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<s>[INST] Are surrogacy arrangements legal in your jurisdiction? [/INST] Commercial surrogacy arrangements are illegal in Hong Kong under the HRTO. Anyone who is found guilty of the same will be liable to a fine and to imprisonment for six months on first conviction. </s>

<s>[INST] How does the court treat unreasonable conduct during the marriage in relation to financial matters (eg, reckless spending, gambling, dissipation of assets) when determining on capital division in divorce? [/INST] While the court generally rejects ‘minute retrospective investigation' of the parties' misconduct, it will still consider the parties' misconduct; but such misconduct must be obvious and gross. A party may ask the court to ‘add back' the value dissipated arising from the wanton dissipation/reckless dissipation of assets by the other party for the purpose of capital division, as in MD v PIB [2011] HKFLR 351. Material financial non-disclosure and/or a failure to give full and frank financial disclosure may be regarded as misconduct, leading to adverse inferences being drawn by the court against the party at fault in ancillary relief proceedings. </s>

<s>[INST] How would you describe the current family law landscape and prevailing trends in your jurisdiction? Are any new developments anticipated in the next 12 months, including any proposed legislative reforms? [/INST] Hong Kong is committed to resolving family disputes in a constructive and efficient way, and continually brings in new laws and practice directions with the aim of improving the system and streamlining procedures and mechanisms. For example, in 2022, the Mainland Judgments in Matrimonial and Family Cases (Reciprocal Recognition and Enforcement) Ordinance was enacted, giving effect to the Arrangement on Reciprocal Recognition and Enforcement of Civil Judgments in Matrimonial and Family Cases by the Courts of the Mainland and of the Hong Kong Special Administrative Region. This statute facilitates the recognition and enforcement of judgments between Hong Kong and mainland China, reducing the risk that the same issues may need to be litigated both in Hong Kong and in mainland China. Another important statute that may be introduced before the end of 2023 is the new Family Procedure Ordinance, which would consolidate and unify the existing procedural rules and laws scattered across different ordinances and thus become the single primary statute governing court procedures on family matters. The new ordinance aims to address the current deficiencies and introduce procedural reforms that will facilitate the efficient disposal of proceedings. There are also calls to reintroduce the Children Proceedings (Parental Responsibility) Bill, aimed at reforming and consolidating the law in relation to parental rights and responsibilities in proceedings involving children. This was previously shelved in 2018. </s>

<s>[INST] What laws and regulations govern adoption in your jurisdiction? What specific considerations and concerns should be borne in mind in this regard? [/INST] The law in relation to adoption in Hong Kong is governed by the Adoption Ordinance Cap 290. Adoption involves the trfer of custody and guardihip from the parent(s) or guardian(s) of the child concerned to the adoptive parents. All parental rights, duties, obligations and liabilities of parents are then vested in the adopters. Pursuant to Section 4 of the ordinance, adoption applications can be made by sole applicants or by married couples as joint applicants. A sole applicant is eligible if he or she is the mother or father of the child; has reached the age of 21 and is a relative of the child; is married to a parent of the infant; or has reached the age of 25. Unless the court is satisfied that there are special circumstances, generally it will not make an adoption order for a female infant in favour of a sole applicant who is a male. Do the regimes discussed in this have eual application to same-sex couples? If not, please highlight the differences in treatment. No. Same-sex couples cannot apply to the court to adopt a child together as joint applicants, as same-sex marriage is not recognised in Hong Kong. In reality, what usually happens is that one spouse applies to adopt the child as a sole applicant; only that spouse has custody and guardihip of the child legally, unless a subseuent order on guardihip or similar is granted to the other parent by the court. </s>

<s>[INST] How Does Hong Kong Courts Deal With Custody Issues? [/INST] In Hong Kong, children issues are broken down into three areas (1) custody (2) care and control and (3) access. Custody In Hong Kong, you will either be granted “sole” custody over the children or share “joint” custody with the other parent. Generally speaking however, whether you receive sole or joint custody, each parent will always have a right to be consulted over major issues with respect to the children such as education, religion and health. Even if you are granted “sole” custody, the other parent can veto your decision by bringing this to the Family Court. Care and Control This refers to the parent who will be responsible for the day-to-day decisions related to the children and whom the children will be living with on a day-to-day basis. Access In cases where one parent has care and control, there will be an order for reasonable access. When making orders relating to the children, the Family Court in Hong Kong will look to the best interests of the children. The Family Court in Hong Kong will determine the children’s best interests by weighing the following factors Preservation of status uo Age, sex and background of the parents and children Personality, capability and character of the parents Financial resources of the parents Physical and mental health of the parents and the children Accommodation for the children The children’s wishes/views Benefit of keeping the siblings together with one parent The religion and culture of the family Professional reports Suffering/risk of suffering of the children including any history of family violence Any other fact or circumstances that the Family Court thinks are relevant </s>

<s>[INST] I am a resident of Hong Kong but I was married in another jurisdiction. Can I still get a divorce in Hong Kong? [/INST] So long as you e validly married in another jurisdiction and can provide a Marriage certificate, then you can apply for divorce in Hong Kong. To file a Petition for Divorce in Hong Kong, you will need to show to the Family Court one of the following a. Domicile Either you or your spouse was domiciled in Hong Kong on the date of the Petition b. Habitually Resident Either you or your spouse was habitually resident in Hong Kong for a period of 3 years immediately preceding the date of the Petition c. Substantial Connection Either you or your spouse had a substantial connection with Hong Kong on the date of the Petition These facts will need to be addressed in the Divorce for Petition to show the Family Court that the Family Court has jurisdiction over the matter. Please note that you will be reuired to provide your Marriage Certificate or a certified true copy when filing a Divorce for Petition. It is important to note that once the Divorce for Petition is filed with the Marriage Certificate, you will not receive the Marriage Certificate back. </s>

<s>[INST] What is the best way to negotiate child custody so both parties are happy? [/INST] Shared Care And Control - This typically me 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 eual 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. </s>

<s>[INST] Does Adultery Affect Divorce in Hong Kong? [/INST] In Hong Kong, divorce proceedings may proceed as long as the petitioner proves that their marriage has irretrievably broken down. The petitioner may choose to support this by either proceeding on a “fault” or “no-fault” basis. Fault The “fault” basis consists of the following 1. adultery; 2. the unreasonable behaviour of the respondent; or 3. the respondent’s desertion. In practice, if the petitioner decides to proceed on a fault basis, the most common option would be on the respondent’s unreasonable behaviour. This is because the grounds of desertion and adultery are difficult to prove. Particularly, in respect of adultery, it may be a costly (and difficult) exercise for the petitioner as it is a reuirement to show that voluntary sexual intercourse occurred between the respondent and the third party. Purely a belief that adultery has occurred will not be successful. The petitioner must also show that it is intolerable for them to reside with the respondent following the infidelity. This is a subjective test, but if the parties reside together for more than six months following the adultery, the petitioner cannot claim that they consider it intolerable to reside with the respondent. In contrast, the bar for unreasonable behaviour is not as high as many people would expect. Although more extreme allegations such as a party not wanting children or having too many sexual demands can be treated as unreasonable behaviour, allegations such as the respondent failing to demonstrate love or affection towards the petitioner, or the petitioner feeling as if their opinions are not respected, will suffice. This is generally the easier and most cost-efficient ground to pursue for a fault-based divorce. No-Fault The “no-fault” grounds consist of the following 1. the parties’ one year separation with consent; or 2. the parties’ two-year separation without consent. Despite the breakdown of the relationship, some parties prefer commencing divorce proceedings on a no-fault basis as they will not be reuired to blame the other party for the breakdown of the marriage. This will assist the parties in maintaining an amicable relationship and reduces the chance of conflict. Another option will be for parties to jointly apply for a divorce. Many jurisdictions have in fact abolished the concept of divorce proceeding on a “fault” basis. “No-fault” divorce is due to come into effect in England and Wales in April 2022. This me that parties to a marriage may apply for a divorce solely on the basis that their marriage has broken down. The respondent may also not contest the ground for divorce. Whether a party proceeds via a “fault” or “no-fault” basis will usually not affect the financial settlement to be received by the parties. It will, however, be advantageous for a party to proceed on a “fault” basis if they wish to immediately commence proceedings. With constant updates being published of Wang and Lee’s divorce, this will certainly be a development to watch. For individuals who reside in Hong Kong undergoing a similar situation, it is strongly advised that they speak with a family lawyer in the first instance to understand more about their options going forward. </s>

<s>[INST] How soon before I am divorced and can re-marry again? [/INST] You may re-marry after a Decree Absolute is granted. The timeline for the grant of a Decree Absolute varies and is dependent upon adjudication of financial and custody arrangements for the children are approved. For this reason, among others, there is incentive for divorcing couples to seek assistance through mediation rather than through the court. </s>

<s>[INST] Is there a formal partnership status for cohabitants (for example, civil partnerships, PACS)? [/INST] No, there is not. </s>

<s>[INST] I am getting married. Can you prepare a prenuptial agreement for me and my spouse? [/INST] Yes, we can prepare a prenuptial agreement. A prenuptial agreement is an agreement reached between you and your future spouse prior to marriage. A prenuptial agreement will outline the rights and obligations of both you and your future spouse in the unlikely event of divorce. Prenuptial agreements deal with financial issues, namely the division of property, maintenance for a spouse and other financial arrangements perhaps dealing with family businesses and trusts. Strictly speaking, prenuptial agreements are not binding in Hong Kong. However, they are becoming more and more common, especially among expatriate couples who have obtained prenuptial agreements in a foreign jurisdiction. Even though prenuptial agreements are not strictly binding upon the Hong Kong courts, the Family Court may take the terms of the prenuptial agreement into consideration when making rulings in a divorce. Generally speaking, a good prenuptial agreement will have been carefully read and understood by each party, each party will have provided full and frank financial disclosure of his/her financial positions, there was no duress or exploitation and each party will have received independent legal advice. </s>

<s>[INST] Are the commissioning parents recognised as legal parents in your jurisdiction and what do they need to do to establish a legal relationship with their children born through surrogacy arrangements? [/INST] Under the Parent and Child Ordinance (Cap 429) (PCO), the person who gives birth to a child – that is, the surrogate mother in a surrogacy arrangement – will be regarded as the parent of the child, unless a parental order or adoption order is granted to make the commissioning parents the legal parents. Therefore, the commissioning parents should apply for a parental order pursuant to Section 12 of the PCO. </s>

<s>[INST] What methods of dispute resolution are available to resolve financial settlement on divorce, e.g. court, mediation, arbitration? [/INST] Methods of dispute resolution include court litigation, mediation, private financial dispute resolution (“FDR”) and collaborative practice. With the aim of facilitating settlement, the Court also adopts the FDR scheme whereby an FDR hearing is fixed before the matter proceeds to trial. The Judge in the FDR acts as the facilitator and assists the parties in their discussion for settlement. The Judge will consider each party’s settlement proposal and submissions and indicate the likely outcome of the case should the matter proceed to trial. The Court cannot make a financial order to settle the matter, and a settlement can only be reached by way of Consent Summons filed by parties to the proceedings. Court-led mediation, known as mediator-assisted FDR or mediator-assisted children dispute resolution (“CDR”), is also possible, whereby the mediator participates in FDR and works alongside the Judge to facilitate a settlement. There is currently no system in place for family arbitration, but a similar me of alternative dispute resolution known as private family adjudication (“PFA”) is available. PFA is a consensual process that takes place outside the Court but within the court sanctioned process. Adjudicators are essentially family practitioners who have no less than 10 years’ experience in practising family law and can be appointed by the parties who agree to be bound by the decision of the adjudicator with no rights of appeal, save in exceptional circumstances. PFA is only available for financial disputes and not for divorce applications or issues concerning children disputes. Mediation is well established and often encouraged by the Court. When commencing divorce proceedings, the Petitioner is reuired to file a Mediation Certificate with the Court acknowledging his/her right to resolve the dispute by way of alternative dispute resolution, such as mediation. Parties can proceed with mediation with a private mediator or through the mediation office of the Family Court. </s>

<s>[INST] I want a divorce. What steps do I need to take to start the process? [/INST] There are three (3) matters to consider when dealing with divorce a. Dissolving the marriage (Divorce Main Suit) b. Children (custody, care and control, access) c. Ancillary Relief (Distribution of assets, financial matters relating to you and the children) If you would like to commence divorce proceedings, the first thing you will need to issue an application for Divorce or a Petition for Divorce. The Petition for Divorce will list the grounds upon which you are filing for Divorce (see more below for more detail). In the Divorce Petition, it will state that the marriage has broken down irretrievably and if necessary, particulars of why the marriage has broken down will be outlined in more detail along with what you are asking for including that the marriage be dissolved and other areas to be dealt with including property division and your proposal for the children. Once the Petition for Divorce is filed, the Petition will need to be served upon your spouse. The Family Court will then deal with the Divorce in three sections as listed above. If your Divorce is undefended, meaning there is no dispute as to the ground for Divorce, then you can apply for a Decree Nisi. After the grant of the Decree Nisi, the Family Court will later grant a Decree Absolute which dissolves the marriage. If the Divorce Petition is defended then you will need to apply to fix a date for trial on the issue of the main suit. </s>

<s>[INST] How are these orders enforced and by whom? [/INST] An order granted by the court pursuant to the DCRVO may be accompanied by an authorisation of arrest. If the respondent does not comply with the order, police officers can apply reasonable force, enter the premises and arrest the respondent without a warrant. </s>

<s>[INST] What are the grounds for divorce in Hong Kong? [/INST] The Court needs to be satisfied that the marriage has broken down irretrievably and you can rely on one of the following five facts to apply for a divorce Adultery Unreasonable behaviour One year separation with consent of your spouse Two years’ separation without consent of your spouse Desertion by your spouse for at least a continuous period of one year </s>

<s>[INST] Are foreign civil partnerships, same-sex marriages or similar recognised in your jurisdiction? What reuirements and restrictions apply in this regard? [/INST] Foreign civil partnerships and same-sex marriages are not recognised in Hong Kong. That being said, civil partners and same-sex spouses from overseas are eligible for dependent visas, if the applicant meets the standard immigration reuirements (T v Director of Immigration [2018] HKCFA 28). They can elect for joint tax assessment or personal assessment jointly with their same-sex spouse, and may claim tax allowance in respect of that spouse (Leung Chun Kwong v Secretary for the Civil Service (2019) 22 HKCFAR 127). </s>

<s>[INST] What are the jurisdictional reuirements for the domestic courts to handle matrimonial and family law matters? How do the parties satisfy the courts of such reuirements? [/INST] The Hong Kong courts have jurisdiction to deal with a divorce if either or both of the parties to the marriage are domiciled in Hong Kong at the date of the petition or application; have been habitually resident in Hong Kong throughout the three years immediately preceding the date of the petition or application; or have a substantial connection with Hong Kong at the date of the petition or application. The parties will need to produce evidence if reuested by the court to satisfy it of one of the above reuirements. </s>

<s>[INST] I Am A Resident Of Hong Kong. I Was Married In Another Country. Can I Still Obtain A Divorce In Hong Kong? [/INST] This is a common as there are many expatriates living in Hong Kong who wish to divorce in Hong Kong. As long as you e validly married in another country and can provide a Marriage Certificate, then you can apply for divorce in Hong Kong. Before doing so, you may want to consult with a divorce lawyer in your home country to determine the best place to divorce. To divorce in Hong Kong, you need to show one of the following Domicile Either you or your spouse was domiciled in Hong Kong on the date of the Petition Habitually Resident Either you or your spouse was habitually resident in Hong Kong for a period of three years immediately preceding the date of the Petition Substantial Connection Either you or your spouse had a substantial connection with Hong Kong on the date of the Petition These facts will need to be addressed in the Divorce for Petition to show the Family Court that the Family Court has jurisdiction over the matter. </s>

<s>[INST] Can I Receive Spousal Support In Hong Kong? [/INST] The Hong Kong Family Court will determine your ability to receive or pay spousal support (or “maintenance” as it’s called in Hong Kong) after weighing the following factors Income, earning capacity, property and financial resources now and in the foreseeable future Financial needs, obligations and responsibilities Standard of living enjoyed by the family prior to the breakdown of the marriage Age of each party and the duration of the marriage Physical or mental disability of either of the parties Contributions made by each party to the welfare of the family including taking care of the family Value to either of the parties of any benefit which that party will lose as a result of the breakdown of the marriage Conduct and all circumstances of the case While you wait for the Family Court to decide on maintenance, you can apply to the Family Court for interim maintenance (or “maintenance pending suit”) which is helpful when you have to pay bills and pay for expenses while waiting for a final determination. </s>

<s>[INST] Is there a presumption of an eual division of time between separating or divorcing parents? [/INST] Although the Court encourages eual division of time between parents as it is beneficial for children to spend time with both parents, there is no such presumption. The Court will assess the situation on a case-by-case basis, consider all the relevant circumstances of the child and the parents, and make an order that it considers is in the best interests and welfare of the child. </s>

<s>[INST] If the parties are in agreement on financial matters, is non-judicial resolution of these possible? What reuirements and restrictions apply in this regard and how does the process typically unfold? [/INST] If the parties are in agreement on financial matters, they should record and reflect their agreement by way of a consent summons to be filed with the court for approval and made into an order of the court. The court will not approve terms which fall out of its jurisdiction and/or may not be enforceable as an order, despite those terms being agreed and jointly sought by the parties. It is crucial for the terms of the financial settlement agreement to be recorded in an order of the court; otherwise, it would be difficult for the parties to seek judicial redress or to enforce such agreement in case of non-compliance or breach. </s>

<s>[INST] If the court is making a decision on a child moving to a different part of the state/country, what factors are taken into account? [/INST] For cases concerning the relocation of children to Mainland China, the Court will consider the same factors set out in 7.3 above. </s>

<s>[INST] Can a child decide which parent to live with after a divorce? [/INST] In Hong Kong, while a child's preference may be considered, it is ultimately up to the court to decide based on the child's best interests. The older and more mature the child, the more weight their preference might carry. </s>

<s>[INST] How are assets divided in a divorce in Hong Kong if one spouse has a higher income? [/INST] A In Hong Kong, the court considers various factors, including income and financial resources, when dividing assets in a divorce. </s>

<s>[INST] Can financial claims be made following a foreign divorce in your jurisdiction? If so, what are the grounds? [/INST] Financial claims may be made in Hong Kong by parties who obtained a foreign divorce, and the relevant provisions are set out in Part IIA MPPO. The same jurisdictional reuirements apply in relation to domicile, habitual residence and substantial connection for divorce. Parties to a foreign divorce may make an application for financial relief if the divorce is recognised as valid by the law of Hong Kong, but an application cannot be made if one of the parties has remarried. Leave must be obtained by the Court before a financial claim may be made, and leave will only be granted if there is substantial ground for making the application. This is notwithstanding the fact that an order for payments or trfer of property for the benefit of the applicant or the children of the family has been made by the foreign court. In considering whether to grant leave, the Court will consider the following factors the connection that the parties to the marriage have with Hong Kong; the connection that those parties have with the place where the marriage was dissolved or annulled or where they e legally separated; the connection that those parties have with any other place outside Hong Kong; any financial benefit that the applicant or a child of the family has received, or is likely to receive, in conseuence of the divorce, annulment or legal separation, by virtue of any agreement or the operation of the law of a place outside Hong Kong; if an order has been made by a competent authority outside Hong Kong reuiring the other party to the marriage to make any payment or trfer any property to, or for the benefit of, the applicant or a child of the family the financial relief given by the order; and the extent to which the order has been complied with or is likely to be complied with; any right that the applicant has, or has had, to apply for financial relief from the other party to the marriage under the law of any place outside Hong Kong and, if the applicant has not exercised that right, the reason for that; the availability of any property in Hong Kong in respect of which an order for financial relief in favour of the applicant may be made; the extent to which any order for financial relief is likely to be enforceable; and the length of time that has elapsed since the date of the divorce, annulment or legal separation. On the granting of leave by the Hong Kong Court, the Court has po to make financial orders akin to a divorce under Sections 4 to 6A MPPO. The leading authority in Hong Kong for Part IIA applications is C v H (Foreign Decree Part IIA) [2012] HKFLR 199. The threshold for obtaining leave is not very high as it is sufficient if an applicant can establish “provisionally” that Hong Kong is the appropriate venue. The statutory test does not reuire the applicant to prove hardship, injustice or exceptionality as a pre-condition in order to obtain leave. The Court adopted the principles in the recent case of M v G [2022] HKFC 242, although the application was rejected as the applicant failed to establish substantial connection. </s>

<s>[INST] Can co-habiting couples formalise their relationship in your jurisdiction (eg, through a civil partnership or similar)? [/INST] No they cannot. In Hong Kong, marriage is defined as "implies a formal ceremony recognized by law as involving the voluntary union for life of one man and one woman to the exclusion of all others (s.40, MO). </s>

<s>[INST] Can divorce proceedings be finalised while other related proceedings (eg, involving children or finances) are still ongoing? [/INST] If there are children who are under the age of 18, the petitioner/applicants must include in the petition/application their proposals as to custody and access. Ancillary relief – such as maintenance, trfer of property and division of matrimonial assets – can also be applied for by listing this in the petition/application. The divorce can be finalised only once the court is satisfied that the said children are the only children of the family to whom section 18 of the MPPO, Cap. 192 applies and the arrangements for their welfare have been made and are satisfactory or are the best that can be devised in the circumstances. </s>

<s>[INST] . When both parents are away for reasons like compulsory uarantine arrangement, a “Deed of Guardihip” is needed for the child? [/INST] Deed Of Guardihip 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 reuirements while you are not available. You should think about who is best for this role. You can also appoint successor guardihips. Domestic Helpers can be appointed but as they are employed by you, it's not advisable. It is ideally close to family and friends. </s>

<s>[INST] Can I seek a restraining order against my ex-partner if we e not married but living together? [/INST] A In Hong Kong, cohabiting couples may be eligible for restraining orders under the Domestic and Cohabitation Relationships Violence Ordinance. </s>

<s>[INST] What Is A Prenuptial Agreement? [/INST] A Prenuptial Agreement is an agreement reached between you and your future spouse prior to marriage. A Prenuptial Agreement deal with financial issues, namely the division of property, maintenance for a spouse and other financial arrangements perhaps dealing with family businesses and trusts. Strictly speaking, prenuptial agreements are not binding in Hong Kong. Even though prenuptial agreements are not binding upon the Hong Kong courts, the Family Court may take the terms of the prenuptial agreement into consideration when making rulings in a divorce. </s>

<s>[INST] Can foreign judgments and orders be enforced in your jurisdiction and if so how? [/INST] As mentioned in 1.2, the reciprocal recognition and enforcement of judgments and orders between mainland China and Hong Kong is governed by the Mainland Judgments in Matrimonial and Family Cases (Reciprocal Recognition and Enforcement) Ordinance (Cap 639). The MOO governs the recovery of maintenance by or from persons in Hong Kong from or by other persons in reciprocating countries. Overseas/foreign divorces (and legal separations) can be recognised in Hong Kong if they fulfil the reuirements set out in Part IX of the Matrimonial Causes Ordinance. Following an overseas/foreign divorce, the parties may apply to the court in Hong Kong for ancillary relief claims under Part IIA of the MPPO. </s>

<s>[INST] What would be your recommendations for managing relationship breakdown as painlessly as possible in your jurisdiction and what potential pitfalls would you highlight? [/INST] Precautions Before marriage, if the parties have substantial assets, seek legal advice as to whether a prenuptial agreement should be drafted and executed. During the marriage, it may be a good idea to enter into a postnuptial agreement – for example, in case of any significant changes in the parties' financial positions. If separation is anticipated, advice should be sought as soon as possible on separation (eg, a separation deed) and on the legal position relating to financial and/or children matters in case of divorce, such that the parties know what to expect and can consider their options and try to settle matters as soon as possible in order to save costs and time by avoiding litigation. The parties should be introduced to the idea of alternative dispute resolution as early on as possible, as well as during the proceedings, so that they can try to settle matters amicably. Practitioners should also use their best endeavours to try to help the parties to settle. During the divorce proceedings, the parties should be reminded to prioritise the best interests of the children, to keep them focused on resolving matters for the sake of the children. Pitfalls and traps The parties should not agree to any kind of settlement if either of them is unaware of the financial position of the other party and before full and frank financial disclosure. Sometimes the parties are too caught up in their own emotions and cannot see the bigger picture. It is therefore the job of their lawyers as well as mental health professionals to help them put their emotions aside and look at the issues objectively and rationally ​​ </s>

<s>[INST] To what extent and how has the court process and other dispute resolution methods for family law been adapted in your jurisdiction in light of the COVID-19 pandemic – e.g. virtual hearings, remote access, paperless processes? Are any of these changes likely to remain after the COVID-19 crisis has passed? [/INST] During the COVID-19 pandemic, there e periods of time when Hong Kong Courts e closed due to the severity of the situation in Hong Kong. Attendance of hearings or trials at the Family Court via videoconferencing facilities e allowed subject to leave from the Court, and straightforward applications could be dealt with by way of paper disposal. These particular practices have continued post-pandemic, which serves to reduce costs and waiting times for parties. </s>

<s>[INST] Do the courts treat foreign nationals differently on divorce? If so, what are the rules on applicable law? Can the court make orders applying foreign law rather than the law of the jurisdiction? [/INST] No, divorce applications brought by people of any nationality are treated the same in Hong Kong. Divorce proceedings can be brought in Hong Kong provided the parties meet the jurisdictional reuirement as explained in 1.1 above. Hong Kong Courts only have jurisdiction to make orders on Hong Kong law. That said, the Maintenance Orders (Reciprocal Enforcement) Ordinance (Cap. 188) and Foreign Judgments (Reciprocal Enforcement) Ordinance (Cap. 319) have provisions for the registration of foreign orders and judgments in Hong Kong for the purpose of facilitating the enforcement of foreign orders of maintenance and judgments. </s>

<s>[INST] How soon will the party's application be dealt with in these circumstances? [/INST] An injunction is usually applied for on an urgent basis; hence, an application can be dealt with within a few days or within one to two months' time. </s>

<s>[INST] What are the effects of judicial separation under the Matrimonial Causes Act 1973? [/INST] Judicial separation does not end a marriage but allows the parties to live apart without divorcing. It can be based on the same grounds as divorce, and the court can make orders regarding financial arrangements and child custody during the period of separation. </s>

<s>[INST] How does the court resolve disputes between parents about their children's upbringing? [/INST] The court resolves disputes based on what is in the child's best interests. This involves considering the child's wishes and feelings (depending on their age and understanding), their physical, emotional, and educational needs, and any harm they have suffered or are at risk of suffering​​. </s>

<s>[INST] Is a welfare report prepared by an independent professional or is the decision taken by the judge alone? If so, does the child meet the judge? [/INST] For contentious children matters, the Judge must consider the Social Welfare Report, which is prepared by an officer of the Social Welfare Department. The Social Welfare officer is considered the “eyes and ears” of the Court as he/she will conduct home visits, have meetings with both parents and observe the interaction of each parent with the child. The officer will thereafter submit a Social Welfare Report in which he/she provides an independent assessment of the situation and makes recommendations on custody and access issues. As a result, their reports carry significant weight but their recommendations are not binding on the Court. Whether the Judge will meet the child is at the sole discretion of the Judge, who may determine an application made or act on his/her own motion. The Judge may consider meeting a child if the child has, directly or through his/her lawyer, or through any social investigation officer or lawyer representing either parent, indicated a desire to meet with the Judge. The Judge should give proper consideration to a reuest from children who have been subjected to abuse and/or are in a high-conflict situation; there is a recommendation from a social investigation officer or the lawyer representing either parent; or in the opinion of the Judge, it appears to be in the interests of the child for such a meeting to take place. Guidance on meeting children, the factors for the Judge to consider and the relevant procedures are provided under Practice Direction PDSL5. </s>

<s>[INST] How does maintenance for a spouse play into divorce proceedings? [/INST] When determining maintenance, the Family Court will look to each specific circumstances including the following a. Income, earning capacity, property and financial resources now and in the foreseeable future b. Financial needs, obligations and responsibilities c. Standard of living enjoyed by the family prior to the breakdown of the marriage d. Age of each party and the duration of the marriage e. Physical or mental disability of either of the parties f. Contributions made by each party to the welfare of the family including taking care of the family g. Value to either of the parties of any benefit which that party will lose as a result of the breakdown of the marriage h. Conduct and all circumstances of the case Pending the determination of maintenance, you may also consider applying for maintenance pending suit. This order may be varied upon the final divorce decree as this is only temporary. Other ways in which the Family Court may deal with finances include periodical payments, secured periodical payments, order for the sale of property and property adjustment orders. </s>

<s>[INST] 2. My partner and I decided to live together. The flat was bought in his/her name. He/She paid the down payment and the monthly mortgage, and I am responsible for all household expenses and improvement works of the flat. Do I have any entitlement to the flat? [/INST] If it is shown that you and your partner had an intention (whether express, implied or presumed) as to how the flat was to be owned, then generally the intention would prevail. But if no such intention can be shown, then whether you have any interest in the flat would depend on whether the circumstances have given rise to a “constructive trust” in your favour. The principle is that if the flat is held in your partner’s name in circumstances where it is fair and just that you should have a share in the flat, your partner is compelled to hold your share on a “constructive trust” for you. The issue is whether you have done “enough” to justify an euitable claim. </s>

<s>[INST] How Do You Initiate Divorce Proceedings In Hong Kong? [/INST] To commence divorce proceedings in Hong Kong, you need to issue an Application for Divorce or a Petition for Divorce. A Petition for Divorce lists the grounds upon which you are filing for Divorce. Once the Petition for Divorce is filed, the Petition is served upon your spouse. The Family Court will deal with your Divorce in three separate sections There are three (3) matters to consider when dealing with divorce Dissolving the marriage (Divorce Main Suit) Children (custody, care and control, access) Ancillary Relief (Distribution of assets, financial matters relating to you and the children) To commence divorce proceedings in Hong Kong, you need to issue an Application for Divorce or a Petition for Divorce. A Petition for Divorce lists the grounds upon which you are filing for Divorce. Once the Petition for Divorce is filed, the Petition is served upon your spouse. </s>

<s>[INST] How are lump sum orders determined? [/INST] Lump sum orders are one-time payments made to a spouse, determined based on the parties' financial resources and needs, and the aim of achieving fairness. </s>

<s>[INST] Can foreigners adopt a child from Hong Kong? [/INST] Yes, foreigners can adopt a child from Hong Kong. They must meet the same reuirements as local residents and may also need to comply with the adoption laws of their home country. </s>

<s>[INST] What orders can the court make in relation to the division of assets on divorce or judicial separation? [/INST] The court can make the following orders in relation to the division of assets an order for a lump-sum payments, reuiring one party to pay the other party a lump-sum payment either on a one-off basis or in instalments; a property trfer/settlement order, reuiring one party to trfer the ownership of a property to the other party; a variation of settlement order, varying the terms of a trust/settlement in place; a sale of property order; and other remedies as the court sees fit. </s>

<s>[INST] Can marital agreements cover a spouse’s financial claims on divorce, e.g. for maintenance or compensation, or are they limited to the election of the matrimonial property regime? Can they deal with financial claims regarding children, e.g. child maintenance? [/INST] There is no matrimonial property regime in Hong Kong. All property held by each spouse is considered matrimonial property available for division at the time of divorce, unless there is a nuptial agreement in place agreeing what assets cannot be shared. Nuptial agreements can cover a spouse’s financial claims on divorce. In appropriate circumstances, the Court could hold the parties to the agreement even when the result would be different from that which the Court would otherwise have ordered. These agreements may only deal with financial claims regarding children if such children had been born at the time of signing of the agreement. </s>

<s>[INST] What are Mesher orders and Martin orders? [/INST] Mesher orders delay the sale of the marital home until a specific event occurs, such as the youngest child reaching adulthood. Martin orders allow one party to live in the marital home for life or until remarriage. </s>

<s>[INST] Can capital or property orders be made to or for the benefit of a child? [/INST] Yes, lump sum orders and trfer of property orders are available. Property orders can only cover property to which either of the parties is entitled, either in possession or reversion. </s>

<s>[INST] What is the role of pension sharing orders in divorce settlements? [/INST] Pension sharing orders are used to divide pension assets between divorcing parties. The court can order that one spouse's pension be split, providing the other spouse with a share of the pension benefits. This is particularly important in ensuring a fair division of assets accumulated during the marriage. </s>

<s>[INST] Is the position different between capital and maintenance orders? If so, how? [/INST] No, the Court determines the appropriate financial order based on the factors and guideline as explained in 2.3 above. Where possible, i.e. there are sufficient family assets, the Court will most likely make a capital order to achieve a clean break for the parties. The Court of Final Appeal in MKKWH (also known as MKGWH) v RKSH [2015] 18 HKCFAR 210 stated that parties should try to achieve a clean break following a divorce so that finality in litigation (which has a special application in matrimonial matters) can be achieved. However, as explained in 2.3 above, it is often the case that parties only have sufficient assets to cover their respective financial needs, in which case a maintenance order will likely be made after considering the ability of the paying party to pay and the reasonable financial needs of the receiving party. </s>

<s>[INST] Is non-judicial divorce available in your jurisdiction? What reuirements and restrictions apply in this regard and how does the process typically unfold? [/INST] Non-judicial divorce is not available in Hong Kong. </s>

<s>[INST] Are prenuptial and postnuptial agreements recognised in Hong Kong? [/INST] In the case of SPH v SA, the Court of Final Appeal in Hong Kong ruled that whilst the Court is not obliged to give effect to nuptial agreements, it should give weight to such agreements where it is fair to do so. In other words, nuptial agreements are not strictly binding in Hong Kong. Such agreements would only carry weight if each party had entered into the agreement of his or her own free will, having all the material information and intending that it should be effective to govern the financial arrangements if their marriage comes to an end. It is advisable for both parties to seek independent legal advice before entering into any nuptial agreements. </s>

<s>[INST] Do co-habiting couples have any rights in the event of the breakdown of the relationship? On what grounds can they exercise those rights? [/INST] The matrimonial law on Hong Kong does not apply to co-habiting couples except for when there are children involved, in which case the rights of the children will still be protected. Unmarried couples do not have rights to apply for financial relief orders for themselves e.g. division of property and spousal maintenance, under the matrimonial legislations in Hong Kong in the event of the breakdown of the relationship. The cohabitees can only rely on the common legal remedies available, e.g. breach of contract, claim for resulting, implied or constructive trust in respect of a property in which the other party has contributed to the purchase price and/or mortgage. </s>

<s>[INST] Does a specific marital property regime apply in your jurisdiction? [/INST] Hong Kong follows other common law jurisdictions and has adopted the separation of property regime, where all property acuired by each of the spouses – whether before or during the marriage – belong to the acuiring spouse and he or she is free to use and dispose of the property. </s>

<s>[INST] Do I need a lawyer in order to get a divorce? [/INST] Although it is not necessary for you to hire a lawyer to act for you in the divorce proceedings, it is advisable to consult a lawyer first before commencing the divorce proceedings to understand the procedures and your rights, especially if your spouse does not agree to a divorce and/or neither of you can agree on the arrangements to be made for the children or financial matters. If you are facing financial difficulties, you may try to apply for the Legal Aid Scheme administered by the Legal Aid Department. </s>

<s>[INST] What orders can the court make in relation to children? Does the court automatically make orders in relation to child arrangements in the event of divorce? [/INST] The Court can make orders in relation to custody, care and control, and access to the children. Custody me the right to make major decisions for the child, such as those relating to medical care, education and religion. In general, there is only a slight difference between sole and joint custody. In a joint custody arrangement, one party has to seek the consent of the other party before making such decisions for the child. On the other hand, if one parent has sole custody of the child, he/she has the authority to make the final decision on the child’s major upbringing decisions, but only after consulting and giving full rational consideration to the other parent’s views. The non-custodial parent, on the other hand, has no po of veto, but could call upon the court to decide any disagreement (PD v KWW [2010] 4 HKLRD 191). Care and control refers to the day-to-day care of the child by the parent who has physical control of the child and the responsibility of attending to the child’s immediate care by virtue of being a primary carer. The child will typically reside with a parent with sole care and control. Access gives the right to the parent who does not have care and control to spend time with the child. There are various types of access arrangements and will depend on the child’s best interests and schedule. Access can also be exercised remotely by way of telephone or video, or can be for defined periods of time during the week such as weekend or overnight access, or for parts of the day such as dinner access. The Court draws a thin line between sole and shared care and control and encourages both parties to be involved in the child’s upbringing, if appropriate. By awarding access to a parent, it is effectively awarding a form of shared care and control as a parent assumes care and control of the child for the time that the child is in the parent’s physical custody. The Court will make orders in relation to child arrangements. Even if the parties have reached an agreement outside of Court, their agreements can be made into a court order by way of Consent Summons submitted for the Court’s approval. Before a Decree Absolute is granted, the Court must make a declaration under Section 18 MPPO, i.e. that arrangements for the welfare of every child of the family have been made and are satisfactory or are the best that can be devised in the circumstances. </s>

<s>[INST] Do Cohabitating Couples Have Rights In Hong Kong? [/INST] Unmarried couples are not entitled to the same rights as married couples. There is no such thing as a “common law” couple in Hong Kong. However, cohabitating couples may be protected under certain laws for example laws relating to domestic violence in relationships or laws related to children born out of wedlock. </s>

<s>[INST] In your view, what are the significant developments in family law in your jurisdiction in the last two years and anticipated in the next year? [/INST] There have been various developments to improve Family Court procedures and create a system that is beneficial to all users. This includes the enactment of the MJMFO mentioned in 1.6 above, updating of court forms and the introduction of new case management procedures in the Family Court. Practice Direction SL10.4 was issued in August 2021 to achieve better case management in children proceedings and ancillary relief proceedings in the Family Court. To enhance effective case management and timetabling of cases, Family Judges are divided into “Allocated Judges”, who are responsible for conducting CDR, FDR and trials, and “Case Management Judges”, who deal with initial case management aspects of the proceedings and the processing of interlocutory applications. To minimise delay in the proceedings, target timetables will be initiated by Judges so that the parties have a target completion date for their proceedings. Further, new Practice Direction 37 sets out timelines for the handing down of reserved judgments in the District Court, Lands Tribunal and Family Court with a view to ensuring that reserved judgments are handed down as expeditiously as reasonably practicable depending on the circumstances of the case. Due to the special nature of proceedings in the Family Court and to give priority to children matters, a degree of flexibility is reuired in fixing time for handing down reserved judgments in the Family Court. From 9 January 2023 onwards, Practice Direction 37 stipulates that For trials and substantive applications in relation to children matters, judgment will be handed down within six months after the conclusion of the hearing. For trials and substantive applications in relation to other proceedings, judgment will be handed down within nine months after the conclusion of the hearing. For paper applications, judgment will be handed down within three months after the close of the parties’ submissions. For interlocutory applications before Docket Judges, they are expected to be able to deliver judgment at the conclusion of the hearing of a contested matter; however, in the event that judgment is reserved, judgment will be handed down within three months after conclusion of the hearing. Family Court procedures are currently fragmented and convoluted, spanning over several statutes, which makes them difficult to understand (especially for laymen). A new Family Procedure Bill (“FPB”) was gazetted in March 2023 and tabled before the Legislative Council to be enacted into law in due course. The FPB intends to consolidate the various pieces of primary legislation and procedural rules of the family justice system into one piece of legislation. Apart from streamlining procedures and consolidating the various statutes, one key development is the introduction of a Family Masters system, whereby Family Court Masters take up certain case management functions of Family Judges to alleviate their heavy caseload. These Judges are the Case Management Judges referred to under Practice Direction SL10.4 above. The FPB will help to enable the more efficient and expeditious handling of Family Court cases. </s>

<s>[INST] Do I have any right if my partner and I are not married but we do have a child? [/INST] In this situation, the mother has all parental rights and authority in respect of the child born out of wedlock while the father does not automatically have such rights. However, the father may seek an order from the Court and would usually be granted such rights. The mother may apply for maintenance for the financial support of the child if the child lives with her. The Court also has po to make an order that an amount of allowance, commonly known as “Carer’s Allowance”, be paid to the primary carer of the child. </s>

<s>[INST] Are there any laws and regulations protecting same-sex and/or co-habiting couples in your jurisdiction? If so, what are they? [/INST] Under the Domestic and Cohabitation Relationships Violence Ordinance (Cap. 189), it is expressly provided that both opposite sex and same-sex cohabitees may apply for relief against domestic violence in Hong Kong. The Court can make various types of order including ouster orders to restrain the Respondent from entering or remaining in a specified area, usually the Applicant's residence; non-molestation orders to restrain the Respondent from molesting and harassing the Applicant and/or specified minor etc. </s>

<s>[INST] What alternative dispute resolution (ADR) methods to resolve family law matters are available in your jurisdiction? [/INST] Family mediation Family mediation was introduced in Hong Kong in 2000. Parties can enter into it voluntarily; and once a mediated agreement is reached, the parties have to apply to the court for an order to make the agreement enforceable. Collaborative practice This is a voluntary process through which the parties to a family dispute enter into a contractual agreement with trained collaborative professionals – such as lawyers, health professionals and financial specialists – to work collaboratively to resolve the parties' issues by finding mutually acceptable solutions. The agreement reached must be made into an order of the court. Private financial adjudication (PFA) This is a pilot scheme for parties to settle financial disputes in matrimonial and family proceedings with the assistance of an appointed adjudicator. PFA can be used in the following proceedings applications for ancillary relief, financial orders and/or financial relief based on Part II and Part IIA of the Matrimonial Proceedings and Property Ordinance (MPPO) (Cap 192); applications for maintenance and/or financial orders under the Guardihip of Minors Ordinance (Cap 13); applications under Section 3 of the Separation and Maintenance Ordinance (Cap 16) for an order for payment under Sections 5(1)(c), 5(1)(d), 5(1)(e) and 9 of the ordinance; applications for financial provision under the Inheritance (Provision for Family and Dependants) Ordinance (Cap 481); applications of a financial nature in matrimonial and family proceedings to which the court agrees that the procedure should apply; and applications for costs regarding any of the above applications or proceedings. Private financial dispute resolution (FDR) Private FDR is usually conducted by retired judges or experienced family law practitioners who are appointed jointly by the parties, and who facilitate the negotiations between the parties with a view to reaching a settlement. The process is more or less the same as the FDR process in the judicial process. </s>

<s>[INST] How does the divorce process typically unfold and what is the general timeline? [/INST] The stages of a typical divorce process are as follows filing a divorce petition; serving the petition on the respondent; applying for a tentative court order for divorce (decree nisi); and applying for a final order for divorce (a decree absolute). Filing a petition There are different forms to be submitted, depending on whether the proceeding is initiated by a petition or a joint application. In the former case, the spouse commencing the legal proceedings is the petitioner, while the other is the respondent. Serving the petition on the respondent The petitioner must serve a sealed copy of the petition on the respondent, either personally or by post. If this fails, the petitioner can advertise the petition in newspaper after obtaining leave from the court for substituted service. Applying for a decree nisi If the respondent does not object to the petition, the petition will be set down in the Special Procedure List. If the registrar is satisfied that the contents of the petition or application are proved, both parties will receive a copy of a certificate of such satisfaction setting out the terms that both parties have agreed. Thereafter, the court will grant a decree nisi (a tentative court order) to dissolve the marriage. If the respondent objects to the petition for divorce the petition will be set down in the Defended List; and either or both of the parties may need to attend the court hearing. The court will then either grant a decree nisi; or dismiss the petition if insufficient evidence is found. Applying for a decree absolute Six weeks after the decree nisi is granted, the petitioner or the joint applicants can apply for the decree to be made absolute. If the spouses have children, the decree nisi will remain tentative until the court is satisfied with the arrangements that have been made for them. It is the performance pledge of the judiciary that pronouncing a decree nisi takes 50 days for petitions under the Special Procedure List; and 110 days for petitions under the Defended List. </s>

<s>[INST] Is the concept of matrimonial property recognised in your jurisdiction? [/INST] Yes, matrimonial property is subject to distribution in divorce proceedings in Hong Kong and the starting point in a long marriage (i.e. around 10 years or above) is eual division as explained in 2.2 above. The Court is often reuired to determine whether assets such as pre-marital assets or assets obtained by one party outside of marriage, such as inheritance or assets acuired post-separation, are matrimonial properties. Cases involving third-party interests, such as arrangements made between family members on legal and beneficial ownership of properties, are very common and the third party (e.g. a parent of a party) may be reuired to intervene in the matrimonial proceedings to assert his/her beneficial interests. In some cases, the Court may list the determination of beneficial ownership of the property as a preliminary issue as it is not possible to divide a matrimonial pot until it is certain what it encompasses. </s>

<s>[INST] What laws and regulations govern surrogacy agreements in your jurisdiction? What specific considerations and concerns should be borne in mind in this regard? [/INST] Surrogacy arrangements in Hong Kong are governed by the Human Reproductive Technology Ordinance (Cap 561) (HRTO), which regulates reproductive technology procedures; embryo research; and the proper storage and disposal of embryos and gametes to be used for such purposes. Pursuant to Section 14 of the HRTO, only the gametes of the parties to a marriage can be used in a surrogacy arrangement. Section 15 of the HRTO prohibits sex selection and the provision of reproductive technology to unmarried couples. While the HRTO allows for surrogacy arrangements which do not involve any commercial element, pursuant to Section 18 of the HRTO, no surrogacy arrangement is enforceable by or against any of the persons who enter into it. </s>

<s>[INST] I Am A Resident Of Hong Kong. I Was Married In Another Country. Can I Still Obtain A Divorce In Hong Kong? [/INST] This is a common as there are many expatriates living in Hong Kong who wish to divorce in Hong Kong. As long as you e validly married in another country and can provide a Marriage Certificate, then you can apply for divorce in Hong Kong. Before doing so, you may want to consult with a divorce lawyer in your home country to determine the best place to divorce. To divorce in Hong Kong, you need to show one of the following Domicile Either you or your spouse was domiciled in Hong Kong on the date of the Petition Habitually Resident Either you or your spouse was habitually resident in Hong Kong for a period of three years immediately preceding the date of the Petition Substantial Connection Either you or your spouse had a substantial connection with Hong Kong on the date of the Petition These facts will need to be addressed in the Divorce for Petition to show the Family Court that the Family Court has jurisdiction over the matter. </s>

<s>[INST] Do Hong Kong Courts Recognize Surrogacy Arrangements? [/INST] In Hong Kong, overseas surrogacy agreements are not enforceable and Hong Kong commercial surrogacy agreements are illegal. As this is a very new and developing area of law in Hong Kong, you should consult with a ualified professional who is familiar with the laws of Hong Kong to ensure that no illegal activity is committed. </s>

<s>[INST] How Is Child Support Determined? [/INST] The parent with care and control is entitled to seek financial support for the children. In determining child maintenance, the Family Court will look at all circumstances including but not limited to the following Financial needs of the children Standard of living enjoyed by the family Physical and mental disability of the children Manner in which the children e brought up and the expectations of the parties for the children to be educated Financial resources and needs or obligations of the parties to the marriage Any income, earning capacity, property or other financial resources of the children By looking at the above key factors, the Family Court is trying to place the children in a financial position similar to what they would have been had the marriage not broken down. Many times, maintenance for children is needed immediately so the parent with care and control can seek interim maintenance before a final decision is made regarding children’s maintenance. </s>

<s>[INST] Are same-sex marriages recognized in Hong Kong? [/INST] Same-sex marriages are not recognized under Hong Kong law and thus a valid marriage under Hong Kong law is heterosexual and not open to couples of the same sex. Parties must be male and female to have the capacity to marry in Hong Kong. </s>

<s>[INST] What basis is child maintenance awarded? [/INST] The parent with care and control will be entitled to reuest financial support for the children. Many times, pending the determination of the divorce proceedings, there will be a need for immediate financial assistance with respect to the children. In such circumstances, you may make an application to the Family Court for interim maintenance pending suit for the children. In determining child maintenance, the Family Court will look at all circumstances including but not limited to the following a. Financial needs of the children b. Standard of living enjoyed by the family c. Physical and mental disability of the children d. Manner in which the children e brought up and the expectations of the parties for the children to be educated e. Financial resources and needs or obligations of the parties to the marriage f. Any income, earning capacity, property or other financial resources of the children Essentially the Family Court is trying to place the children, as far as practicable in a financial position similar to what the children would have been if the marriage had not broken down. It is important to note that maintenance with respect to the children can be varied at any time both prior to a Decree Absolute and more after. </s>

<s>[INST] Rather Than Divorce, Can I Get Separated Instead? What About An Annulment? [/INST] Yes, if you are not prepared to file for Divorce, then another option would be a Judicial Separation in Hong Kong. In Hong Kong, you can obtain a separation based on either (1) adultery or (2) behavior. But you must remember that if you are separated, you are not divorced so you cannot get remarried. So if you decide to remarry, you still have to get a divorce. If on the other hand, you want an annulment, you have to prove that the marriage was invalid. Invalid could be for example, bigamy or the other party did not validly consent to the marriage because he/she was under duress, mistake or unsoundness of mind. These are only a few examples of what would constitute a basis for annulment. </s>

<s>[INST] Is it common for expert evidence to be adduced and used in court (eg, forensic accountants, valuations of companies/properties)? [/INST] Yes, this is routinely used for the valuation of shares; companies; landed properties; and more recently, non-fungible tokens and cryptocurrencies. </s>

<s>[INST] What financial orders can the court make on divorce? [/INST] The Court’s po to make financial orders is governed by MPPO. During the course of the proceedings pending the grant of a Decree Absolute, the Court may make an order under Section 3 MPPO for maintenance pending suit (“MPS”), also known as interim maintenance, which is essentially an order for the provision of maintenance pending the grant of a final divorce decree. MPS usually takes the form of regular payment such as monthly payments. It will terminate and be replaced when the Court makes a final financial order. It is also possible to obtain litigation funding by me of an interim maintenance order so that the financially weaker spouse has the me to continue with his/her legal representation on the principle of levelling the playing field. Such order will usually be made to the claimant’s legal representative KGL v CKY [2003] 2 HKLRD 301. Pursuant to Section 4 MPPO, on granting a decree for divorce, the Court may make financial orders for periodical payments, secured periodical payments and lump sum payments. A periodical payment order is an order for maintenance to be paid after Decree Absolute is granted, which will normally terminate upon the death of either party or remarriage of the payee. Owing to the continuing paying obligation imposed on the payer, a periodical payment order is subject to variation, which may be applied by either party to the proceedings. Secured periodical payments, as the name suggests, are periodical payments with the added protection of security or guarantee given by a specific asset ordered by the Court. The order will be made when there are reasonable grounds to believe that payment will not be made under a common periodical payment order, such as a history of the payer failing to abide by court orders. Lump sum orders are orders for payment of a capital sum. There can only be one capital sum whose amount cannot vary but can be paid in instalments. Pursuant to Sections 6 and 6A MPPO, the Court is also empoed to make various orders, including a property adjustment order, a settlement of property order, an order extinguishing or reducing the interests of either of the parties to the marriage under any such settlement, and an order for sale of property. Under Section 5 MPPO, the Court can make similar financial provisions for the children of the family before a Decree Nisi is granted. </s>

<s>[INST] How can a marriage be ended through presumption of death under the MCA 1973? [/INST] A marriage can be ended through presumption of death if one spouse has been absent for at least seven years and is presumed dead. The surviving spouse can then petition for a decree of presumption of death and dissolution of marriage under Section 19 of the Matrimonial Causes Act 1973​. </s>

<s>[INST] Without court orders, what can parents do unilaterally? For example, can they take a child abroad? [/INST] If no children proceedings have commenced, either parent will be able to take the child abroad without making a court application or obtaining consent of the other party. Once proceedings have commenced, the travelling parent will usually reuire the consent of the other parent or leave from the Court. The Court can make an order that neither party can take the child of the family abroad without a court order or consent of the party. Upon the making of a custody order, there will be a standard term in the order that neither parent can remove the child from Hong Kong without leave from the Court until he/she reaches the age of 18. A travelling parent can only remove the child from Hong Kong for a specified period if he/she provides a general undertaking to the Court that he/she will return the child to Hong Kong when called upon to do so and with the written consent of the other party. These types of court orders can be provided to the Immigration Department of Hong Kong to avoid any individual unilaterally attempting to take the child out of Hong Kong. </s>

<s>[INST] payments? [/INST] 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 reuirements 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 me $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. </s>

<s>[INST] Are foreign divorces recognised in your jurisdiction? If so, what are the procedural reuirements, if any? [/INST] Foreign divorces and legal separation are recognised in Hong Kong under Part IX MCO if they have been obtained by me of judicial or other proceedings and are effective under the law of that place. Either spouse has to be a habitual resident (or domicile), or a national of the place where the foreign divorce was obtained. However, a foreign divorce or legal separation will not be recognised in Hong Kong if the other spouse is not given sufficient notice or opportunity to take part in the divorce proceedings or if it is against public policy. There are no specific procedural reuirements on recognition of a foreign divorce or legal separation in Hong Kong. However, the Hong Kong Court will look to the finding of facts in the proceedings where the foreign divorce was obtained in deciding whether a foreign divorce or legal separation is entitled to recognition. The position for divorces obtained in Mainland China is different following the enactment of the Mainland Judgments in Matrimonial and Family Cases (Reciprocal Recognition and Enforcement) Ordinance (Cap. 639) (“MJMFO”), which came into effect on 15 February 2022. The MJMFO provides specific provisions on the recognition of Mainland divorce certificates and under Part 3 MJMFO, a party to a divorce specified in a Mainland divorce certificate issued on or after 15 February 2022 may apply to the District Court of Hong Kong for an order to have the certificate recognised in Hong Kong. The District Court shall order that the certificate be recognised if it is satisfied that the certificate is valid in the Mainland and shall presume so if the certificate is notarised in accordance with the law of the Mainland until the contrary is proved. </s>

<s>[INST] What Is A Prenuptial Agreement? [/INST] A Prenuptial Agreement is an agreement reached between you and your future spouse prior to marriage. A Prenuptial Agreement deal with financial issues, namely the division of property, maintenance for a spouse and other financial arrangements perhaps dealing with family businesses and trusts. Strictly speaking, prenuptial agreements are not binding in Hong Kong. Even though prenuptial agreements are not binding upon the Hong Kong courts, the Family Court may take the terms of the prenuptial agreement into consideration when making rulings in a divorce. </s>

<s>[INST] If I buy a property in the name of my partner, am I entitled to any interest in the property? [/INST] If a property is purchased in your partner’s name but you have contributed towards the purchase price, and there is nothing to show that you intend to give up your interest in the property, then it is presumed that you intend to keep the interest (known as “beneficial interest”) and your partner is holding your interest in the property on trust for you. Unless this presumption is rebutted, you would be a “beneficial owner” of the flat even though you are not a registered legal owner. In the situation where the purchase price is paid solely by you, you may even be the sole beneficial owner of the property. </s>

<s>[INST] Is Divorce Based On fault In Hong Kong? [/INST] It depends. In Hong Kong, you can file for divorce under the following grounds Adultery Unreasonable Behaviour One Year Separation with consent of the other party Two Year Separation without consent Desertion by your spouse for at least a period of one year Joint Application </s>

<s>[INST] My spouse and I have separated, but we are still living in the same home. Can we still get a divorce based on separation? [/INST] Yes, it is possible for you to file for divorce based on separation as long as the living arrangements between you and your spouse are explained to the Court and the Court is satisfied that you and your spouse are living as two separate households even though the two of you are still living under the same roof. </s>

<s>[INST] How soon after the marriage can I commence divorce proceedings? [/INST] Unless the Court allows otherwise, you can only commence divorce proceedings if you have been married for at least 1 year. </s>

<s>[INST] What are the grounds for a divorce? For example, is there a reuired period of separation; can the parties have an uncontested divorce? [/INST] Under Hong Kong law, a petition for divorce can only be brought to Court on the ground of irretrievable breakdown of marriage. The Petitioner, i.e. the applicant, has to prove one of the following five factors set out in Section 11A MCO adultery of the Respondent, i.e. spouse of the Petitioner; unreasonable behaviour – the Respondent has behaved in such a way that the Petitioner cannot reasonably be expected to live with the Respondent; one year of separation (with the spouse’s consent) – the parties have lived apart for a continuous period of at least one year immediately preceding the divorce application and the spouse consents to an application on this basis; two years’ separation – the parties have lived apart for a continuous period of at least two years immediately preceding the divorce application; or desertion of the Respondent. There is essentially no difference in relying on a “fault”-based or “non-fault”-based ground in terms of obtaining a divorce, except that establishing a “fault” fact may be more costly and time-consuming as it reuires proof of the Respondent’s misconduct for the Court to grant the divorce. There is also a possibility of resistance if the Respondent disagrees or is unwilling to accept the allegations of fault. Having said that, if there is a “non-fault”-based ground on which the couple could obtain a divorce, the Court will encourage parties to adopt that ground as opposed to a “fault”-based ground Grenfell v Grenfell [1978] Fam 128. Regardless of the fact relied on in issuing a divorce application, if the Respondent does not seek to contest the divorce, a Form 4 (Acknowledgement of Service) could be filed with the Court indicating that he/she has no intention to defend the divorce. The Respondent has eight days to file the Form 4 from the date of service of the petition (including the date of service) and if it is not filed within the prescribed time limit, the petition can proceed undefended provided that service of the petition is proved. An alternative to bringing about divorce proceedings is by way of a joint application whereby both parties jointly apply to Court proving that they have lived apart for a continuous period of at least one year. Both parties are reuired to jointly sign all relevant court documents. Generally speaking, no petition for divorce can be presented to a Hong Kong Court within one year from the date of the marriage unless it can be shown that exceptional hardship was suffered by the Petitioner or exceptional depravity on the part of the Respondent. However, the Court will take into consideration the interests of any child of the family and whether there is reasonable probability of a reconciliation between the parties in the remaining period before the one-year period expires. To avoid costly proceedings on the ground of divorce, practitioners will often seek to reach an agreement on mild particulars of behaviour, such as loss of affection, for the parties to reach a swift agreement on the divorce, which will enable parties to focus on more important matters of children and ancillary relief. Mild behaviour can also be pleaded as an alternate ground to one-year separation to encourage parties to adopt a “non-fault”-based ground by consenting to the one-year separation. </s>

<s>[INST] How To Minimize Legal Divorce Fees (Affordable Divorce In Hong Kong)? [/INST] 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 me 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. . What is the best way to sort out arrangements for maintenance </s>

<s>[INST] . What if there is an access order and one parent refuses to facilitate? [/INST] 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 conseuences 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. </s>

<s>[INST] What if one parent relocates to another country and the other parent does not agree? [/INST] 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 me. Even if you have sole custody of your child and you want to relocate, you are still reuired 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. </s>

<s>[INST] Is there separate representation for children in your jurisdiction and, if so, who would represent them, e.g. a lawyer? [/INST] Children can be separately represented in Hong Kong pursuant to Rules 72 and 108 MCR. As mentioned in 5.5 above, a child cannot participate in proceedings and therefore, a guardian ad litem will be appointed to represent the interest of the child if the Court sees fit. Family members of the child are not recommended to be the guardian ad litem as there could be a conflict of interest. A guardian ad litem who is not the official solicitor must represent the child through a solicitor. Even if the guardian ad litem is a solicitor, the solicitor must engage the services of another solicitor. The guidance note on separate representation for children is set out under Practice Direction PDSL6. Paragraph 15 PDSL6 sets out a non-exhaustive list of circumstances in which the Judge could consider making an order for a child to be separately represented, as follows where there is an intractable dispute over custody or access, including where all access has ceased, where there is irrational but implacable hostility to access, where the child may be suffering harm associated with the access dispute, or where it is intended that there be termination of access; where a parent has a disability and is represented through a guardian ad litem or next friend and custody/access is in dispute; difficult cases that involve a foreign element, immigration problems or permanent removal from the jurisdiction such that it would, for all practical purposes, exclude the other party from the possibility of access to the child; where the child has a standpoint or interests that are inconsistent with or incapable of being represented by any of the adult parties or cannot be adeuately met by a report to the Court; where an older child is opposing a proposed course of action; where the child is apparently alienated from one or both parents; where there are real issues of cultural or religious differences affecting the child; where there are complex medical or mental health issues to be determined or there are other unusually complex issues that necessitate separate representation of the child; where there are serious allegations of physical, sexual or other abuse in relation to the child or there are allegations of domestic violence not capable of being resolved with the help of a Social Welfare officer; where the proceedings concern more than one child and the welfare of the children is in conflict or one child is in a particularly disadvantaged position; where there is a contested issue about blood testing; where the conduct of either or both of the parents or some other person having significant contact with the child is alleged to be antisocial to the extent that it seriously impinges on the child’s welfare; where, based on the material filed by the parents, neither parent seems a suitable custodian; where an older child is expressing strong views that, if given effect, would involve changing a longstanding custodial arrangement or a complete denial of access to one parent; where it is proposed to separate siblings; in relation to applications in the Court’s welfare jurisdiction relating in particular to the medical treatment of children where the child’s interests are not adeuately represented by one of the parties; and where none of the parties are legally represented. </s>

<s>[INST] How does the Civil Partnership Act 2004 address the dissolution of civil partnerships? [/INST] The Civil Partnership Act 2004 allows for the dissolution of civil partnerships on similar grounds to divorce, including unreasonable behaviour, separation for a specified period, and desertion. Dissolution can be petitioned after one year of the civil partnership. </s>

<s>[INST] Can a child (adult or minor) make a direct claim for child support? If so, under what circumstances? [/INST] No, a child cannot make a direct claim for child support in Hong Kong; this must be done by the party who has custody of the child. </s>

<s>[INST] What Is Mediation? [/INST] Mediation is when you and your spouse agree to meet with a professionally trained mediator. The mediator will help facilitate discussion between you and your spouse about key issues that need to be resolved. A mediator is not a judge and cannot make orders, but a mediator will explain how the Hong Kong Family Court may determine a certain issue based on your specific circumstances. You and your spouse can elect to attend mediation to resolve issues rather than go through the Family Court system in Hong Kong. Mediation can help alleviate the emotional and financial drain of litigation. Mediation can be conducted by way of individual and/or joint sessions. If you or your spouse enlist the representation of a solicitor, your solicitor can assist you in the mediation process as well. Depending on the complexity of the outstanding issues, mediation sessions can take as little as a day and can extend to an intermittent period of several months. </s>

<s>[INST] What Is Mediation? [/INST] Mediation is when you and your spouse agree to meet with a professionally trained mediator. The mediator will help facilitate discussion between you and your spouse about key issues that need to be resolved. A mediator is not a judge and cannot make orders, but a mediator will explain how the Hong Kong Family Court may determine a certain issue based on your specific circumstances. You and your spouse can elect to attend mediation to resolve issues rather than go through the Family Court system in Hong Kong. Mediation can help alleviate the emotional and financial drain of litigation. Mediation can be conducted by way of individual and/or joint sessions. If you or your spouse enlist the representation of a solicitor, your solicitor can assist you in the mediation process as well. Depending on the complexity of the outstanding issues, mediation sessions can take as little as a day and can extend to an intermittent period of several months. </s>

<s>[INST] 10.3 What specific considerations and concerns should be borne in mind where family law disputes involve foreign parties? [/INST] The parties may have to serve documents in matrimonial proceedings out of Hong Kong in foreign jurisdictions without leave of the court (Rule 109 of the Matrimonial Causes Rules). However, the parties must comply with the laws and rules on service of documents in that foreign jurisdiction (Order 11 rule 5(3)(a), Rules of District Court). The issue of competing jurisdictions and forum non conveniens may also arise if the opposing foreign party has already initiated or intends to initiate family proceedings abroad (please see 2.2 for a summary of the applicable principles). If one party intends to seek financial relief under the MPPO, and the other party intends to defeat the claim for financial provision and is about to make or has already made any disposition, or has sought to trfer assets out of the jurisdiction, the party may apply to the court for an order to restrain or set aside the disposition of assets (Section 17 of the MPPO). There are also enforcement issues, relocation issues and other issues such as child abduction which have already been covered elsewhere in this &A. </s>

<s>[INST] How can a party seek immediate assistance from the court in a domestic violence situation to protect himself or herself and the children, and what kinds of orders can the court make in this regard? [/INST] A party can make an application to the Court of First Instance or the District Court for an injunction/restraining order under the Domestic and Cohabitation Relationships Violence Ordinance (Cap 189) (DCRVO). The court can grant the followings type of injunctive orders a non-molestation order, prohibiting the respondent from molesting the applicant; an ouster order, prohibiting the respondent from going into or staying in the home of the applicant; or where the applicant is being restrained by the respondent from entering his or her home, a re-entry order, which allows him or her to enter and stay in the premises. Ouster orders and re-entry orders are valid for up to 24 months and can be renewed once if the court finds this appropriate. </s>

<s>[INST] What are the procedural reuirements for a marital agreement to be enforceable on divorce? [/INST] A marital agreement can only carry full weight if it meets both procedural and substantive fairness. Procedural fairness refers to the surrounding circumstances before the parties entered into a marital agreement. It is important that the parties signed the agreement under free will, without undue influence or pressure, with full disclosure and after obtaining independent legal advice. If one party chooses not to seek independent legal advice, it would be prudent to reuest him/her to sign an acknowledgment stating he/she does not wish to exercise his/her right to seek independent legal advice. For prenuptial agreements, it is recommended that it be signed at least 28 days before the intended marriage, as this will give both parties sufficient time to consider and negotiate the terms of the agreement. Substantive fairness refers to the financial provisions in the marital agreements. The agreement could be rendered unfair if one party would be left in a predicament of real need while the other enjoyed a sufficiency upon an unforeseen circumstance or at the time of separation. In other words, the agreement needs to cater to the needs (generously interpreted) of the financially weaker party. In RHM v V,ES aka B,ES [2019] HKFC 279, the Court adopted a checklist of s when considering the facts of each case. It is not binding on the Court but is helpful to practitioners and the Court when dealing with cases of such nature. </s>

<s>[INST] Is Divorce Based On fault In Hong Kong? [/INST] It depends. In Hong Kong, you can file for divorce under the following grounds Adultery Unreasonable Behaviour One Year Separation with consent of the other party Two Year Separation without consent Desertion by your spouse for at least a period of one year Joint Application </s>

<s>[INST] Can the custodial parent move to another state/country without the other parent’s consent? [/INST] The custodial parent cannot permanently remove the children to another country without the other parent’s consent. The leaving parent should apply to Court for an order to permanently remove the children from Hong Kong. In the event that the children and that parent have already left Hong Kong, the parent has to apply for retrospective approval from the Court for them to remain in another country. </s>

<s>[INST] What should I do if I want to relocate with my children to another country permanently during or after the divorce proceedings? [/INST] If you wish to relocate with your children permanently during or after the divorce proceedings, you should seek consent from the other parent. If he or she does not consent to the intended relocation, you will have to make an application to the Court for permission to remove the children out of the jurisdiction of Hong Kong permanently. In determining such an application, the Court will decide whether it is in the best interests of the child to be permanently relocated to another country. </s>

<s>[INST] Can I attend mediation instead of going through the court system? [/INST] Yes, if you and your spouse agree, you can attend mediation instead of seeking the assistance of the Family Court for outstanding issues. The whole purpose of mediation is to avoid emotionally and financially draining litigation and thus find a workable solution. It is important to note that mediation is not marriage counseling and a separate psychological professional would be needed for such purpose. Mediation can be conducted by way of individual and/or joint sessions. If you or your spouse enlist the representation of a solicitor, your solicitor can assist you in the mediation process as well. Depending on the complexity of the outstanding issues, mediation sessions can take as little as a day and can extend to an intermittent period of several months. Mediation is confidential which the mediator will explain at the outset. Mediation is also cost-effective compared to litigation and a more civilised option to resolve outstanding issues. </s>

<s>[INST] . What can we do if there are unforeseeable changes in financial circumstances? [/INST] 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 reuire 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. </s>

<s>[INST] Do any other adults have a say in relation to the arrangements for the children, e.g. step-parents or grandparents or siblings? What methods of dispute resolution are available to resolve disputes relating to children? [/INST] Save for a child’s parents, no other adults shall automatically have rights of custody to the child unless they are appointed as the child’s legal guardian. Notwithstanding, a surviving parent’s rights of custody prevails over a legal guardian even if he/she was appointed by a deceased parent. As part of the Judiciary’s attempt to handle children disputes arising out of divorce proceedings, the CDR process came into effect in 2012. At the CDR hearing, the Judge will act as a facilitator of negotiations in order to assist the parties in their settlement discussions but unlike FDR, anything said in a CDR hearing does not constitute without prejudice discussion. Parties can also consider other dispute resolution processes out of court, such as mediation and collaborative practice. </s>

<s>[INST] Will Assets Be Split 50/50? [/INST] In Hong Kong, assets are split 50/50 which is the starting point for a division of assets in a divorce </s>