to the root of the issue regarding the resistance to seeing one parent.  If it is a case of manipulation, the advice is to stop - be careful of what is being said in front of the child.  It's important to always put your child's best interests at the forefront of your mind.  Parents can then work with a child psychologist to ease the relationship using tools and techniques to address the root issue at play. Also, the parents should work to make sure the child saying NO does indeed follow through with the planned schedule.

    4. When both parents are away for reasons like compulsory quarantine arrangement, a “Deed of Guardianship” is needed for the child?

    • Deed Of Guardianship:  This is a document in which parents appoint someone to have physical custody of their child/children and represent their interests when you are not around.  You can appoint someone to handle your child's requirements while you are not available.  You should think about who is best for this role.  You can also appoint successor guardianships.  Domestic Helpers can be appointed but as they are employed by you, it's not advisable.  It is ideally close to family and friends.
  • Financial Divorce Hong Kong - Questions To Ask

    DIVORCE IN HONG KONG: Questions On Financial Issues And Negotiation

    1. Must a divorce go through court and be expensive?

    • How To Minimize Legal Divorce Fees (Affordable Divorce In Hong Kong)? The recommendation is to either discuss and agree between yourselves or work through a mediator (mediation).  It is important if you are working through it yourself that you still do seek legal feedback from a lawyer for the actual drafting of the agreement. It's important to get all the standard clauses to protect both parties.  If parties have no means to involve lawyers through the process, they can represent themselves.  You can litigate yourself (which can work if you are confident and it's simple and if parties are not acrimonious).  There are documents online for filing pleadings.  It can be time-consuming but it can be done.  If there are a lot of financial issues involved, it's advisable to talk to a lawyer.

    2. What is the best way to sort out arrangements for maintenance
    payments?

    • Maintenance Types 1. Spousal (also known as alimony) 2. Child Maintenance (also known as child support)
      The best way to sort this out is to do a breakdown of your monthly expenditures. You need to figure out how much you spend monthly (historical expenses) - you then know what your needs are and your kid's needs are in numbers.  You can then consider the incomes, and the expenses, and work out what an appropriate amount should be.  Note - that maintenance is always variable.  For example, you might agree on requirements based on your child at age 2 but they get more expensive as they grow older.  It's important to note this when you are negotiating, because if you are fighting over a small amount - it might not be worth paying disproportionately high legal costs in litigating. If parties cannot agree on the principles of how to calculate the maintenance, you may need to move it to the court's adjudication.
    • Nominal Maintenance - This usually means $1 that provides an opening for the spouse to apply for a variation of maintenance upwards in the future.  This could be the case if the breadwinner typically provides support but currently does not have a job.  This will allow the other spouse to vary it upwards on what sum it should be once he/she gets a job once that spouse regains employment.

    3. What if we feel the maintenance a parent is suggesting is too low?

    • If mediation is not working, there are steps during the court proceedings
      which include an FDR Hearing. You must have documentary support for your historical expense as justification, so it's important to get all this in order if you feel this is an issue.

    4. If you do now have access to credit card statements and financial information, how do you address it?

    • During the divorce process, if you are not agreeing together, you must file an exchange of financial information (FORM E).  If financial disclosure is not in full, you can challenge via a questionnaire.  The court can order the answering of questions.  If you still can't get answers, you can get specific discovery orders from the court.
    • If the person is living in a country other than Hong Kong, you can still request to order and you might have to hire a lawyer in that jurisdiction if it becomes an issue.

    5. What Are the Rights Of Unmarried Fathers In Hong Kong?

    • Many people do not understand that in Hong Kong, unmarried fathers do not have parental rights in Hong Kong.  If the mother decides to relocate with the kids, the father can try for a return order in the local jurisdiction, but he cannot
      invoke the Hague Convention. Unmarried Fathers should apply for a Section 3 Declaration to obtain rights similar to married couples.

    6. What is A Mirror Order?

    • Registering a foreign order in a different jurisdiction.  This is how you can protect yourself if moving to a new country after the divorce is made in Hong Kong, in case you need to enforce the order.

    6. Do You Need To Be Physically Present To Get A Divorce?

    • Either one of you must meet one of 3 requirements to get a divorce in Hong Kong.  1. Habitual Resident In Hong Kong - prove that you have lived here for a minimum of 3 years. 2. Substantial Connection With Hong Kong - Businesses, children are studying, property, etc. 3. Domiciled In Hong Kong - Permanent Resident and Intention To Stay In Hong Kong  permanently.
    • If you are not physically in Hong Kong, the divorce process can still run but you will need to file through a Hong Kong lawyer.

    7. What can we do if there are unforeseeable changes in financial circumstances?

    • Decreases - It's best to try and work it out together and it's encouraged to be sympathetic, especially in cases where there is a job loss.
    • Increases - Again, it is advised to work it out between yourselves and this is typically involving an increase in kids' fees (schooling, etc).
    • If you can not agree?  If you apply for this, the court will require you to show financial disclosure.  This is the FORM E and it's a lot of work and costly.  The sums should be significant enough to take it to court.

    8. Who pays for legal costs?

    • The more issues of dispute, the higher the legal costs.  The range can be thousands to millions of dollars.  Usually, for children matters, there will not be a cost order regarding legal parent unless one parent is deliberately and
      persistently trying to make things difficult.  The court may order costs in this situation.  For financial issues, if you settle in the FDR as you reached an agreement.  But, if you go to trial and the judge makes a decision, there may be a winning/losing party and court orders may be made for these costs.  One way of protecting costs is you can issue a proposal to other party (a fair proposal).
  • Divorce In Hong Kong - Kids Wellfare

    DIVORCE IN HONG KONG: Supporting Our Children's Wellfare And Wellness During Divorce

    1. How can we help children deal with the emotional upheaval of divorce and make sure that they know that they are not at fault (common thoughts among kids during a divorce)?

    • The first step, it's advised to seek advice from a child psychologist, counselor, or expert to learn the way to best announce to the children the separation.  They need reassurance jointly of your love to them and why you are separating.
    • It's important to also do this jointly and with a unified script. Children can think they are the cause of the conflict.

    2. How can we best protect our children, emotionally, from any arguments that can arise during the separation?

    • Avoid bad-mouthing the other parent.  This is very important as children will feel torn in a loyalty conflict.
    • Kids nowadays are adaptable and can deal with their parents' separation, but what they struggle with is their parents' conflict.  Keep the conflict out of their eyes and ears and focus on what is best for your kids.

    3. What if there is an access order and one parent refuses to facilitate?

    • You can try to take them to court but realistically there are no major penalties and it is tricky in Hong Kong.  This is an area the Hong Kong court needs to address as there are no strong consequences if these orders are not penalized. You can record the details and scare the parent that if they do not cooperate, you will seek a variation of the care and control order.

Additional Info:​

If you'd like to know more about various family issues related to marriage, divorce, and relevant children and financial arrangements, please follow Jocelyn on Facebook here!
CONTACT INFO
Jocelyn is also on LinkedIn, Instagram, and YouTube
For any case inquiries, you are most welcome to reach Jocelyn by email at jocelyn.tsao@withersworldwide.com
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