Your Guide To Getting A Divorce In Hong Kong – Video & Tips To Help You Navigate Custody, Finance, And Prenuptial Agreements

CHILDREN CUSTODY DISPUTES: Understanding Custody, Care & Control, Access In Hong Kong Divorce

People need to understand the nuances of child custody in Hong Kong, as many only recognize the term "custody" without knowing the distinction between custody and care and control.

Custody refers to the ability to make major decisions for your children, including significant matters such as medical procedures, school choices, relocation to another country, and religious upbringing. This can involve either sole custody or joint custody. In most cases, courts tend to grant joint custody to both parents, as it's generally not ideal to deprive one parent of the ability to participate in these important decisions.

On the other hand, care, and control is often the focal point of disputes. This concept determines with whom the children will primarily live. The parent designated as the primary carer holds care and control, meaning the children reside with them as their main home base. The other parent, who does not have care and control, is granted access rights, which refer to visiting privileges. The specifics of access can vary widely, including the frequency and duration of visits, and may encompass both daytime and overnight access. Understanding these distinctions is crucial for navigating custody arrangements effectively.

The parent who does not have care and control is granted access, which refers to their visiting rights with the children. Access arrangements can vary significantly depending on the specific circumstances of each family. This can include the frequency and duration of visits, which may range from day access—where the parent spends time with the children during the day—to overnight access, allowing for longer visits. The goal of access is to maintain a meaningful relationship between the non-custodial parent and the children, ensuring that both parents remain actively involved in their lives, despite the differences in living arrangements. Understanding the terms and conditions of access is essential for fostering healthy co-parenting relationships.

CHILDREN CUSTODY DISPUTES: Common Custody Disputes In Hong Kong Divorce

Disputes Around Care & Control:

Care and control is often the most hotly contested issue in divorce cases. Understandably, parents want their children to live with them, as it can be heartbreaking to lose the day-to-day presence of their children—no longer waking up to see them or saying goodnight at bedtime. This emotional aspect drives many disputes.

Alongside care and control, there's the determination of who will be the primary carer. In today's world, it's increasingly common for both parents to work, which can complicate this determination. Unlike traditional households where one parent typically stays home, shared care and control arrangements may arise when no distinct primary carer is evident.

The debate usually centers around whether one parent should have sole care and control, with the other granted only access, or if care and control should be shared, potentially splitting time equally between parents. Shared arrangements can involve various schedules, such as a week-on, week-off system, or a pattern like the 2-2-5-5 schedule, where children spend Monday and Tuesday with one parent, Wednesday and Thursday with the other, and alternate weekends.

These structured arrangements can provide stability for children, as they know what to expect each week. Courts and social investigation officers often recommend shared care and control when both parents are equally involved in their children's lives and capable of co-parenting. However, this requires effective communication and cooperation, particularly when transitioning items like school supplies and extracurricular equipment between homes. If the parents are in significant conflict and unable to communicate effectively, a shared care arrangement may not be ideal.

Disputes Involving Young Children:

One common area of dispute involves young couples who are divorcing and have young children. A significant issue in these cases is whether a parent with care should allow overnight access to the other parent. For instance, if a child is just two years old and the father has not been actively involved in their care, the mother may have concerns about the father's ability to handle the child alone, especially overnight. This can lead to debates about when and how overnight access should be implemented.

In such scenarios, it’s often suggested that overnight access be introduced gradually. For example, the father might start by spending a few hours or days with the child, then progress to full days, and eventually, if all goes well, transition to overnight stays. As the child grows older and becomes more independent, these arrangements can become easier to manage.

These are two of the main points of contention. Some clients seek sole custody to avoid having to consult the other parent for decision-making. However, obtaining sole custody is challenging unless one parent can demonstrate a consistent pattern of the other parent vetoing decisions without valid reasons—such as refusing to agree to a school change or denying holiday plans out of spite. Establishing a clear pattern of disagreement is crucial. Alternatively, sole custody may be possible if the other parent has been consistently absent or has shown irresponsibility, indicating they cannot be trusted to make sound decisions for the children.

Disputes Around Relocation:

Relocation issues often arise during custody arrangements, especially in cases involving divorcing couples in Hong Kong. For instance, an expat mother might decide to move back to her home country after a divorce, raising questions about her children’s living situation. In such cases, the relocating parent must seek the other parent's consent, as relocation falls under the umbrella of custody arrangements. If the other parent does not agree, the relocating parent must file a relocation application, requesting court permission to move with the children.

When considering such applications, the court primarily evaluates whether the move is in the best interest of the children. The relocating parent must demonstrate that the new location will provide a smooth transition for the children, including suitable schooling and living conditions. They may need to present evidence, such as photographs of the new home and neighborhood. A support network is also crucial; if the relocating parent moves to an area without family or friends, the court may question who will assist in emergencies.

Additionally, the relocating parent should propose an access plan for the left-behind parent, ensuring they maintain a meaningful relationship with the children. This could include regular video calls, visits during school holidays, or arrangements for the children to spend time in Hong Kong. The court will look favorably upon parents who have been cooperative in facilitating access for the other parent, as it suggests that the relocation is not intended to sever the relationship with the children. Conversely, if the relocating parent has a history of obstructing access, the court may scrutinize their motives more closely.

Regarding the children's desires, their feelings and wishes are also considered during the process. Social welfare officers will conduct interviews to gauge the children's opinions about the move. However, the weight given to their views can vary by age. Younger children, particularly those in primary school, may not fully understand what is in their best interest and could be influenced by a parent. In contrast, older children, especially those in secondary school, are generally seen as more capable of expressing their wishes, and their opinions will be given more weight—though they are not the sole determining factor. The court will still assess the overall circumstances, including the quality of schooling, living arrangements, and the ability of both parents to facilitate access.

Child Abduction Concerns:

During the pandemic, it was unfortunately quite common for custody disputes to arise. This often isn't due to one parent abducting the children in the traditional sense. Initially, many families left Hong Kong with the other parent's consent, moving to countries like Australia, the US, or Germany to escape the pandemic situation.

However, difficulties arise when one parent decides to stay permanently without the other's consent. What began as a temporary relocation can turn into a situation perceived as child abduction. If the destination country is a signatory to the Hague Convention on International Child Abduction, returning the children to Hong Kong can be relatively straightforward. The treaty facilitates cooperation between countries to ensure that children are returned to their habitual residence. The central authority in Hong Kong, namely the Department of Justice, would collaborate with the relevant authority in the other country, such as the US, to facilitate this process—ideally within six weeks.

Complications arise when children are taken to countries that are not part of the Hague Convention, such as Taiwan, the PRC, or Japan. In these cases, it becomes much more challenging. While you can obtain a local Hong Kong court order for the child's return, enforcing that order in a non-signatory country can be problematic. For example, if a child is taken to Taiwan and a return order is granted in Hong Kong, Taiwanese courts may not recognize that order. They often wish to reassess the situation themselves, a process that can take years—sometimes up to three years—during which the child may become settled in their new environment, complicating any potential return to Hong Kong.

CHILDREN CUSTODY DISPUTES: How Does Hong Kong Court Resolve Custody Disputes In Divorce?

In terms of the typical process for resolving custody disputes, the court follows a structured procedure. Whenever there's an issue related to children, the court will order a social investigation report. A social welfare officer will be assigned to the case and will interview the parents, the children (if they are old enough), and possibly other caregivers, such as domestic helpers or grandparents. This helps create a comprehensive picture of the historical arrangements and the relationships between the parents and the children.

The social welfare officer will also conduct home visits to observe interactions and bonding between the parent and the children. After completing the assessment, they will make recommendations in the social investigation report. This step is crucial, as social welfare officers serve as the "eyes and ears" of the court; judges do not conduct on-the-ground interviews themselves.

In more complicated cases, the court may also call for child psychologist reports to address issues like parental manipulation or emotional distress in the children. Parental assessments by psychiatrists may also be requested if necessary.

Once the expert evidence is gathered, the court hopes the parents will adopt the recommendations. If they do not, the next step is a Children’s Dispute Resolution (CDR) hearing. During this hearing, the judge acts as a mediator, encouraging the parties to settle and providing guidance based on their insights. If the CDR hearing fails and the parents cannot reach a compromise, the case will proceed to a trial hearing. This is the more formal process where parties give oral evidence and undergo cross-examination. However, trials are becoming less common due to the animosity that can build between parents, which is not ideal for co-parenting, as well as the high legal costs involved.

In parallel to this court process, we always advise parents to consider mediation—a private, out-of-court option where they can hire an independent mediator, often someone with legal qualifications. Mediation is particularly beneficial in child disputes, as parents generally understand their children's needs and daily arrangements better than anyone else.

How common are these disputes after a divorce is finalized - do many people go back to change orders around custody?

Disputes after a divorce is finalized are not very common, as the hope is that both parties will adhere to the final order. However, issues can arise, particularly if one parent is obstructive regarding access. In such cases, the other parent may need to return to court to alter the arrangements. In extreme situations where access is completely obstructed, the left-behind parent might seek to reverse the care and control arrangement to maintain a relationship with their children.

For example, I’m currently handling a case where a shared care and control order was established. Over the past three years, one parent has focused heavily on their career, resulting in the children spending most of their time with my client. As a result, we are taking out a variation application to change the arrangement from shared care and control to sole care and control, reflecting the current de facto situation. So, while changes can occur, they typically happen under specific circumstances.

FINANCIAL DISPUTES: Determining Asset And Income In A Hong Kong Divorce

This is about financial disputes. Couples should consider two main categories when thinking about financial settlements in a divorce: assets and income.

• Assets refer to everything the couple owns, such as bank account balances, investment accounts, properties, and even pensions.
• The other major category is income, which relates to spousal maintenance.

For every case, both parties must consider how they will divide their assets and whether there will be spousal maintenance. If so, they need to discuss the duration and amount of that maintenance.

It can be overwhelming for many people, especially in Hong Kong, where one partner might be financially savvy while the other is not. If the financially less savvy partner has a lawyer, the process can become much more manageable. Lawyers guide clients through each step, starting with financial disclosure. Both parties, regardless of their financial expertise, must provide full financial disclosure.

This involves outlining all expenditures and some individuals may not have a clear understanding of their monthly needs or may not keep records. In such cases, lawyers can help, and sometimes clients even engage accountants to assist in detailing their monthly expenses. They might review historical bank and credit card statements to estimate their spending accurately.

The first part can be tricky for some, but once financial disclosures are exchanged, the next step is financial discovery.

FINANCIAL DISPUTES: How Does Hong Kong Court Determine Alimony And Child Support?

The terms can vary by country, so below is what they mean and how the Hong Kong court approaches this.

• Spousal Maintenance (often referred to as alimony in the US) refers to the monthly financial support that one spouse pays to the other after divorce.
• Child Maintenance is different and pertains specifically to the financial support for children.

In most cases, individuals may have a general idea of their family's monthly expenditures, but it's important to distinguish between what each spouse spends and what the children need.

This distinction is crucial for several reasons:

• Children's Maintenance:
  • The duration is generally until the child turns 18 years old or completes full-time education, typically understood as at least an undergraduate degree.
  • Hong Kong law is considered more generous than many other jurisdictions in this regard.
• Spousal Maintenance:
  • The duration can vary significantly and does not have a fixed formula. It may be based on the length of the marriage or adjusted for various circumstances.
  • In cases of extremely long marriages, spousal maintenance may even be awarded for a lifetime, continuing until death or remarriage.

How Do You Determine Maintenance?

To calculate the amounts for both spousal and child maintenance, the following steps are typically taken:

1. Historical Expenditure:
   • Analyze past spending to create a detailed picture of expenses, including:
     • Food
     • Travel
     • Clothing
     • Personal grooming for children
     • Education and extracurricular activities
2. Income Considerations:
   • If both parents earn an income, both will be relevant in the calculation.
   • If there is only one primary breadwinner, it must be assessed whether that income can support two households, as the costs will increase significantly post-divorce.
3. Prioritization:
   • Children's Maintenance takes precedence to ensure their standard of living is protected.
   • After fulfilling children’s maintenance obligations, any remaining income can be allocated to spousal maintenance.

How Do You Address Income Disputes?

• In scenarios where one partner earns significantly more than the other, the assumption of a 50-50 split does not apply to maintenance.
• Maintenance is not calculated as a percentage of income but rather based on actual historical expenditures.

How Do You Divide Assets?

• The starting point for asset division is typically 50-50 in Hong Kong, based on the assumption that both parties contribute equally, regardless of the traditional roles during the marriage.
• However, this can vary based on several factors:

1. Scope of Assets: Determine the total value of assets, including bank balances, properties, etc.
2. Assessing Needs: Evaluate each party's monthly needs, age, and ability to earn.
3. Exclusions: Certain assets may be excluded from the division, such as Premarital assets, Inherited or gifted assets* To successfully argue for the exclusion of premarital or inherited assets, the following conditions must be met...If any of these conditions are not met, the asset may be considered marital and thus subject to division. The same principles apply to businesses started before marriage. If the business developed during the marriage or the couple benefited from it, the asset may not be excluded from the division.
   1. The asset was never commingled with marital assets.
   2. The asset was not used during the marriage for family expenses.
   3. The family did not benefit from the asset.

How About Short Marriages? 1-5 Years

For short marriages, typically lasting one to five years, the bulk of the assets are often premarital. Additionally, there is usually less contribution from both parties to generate these assets. Therefore, in such cases, it may not result in a 50-50 split of assets.

Another important element is spousal maintenance. In shorter marriages, couples are generally younger and less reliant on one another. As a result:

• There may be no spousal maintenance if both parties are financially independent.
• If spousal maintenance is awarded, it is often for a limited period, typically two to three years, allowing the recipient to reestablish themselves, rather than for the longer durations seen in mid-length or long marriages.

FINANCIAL DISPUTES: How Does Hong Kong Court Resolve Financial Disputes In Divorce?

Regarding financial disputes during or after the divorce process, the procedure recommended is similar to that for children's disputes. The first step is to provide financial disclosure.

OK, so let’s discuss the procedure for handling a financial dispute during or after the divorce process. This is similar to the procedure for children disputes:

• Financial Disclosure: The first step is to provide financial disclosure.
• Challenging Disclosure: You can then challenge the other person's disclosure, which initiates the financial discovery process. This step often takes the longest.
• Financial Dispute Resolution (FDR) Hearing: Once both parties are satisfied with the financial disclosures, the case moves to an FDR hearing. Here, the judge acts almost like a mediator, helping the parties to settle by suggesting reasonable outcomes.
• Trial Hearing: If no settlement is reached during the FDR hearing, a trial hearing is scheduled for a full court hearing.

Now, what happens if everything is signed off after the divorce, but one party decides not to pay?

• Enforcement: This falls under enforcement procedures.
  • If a lump sum is owed, the recipient can take enforcement measures against the non-paying party, who must then show cause for non-payment unless they are declared bankrupt.
  • For maintenance payments that are not made, the recipient may file a variation application if the amount is no longer affordable. However, if it’s not a matter of affordability, a judgment summons can be issued to compel the other party to court to provide financial disclosure and explain their non-payment.
  • If there's a pattern of late or missed payments, the court can issue a secured periodical payment order. This links maintenance payments to the person’s income source, ensuring that maintenance is paid before the employee receives the rest of their income.
  • Secured Periodical Payments: This order is not very common, as it requires evidence of non-compliance. However, it is fairly common for recipients to take enforcement actions to ensure payment.

How do you handle third-party entrants and gifts in a proceeding?

One common issue in divorce cases today—especially in Hong Kong—involves third-party entrants, such as parents being drawn into the proceedings.

• Third-Party Entrants: Many first-generation wealthy families mix with second-generation couples. It's common for parents to fund property purchases for their divorcing children. The key question during divorce is whether that property was a gift (and thus a matrimonial asset) or if it remains owned by the parents, who are the beneficial owners.

If the parents and the divorcing spouse argue that the property is still owned by the parents, they must apply to the court, providing evidence to support their claims. This includes:

• Evidence of parental decision-making regarding the property (e.g., renovations or rental agreements).
• Documentation shows that rental income has historically been received by the parents.

In such cases, the parents may need to participate as interveners, providing oral evidence in court. Ultimately, it’s up to the judge to determine whether the property is owned by the titleholder (the spouse) or the parents who funded it.

PRENUMPTIAL AGREEMENTS IN HONG KONG: Understanding Prenuptial Agreements: Benefits and Best Practices

Now, let's move on to our finalarea: prenuptial agreements (pre-nups) agreements.

Benefits of Pre-Nups and Post-Nups:

• Pre-nups have become increasingly popular in Hong Kong over the past five to seven years, unlike in the UK, where they've been common for much longer.
• Contrary to the perception that pre-nups are only for the wealthy, more average-income families are recognizing their value.
• People understand that divorce can significantly impact asset division, leading to the desire for clarity and certainty in case of separation.
• Pre-nups minimize disputes by clearly outlining asset division and potential spousal maintenance.

Financial Transparency:

• Pre-nups encourage discussions about finances, which many couples avoid. This openness can create a solid foundation for a successful marriage.

How To Get Started With A Pre-Nup In Hong Kong:

• Begin by discussing the idea of a pre-nup with your fiancé to gauge their openness.
• Consider your objectives: What do you want to achieve with the pre-nup?
• Consult a lawyer to draft the terms based on mutual agreements.
• Ensure financial disclosure is prepared for both parties.
• Timing is crucial: pre-nups should be signed at least 28 days before the wedding, allowing for adequate processing time.

Ensuring Validity in Court:

• There is a common misconception that pre-nups are invalid in Hong Kong. This is incorrect; while courts do not automatically accept them, they will uphold valid agreements meeting certain requirements:
  • Timing: Must be signed at least 28 days before the wedding.
  • Financial Disclosure: Both parties must fully disclose their financial situations.
  • Independent Legal Advice: Each party should have its own legal counsel to avoid conflicts of interest.
  • Fair Terms: The agreement should not leave one party in a difficult financial position.

Location of Signing A Pre-Nup:

• The location where the pre-nup is signed should reflect the couple's intended residency. If planning to live in Hong Kong, sign there; if relocating to another country soon, sign in that jurisdiction. For couples planning to move, it’s wise to consult lawyers in both locations for compatibility.

How Prenups Help During Divorce:

• Common objectives include excluding certain assets, such as:
  • Premarital assets
  • Inheritances or gifts from family
• Clear terms in a prenup make it easier to navigate asset division during a divorce.

Types of Prenuptial Agreements:

• Clear-cut agreements: Define what belongs to whom, ensuring no disputes during divorce.
• Hollywood-style prenups: Designed for couples with significant financial disparities, may include provisions for lump sums or property allocations to ensure fair support.

Additional Advice:

• Infidelity clauses are generally unenforceable in prenups. Courts do not enforce moral judgments regarding personal conduct.

UNIQUE CHALLENGES FOR EXPATS AND INTERNATIONAL FAMILIES: International Families During A Divorce

International families, particularly expats, face specific challenges during divorce proceedings in Hong Kong.

Relocation Applications:
For expat families, one common issue is the need for relocation applications. Often, one parent may wish to return to their home country. As previously discussed, when applying for relocation, it’s crucial to demonstrate to the court that the move is in the best interest of the children. Factors to consider include:

• Schooling: Availability of quality education in the new location.
• Accommodation: Suitability and stability of living arrangements.
• Support Network: Presence of family and friends to provide emotional and practical support.

Moreover, the relocating parent should have a history of being a cooperative parent to avoid allegations that the move is intended to undermine the other parent's relationship with the children.

Rights of Unmarried Fathers:
Another significant challenge arises for unmarried couples. Many may not realize that fathers of unmarried children have no automatic parental rights in Hong Kong. To obtain these rights, the father must apply to the court for a declaration. Without this declaration, if the mother decides to relocate with the children, the father has no legal recourse.

For instance, if the mother moves back to her home country, the father’s only option is to seek a court declaration to recognize his parental rights, followed by a return order. This process can take several months, during which the children may have already left the country. Therefore, unmarried fathers must secure this declaration promptly to ensure they have equal standing with the mother.

Is the legal process different for locals versus international families?

• Jurisdictional Requirements: Establishing jurisdiction is a critical first step before proceeding with the legal process of divorce.
  While the legal process for divorce does not differ between ex-pats and local residents, ex-pats must establish jurisdiction. The court will typically assume that individuals with Western names are not residents. To divorce in Hong Kong, ex-pats must meet at least one of the following criteria:
• Residency: Living in Hong Kong for at least three years.
• Substantial Connection: Demonstrating significant ties to Hong Kong, such as children studying here, income received in Hong Kong, or ownership of property or a business in the region.
• Permanent Residency: If the couple has lived in Hong Kong for over seven years and is considered a permanent resident, they can claim to be domiciled in Hong Kong, indicating their intention to make it their permanent home.