Exclusive Q&A on Divorce Law with Rita Ku


Posted: 17th May 2016 07:59

Can You Talk Us Through The Process For Divorce In Your Jurisdiction?

In Hong Kong a couple cannot divorce if they have been married for less than one year. After that either party can present a petition to the court and serve it on the other party, or there can be a joint application where both parties agree to divorce. The grounds for such a joint application must be that both agree that they have been separated for a year and that both consent to a divorce.

If the divorce goes ahead with a petition by one party (the 'Petitioner') he or she must prove one of the five facts of divorce to establish that the marriage has broken down irretrievably. These five facts are: (i) adultery, (ii) unreasonable behaviour, (iii) separation for one year by consent, (iv) separation for two years without consent and (v) desertion.

The other party (the 'Respondent') is served with the petition and has to reply to the court as to whether or not he is going to defend it within eight days.

Once the court accepts that the marriage has broken down, the Petitioner can apply for a decree nisi which is the first stage of the divorce process. At the same time the parties will be trying to sort out the problems which may arise in respect of their children and finances.

If there are issues over the children, the court will fix a date for the Children's Appointment to make any orders which may be necessary, such as social welfare reports or other evidence. Similarly, with the finances the court will fix a first appointment to deal with financial issues. Both of these hearings are designed to narrow the issues and prepare for the next stage in both, the Children's Dispute Resolution hearing and the Financial Dispute Resolution hearing. If there is no settlement at these hearings, the matter will proceed to full trial with witnesses on both sides. Normally matters concerning the children will be dealt with first.
Once the children and finances have been resolved, the Petitioner will normally apply for decree absolute, which is the final stage of the divorce process.

Can You Outline And Discuss The Main Legal Complications Surrounding International Families?

International families face a number of additional problems. One of the main questions which arise is where to petition for divorce. An international family may have a choice between a number of different jurisdictions and each one will have different laws in respect of divorce and this can have a significant effect on the outcome. 'Forum shopping' cases are common in Hong Kong. Advice from the other jurisdictions is advisable.
Also, assets located in different countries may prove problematic, although on the face of it all assets of a party living in Hong Kong no matter where they are situated will be assessed for division, in reality it may prove to be harder to assess the value and to enforce an order, depending on the jurisdiction in which the assets are held. International injunctions can be applied for, as well as mirror orders but generally it is more expensive and complicated to proceed when the assets are held overseas.

In addition there may be problems with where the children should live, and there are many cases in Hong Kong for the relocation of children in international families. Hong Kong is a signatory to the Hague Convention for the return of abducted children but Mainland China is not.

Have There Been Any Recent Regulatory Changes Or Interesting Developments?

A hot topic at the moment is the long awaited reform of the law in respect of children. There is currently a consultation paper on the proposed Children's Proceedings Bill which may do away with the old terminology of custody and access with its connotations of parental rights and ownership over children to be replaced with the more modern concept of parental responsibility where both parents are recognised as having an ongoing responsibility to their children. It is hoped that this will reduce the number of children's applications and the feeling that one party has' lost' and the other has 'won' in respect of their children. It will also tidy up some of the anomalies currently in the legislation in respect of children (some of which are fundamental such as the age of majority) and clarify the approach the court should take in respect of children's disputes (such as including a statutory checklist of factors to consider and taking into account the views of the child).

Also in the pipeline are proposed fundamental changes to family law procedure which will bring into force a set of procedural rules similar to that which exists in England. This will consolidate procedure from matrimonial legislation as well as civil procedure normally found in the Hong Kong Civil Procedure rules (the White Book). As the reforms are so extensive, it is unlikely that these rules will come into force soon.

Are There Any Noteworthy Case Studies Or Recent Examples Of New Case Law Precedent?

There were many significant cases in 2014. These included the landmark case of SPH v SA in which the Court of Final Appeal confirmed that the law in England as set out in the case of Radmacher v Granatino, was good law in Hong Kong. Essentially this meant that prenuptial agreements would be likely to be enforced in Hong Kong.
In addition in 2014 there was the landmark case of KLK v PLTO (The 'Poon' case) in which the Court of Final Appeal held that all the assets of a trust would be vulnerable on divorce if it could be proved that the settlor could have access to the funds in the trust at any time, those assets could be treated as a resource of the party.
In 2015 there was a landmark Court of Appeal case concerning the removal of children and which reviewed the law on habitual residence under the Hague Convention : LCYP v JEK. The case dealt with the importance of the children's wishes and removed the previous test in respect of the parent's agreement and intention.
Withers were involved in all three landmark decisions.

Has The Recent Rise In Cohabitation Altered The Divorce Law Landscape?

Cohabitation cases have their own complications but as yet these cases have not had an impact on the legislature. Simply put, the laws which are in force to protect married couples and their children do not exist for co-habittees. For example, a spouse can claim monthly maintenance, a lump sum settlement and transfer of property. A co-habittee will have to depend on the civil laws in respect of ownership and contribution. Therefore, for example a 'common law wife' who may have been living with her partner for a number of years, will not have any entitlement to financial security unless she can prove she has made her own financial contribution. She will be able to claim maintenance for her children and as part of that a carer's allowance which will take into account her needs but the courts cannot treat her in the same way as a divorcing spouse. In addition, the rules are less favourable in respect of the children of unmarried parents.

There are no civil partnership laws in Hong Kong.

Following The Recent ‘Silver Splitters’ Boom, Can You Outline Any Unique Challenges This Creates For Divorce Lawyers?

Not sure if there has been such a silver splitters boom in Hong Kong as the UK but when people divorce later in life, there are different issues at stake. It's less about the children and earning capacity and more about lump sum division to make sure both parties have adequate savings to go securely on into retirement and old age. Pensions are often in issue. In England there are specific rules relating to pension splitting but in Hong Kong the situation is more straightforward as most people pay into a MPF which is easily quantifiable. Long marriages will normally result in a 50/50 split of the assets and contributions by the breadwinner and the homemaker are deemed to be of equal value.

Is Gender Inequality And Discrimination Still A Pervasive Issue In Modern Day Divorce Proceedings?

Not particularly in respect of spouses as the legislature and case law protects the weaker party quite well inHong Kong (some would say too well). But see the answer in respect of cohabitees. There is clearly a discrimination against these parties and their children. Also note the comments regarding the lack of civil partnership legislation. We are well off a consideration of same-sex marriage. There was an interesting case which went to the Court of Final Appeal in 2013 W v Registrar of Marriages in which the Court of Appeal had construed the relevant passages from the Marriage Ordinance as not permitting the marriage of a transgender woman to marry her male partner on the basis that the parties were not respectively male and female. The Court of Final Appeal queried whether the Marriage Ordinance could be construed to be incompatible with the right to marry under the Basic Law and concluded that it was. Legco was then given time to discuss amendments to the law, which to our knowledge has yet to be passed – which rather suggests the affirmative to this question in respect of the rights of transgender and homosexuals in HK.

How Can You Help A Client Protect Their Finances During Divorce Or Dissolution?

If a party suspects that the other spouse has tried, or is trying to dispose of assets during divorce, he or she can make an s17 MPPO application to set aside any dispositions made by the other party which are clearly aimed at defeating her claim and taking assets out of the marital pot for division. This can be made locally or internationally.

The aggrieved spouse can also apply for a mareva injunction to freeze the assets of the party who has tried to deal with property which would be subject to a claim.

Both parties have an obligation to the court and to each other to make a full and frank disclosure of their assets. The courts have a wide discretion to order documents to be produced and inspected if there is any doubt about inadequate disclosure.

Anton Piller orders allow a party to enter the other party's premises for the purpose of searching for and retaining documents if there is a real concern that the documents will be removed or destroyed. This is preferable to the party trying to get these documents herself, which has been outlawed following the English case of Imerman v Tchenguiz in 2010.

What Measures Are Available To Clients To Protect Their Finances Before Or During Marriage?

Assets can be ring-fenced before marriage for reasons of estate planning and inheritances and if the parties come to an agreement which both find reasonable, the chances are this will now be upheld by the court. Prenuptial agreements which follow certain guidelines are now likely to be enforced in Hong Kong following SPH v SA. These guidelines include ensuring that there is no undue influence or duress when the agreement was made and that the agreement be made at least 28 days before the wedding, there should be adequate disclosure and independent legal advice. Before marriage, family assets which a party would like to protect from divorce could be placed into a trust, so long as the trust is set up carefully and it cannot be said that the assets in the trust remain a resource of the party setting up such a trust. Assets can also be protected if they are held by a company, but again it must be clear that it is the company, not the party, who owns the property.

During marriage the parties can make a post-nuptial agreement. These agreements have the same effect as a prenuptial agreement, and historically were more enforceable as the question of duress was less likely to arise.
How Often Do Divorce Cases Use Social Media And To What Extent Can It Undermine Divorce Proceedings?
Social media in Hong Kong, as everywhere else, is on the rise. Entries on Facebook, WeChat and other sites often contribute to evidence as to conduct and life style, both of which can be relevant to matrimonial cases. It is important to bear in mind that social media is designed to share information with the world – which is contrary to the confidential nature of divorce proceedings. We would suggest those who are involved in divorce proceedings should consider very carefully when they post to a social media site. This type of evidence might be used to undermine a party's credibility and even weaken their position.

Rita Ku
has experience in a wide spectrum of areas of family law, and represents husbands and wives in disputes concerning divorce, children and ancillary relief. She deals with complex international financial and multi-jurisdictional cases particularly in the PRC and her case of YJ v ML has attracted international legal attention as it concerns juridical arguments concerning the PRC and Hong Kong, leading to expeditious legislation in Hong Kong to answer the issues raised in her case.

Rita has particular expertise in cases involving issues on trusts in the family law context in the Cayman Islands and BVI. Her clients generally have substantial assets with complicated company structures often involving listed companies in different jurisdictions.

Rita can be contacted on +852 3711 1670 or by email at rita.ku@withersworldwide.com

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