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<s>[INST] How does the court deal with custody in divorce? [/INST] In Hong Kong, children issues are broken down into three areas custody, care and control and access. 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 makes little difference because 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. In Hong Kong, the Family Court is likely to grant to you and the other parent “joint” custody, meaning the two of you will be able to make joint decision relating to the children on major issues such as country of residence, education, religion and health. Care and control 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. The Family Court however has made orders where parents have shared care and control, which is similar to many of the orders provided by courts in international jurisdictions. In cases where one parent has care and control, then there will be an order for reasonable access. This is the amount of time the non-custodial parent will have access to the children, whether it be by agreement between the parties or by an order of the Court. When making orders relating to the children, the Family Court will look to the best interests of the children (“the Welfare Principle”). The relevant factors may include the following a. Preservation of status uo b. Age, sex and background of the parents and children c. Personality, capability and character of the parents d. Financial resources of the parents e. Physical and mental health of the parents and the children f. Accommodation for the Children g. The children’s wishes/views h. Benefit of keeping the siblings together with one parent i. The religion and culture of the family j. Professional reports k. Suffering/risk of suffering of the children including any history of family violence l. Any other fact or circumstances that the Family Court thinks are relevant As a principle, it is always best when you and your ex-spouse can agree on a parenting plan, whether it is agreed upon between the two of you or through the assistance of a mediator. Litigation involving the children can become uite costly. Conflict over the children will also result in the Family Court ordering a Social Welfare Report prior to making any orders related to the children and this is stressful not only for you and also your ex-spouse but also upon the children. </s>

<s>[INST] How long do I have to be married to claim alimony in Hong Kong? [/INST] A In Hong Kong, there is no specific time reuirement for claiming alimony, but the court considers the length of the marriage and other factors when making decisions. </s>

<s>[INST] Is the concept of “trusts” recognised in your jurisdiction? If so, how? [/INST] The concept of “trusts” is recognised in Hong Kong. The law governing trusts in Hong Kong is mainly set out in the Trustee Ordinance (Cap. 29). Very often, trusts are set up under foreign laws in Hong Kong and they are also recognised in Hong Kong by virtue of the Recognition of Trusts Ordinance (Cap. 76), which incorporates law in relation to trusts in the Hague Convention into Hong Kong law. Article 6 of the Hague Convention states that a trust is governed by the law chosen by the settlor and that the interests of beneficiaries are protected under the Trustee Ordinance, which contains provisions in relation to certain pos and duties of the trustee if the terms are silent in the trust. There is also a growing trend of dynastic family trust arrangements being challenged by a spouse of a settlor on the basis of it being a “nuptial settlement”. There is not yet a decided case on this topic in Hong Kong. </s>

<s>[INST] Can a child or adult make a financial claim directly against their parents? If so, what factors will the court take into account? [/INST] Under the law, a child below the age of 18 does not have the capacity to initiate or participate in proceedings and they can only do so through the appointment of a guardian ad litem. The role of a guardian ad litem is to represent the child and his/her interests. In general, a parent’s financial obligations towards their child cease once the child turns 18 years old unless he/she is still financially dependent on the parent such that (i) he/she is or will be receiving instruction at an educational establishment or undergoing training for a trade, profession or vocation; or (ii) there are special circumstances that justify the making of the order or provision. In such circumstances, a child who has attained the age of 18 can issue a financial claim against his/her parent directly. The factors that will be considered by the Court are those set out under 5.2 above. Explain what rights of custody both parents have in your jurisdiction whether (a) married, or (b) unmarried. Married parents have eual rights of custody, which should be shared between the parties in a marriage. In unmarried situations, the mother will automatically have the same rights as a married mother under Section 3(1)(c) GMO. The father, however, will have to make an application to Court under Section 3(1)(d) GMO to reuest for the same legal rights as a married father. </s>

<s>[INST] Are separation and/or nullity proceedings available in your jurisdiction? What reuirements and restrictions apply in this regard? [/INST] Separation Either spouse can petition for a judicial separation by filing the petition with the Family Court and thereafter serving it on the other spouse. For the court to grant a judicial separation, the petitioning spouse must rely on at least one of the five facts in support of divorce listed in 2 above. The court will not look for an irretrievable breakdown and will grant the final decree of judicial separation as long as any of the five facts is proven. The final decree of judicial separation does not bar the parties from subseuently petitioning/applying for a divorce. Nullity Either spouse can petition for a decree of nullity on any of the following grounds (Section 20 of the Matrimonial Causes Ordinance) The marriage is not a valid marriage under Section 27 of the Marriage Ordinance; The marriage is invalid under the law of Hong Kong; At the time of the marriage, either party was already lawfully married; or The parties are not respectively male and female. </s>

<s>[INST] What regime applies to the international abduction of children in your jurisdiction? [/INST] The Child Abduction and Custody Ordinance (Cap 512) in Hong Kong adopts the provisions in the Hague Convention on the Civil Aspects of International Child Abduction to protect children from wrongful removal from Hong Kong; and establish a set of procedures to ensure the prompt return of children to their habitual residence between signatories to the convention. Hong Kong a signatory to the Hague Convention. If a child has been abducted to a jurisdiction which is not covered under the Hague Convention, other methods will need to be used for the return of the child, which might reuire the parent to issue proceedings in the country to which the child has been abducted for a return order in relation to the child. </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>

<s>[INST] What specific considerations and concerns should be borne in mind in relation to pre- and postnuptial agreements where the parties have international connections (eg, in terms of the location of assets, domicile/habitual residence or future pl)? [/INST] In order for the court to give more weight to the agreement, the parties should provide full financial disclosure at the time of entering into the agreement. It thus follows that the parties should disclose assets both in Hong Kong and abroad (if any). Before they decide on where to enter into the pre- or postnuptial agreement, the parties should consider where they intend to spend their marriage, which will most likely be the jurisdiction in which they would apply for divorce. This jurisdiction should be the one in which they enter into the agreement. If divorce proceedings are taking place concurrently in Hong Kong and in another jurisdiction, the doctrine of forum non conveniens may be invoked. The court will then determine which jurisdiction is the more natural and appropriate forum in which to commence divorce proceedings and execute the nuptial agreements. The application of this principle is summarised in 2.2. If the divorce is taking place in Hong Kong and a pre or postnuptial agreement has been entered into in another jurisdiction, the court might ask for expert evidence from that jurisdiction regarding the validity of the agreement. Do the regimes discussed in this have eual application to same-sex couples? If not, please highlight the differences in treatment. Hong Kong only recognises the marriage of one man and one woman. Civil partnerships and same-sex unions are not recognised in Hong Kong. </s>

<s>[INST] How long can spousal maintenance orders last and are such orders commonplace? [/INST] Spousal maintenance orders are common in Hong Kong. As explained in 2.1 above, spousal maintenance, i.e. periodical payments, cannot take effect until after the granting of Decree Absolute. An order for MPS may be obtained prior to the final divorce decree being made. A spousal maintenance order will terminate upon the death of either party or the remarriage of the payee, whichever is earlier, unless there is an agreement between the parties that the maintenance shall be made as a lump sum by way of monthly instalments. Spousal maintenance may increase or decrease depending on the circumstances of the case. Accordingly, it may be dismissed in cases where the Court deems appropriate. </s>

<s>[INST] What orders can the court make in relation to spousal and child maintenance on divorce or judicial separation and how are the relevant amounts calculated? [/INST] The court may make a periodical payments order and/or a secured periodical payments order reuiring one party to the marriage to provide ongoing financial provisions to the other party and/or the children. Pending resolution of the ancillary relief matters between the parties, the court may also grant maintenance pending suit; and interim maintenance orders on financial provisions for the party in need and the children. In determining the level of maintenance and the financial orders to be made, the court will take into account the conduct of the parties; and all circumstances of the case, including the factors (which are not exhaustive) set out in Sections 7(1) and (2) of the Matrimonial Proceedings and Property Ordinance (MPPO) – that is the income, earning capacity, property and other financial resources which each of the parties to the marriage has or is likely to have in the foreseeable future; the financial needs, obligations and responsibilities which each of the parties to the marriage has or is likely to have in the foreseeable future; the standard of living enjoyed by the family before the breakdown of the marriage; the age of each party to the marriage and the duration of the marriage; any physical or mental disability of either party to the marriage; the contributions made by each party to the welfare of the family, including any contribution made by looking after the home or caring for the family; in the case of proceedings for divorce or nullity of marriage, the value to either party to the marriage of any benefit (eg, a pension) which, by reason of the dissolution or annulment of the marriage, that party will lose the chance of acuiring; the financial needs of the child; the income, earning capacity (if any), property and other financial resources of the child; any physical or mental disability of the child; and the manner in which the child was being and in which the parties to the marriage expected the child to be educated. </s>

<s>[INST] What kind of financial relief orders could the Court make in the divorce proceedings? [/INST] The Court has po to make various orders for financial relief, for example, orders for periodical payments for spousal maintenance and/or children’s maintenance, lump sum payments, and the trfer or sale of property. After a petition for divorce has been filed, upon an application is made, the Court can also make orders for maintenance pending suit to be paid to the applicant or interim maintenance for the children of the family for financial support during the time that the divorce proceedings are ongoing. </s>

<s>[INST] What is the duration of children orders (up to the age of 16 or 18 or otherwise)? [/INST] Section 19 MPPO stipulates that the Court may make orders for custody and education of children who are under the age of 18. There is no express definition of minors in the GMO, but a “minor” is defined under Section 3 IGCO as “a person who has not attained the age of 18 years”. Children orders under Section 10(1) GMO shall therefore apply to children below the age of 18 years. </s>

<s>[INST] Are Same-Sex Marriages Legal In Hong Kong? [/INST] No, same-sex marriages are not recognized under Hong Kong law. Only heterosexual marriages are valid in Hong Kong meaning one party is male and the other party is female. </s>

<s>[INST] How do I start the divorce proceedings and how long does it take for me to get a divorce? [/INST] To commence the divorce proceedings, you have to file a petition for divorce or file a joint application with your spouse with the Family Court Registry. If the petition is undefended, meaning there is no dispute as to the reason for divorce, you can then apply for a Decree Nisi. Six weeks after the Decree Nisi is granted, you can apply for it to be made absolute, i.e. Decree Absolute. If you and your spouse agree on the divorce suit, children’s arrangements and financial arrangements (the 3 elements to be resolved in a divorce), it will normally take about 7-8 months to get the final divorce order (Decree Absolute) to conclude the divorce proceedings. Depending on the amount of contested issues in a particular case, a contested divorce proceedings can take over a year or more. </s>

<s>[INST] . What Are the Rights Of Unmarried Fathers In Hong Kong? [/INST] Many people do not understand that in Hong Kong, unmarried fathers do not have parental rights in Hong Kong. If the mother decides to relocate with the kids, the father can try for a return order in the local jurisdiction, but he cannot invoke the Hague Convention. Unmarried Fathers should apply for a Section 3 Declaration to obtain rights similar to married couples. </s>

<s>[INST] What are the conseuences of failing to pay child maintenance in Hong Kong? [/INST] Failure to pay child maintenance in Hong Kong can result in legal action, including garnishment of wages, seizure of assets, and even imprisonment. The court takes non-payment seriously to ensure the welfare of the child. </s>

<s>[INST] What general principles apply to the division of assets? What specific factors will the court consider in deciding which orders to make in this regard? [/INST] In ancillary relief proceedings, the court will undertake an inuiry into all the circumstances of the case, having regard to the factors set out in Section 7 of MPPO (see 6.2(a)). In LKW v DD [2010] 6 HKC 528, the Court of Final Appeal established that this inuiry is undertaken having regard to the "underpinning principles" in White v White [2001] 1 AC 596 – namely the objective of fairness; the rejection of discrimination; the yardstick of eual division; and the rejection of ‘minute retrospective investigation'. If the parties have only limited financial resources, the court will focus on dividing the assets of the parties fairly so as to make provision to satisfy the needs of the parties and the children, including their housing and financial needs, if any. With regard to the available assets beyond satisfying the parties' financial needs, the starting point is a more or less eual division. The ultimate goal is to achieve reasonableness and fairness in the distribution of the couple's assets, not necessarily a strict 50/50 division. In particular, the court will consider all circumstances not only the financial contribution of the parties, but also other circumstances – including a party's non-financial contribution to the family and the household – will be taken into consideration and given sufficient weight as appropriate. </s>

<s>[INST] What general principles apply to custody and access arrangements? What specific factors will the court consider in deciding which orders to make in this regard? [/INST] In all matters regarding children, the general principle to be considered by the court is the best interests of the child, as set out in Section 3 of the Guardihip of Minors Ordinance (GMO). Under normal circumstances, the court will usually grant an order for joint custody, as the prevailing view is that it is in the best interests of a child to have both parents cooperating and jointly making decisions on matters which are important to his or her upbringing, such as choice of schools, religion and medical decisions. Care and control of a child can be sole or shared. If one parent has sole care and control of the child, the other parent will be granted access to the child – that is, he or she will be able to visit the child or even have overnight access to stay with the child. When making orders, the most important thing that the court will consider is what is in the best interests of the child. Various factors will be taken into account by the court in making orders regarding custody, care and control or access, including the financial resources that each party has; the accommodation which will be available to the child; the status uo; whether the parties and child have any mental or physical health issues; the character and competence of each party; the child's views and wishes (if the court thinks that the child is old enough to express his or her views); and the views of social welfare workers or professionals given in professional reports and so on. </s>

<s>[INST] Are foreign divorces and religious divorces recognised in your jurisdiction? What reuirements and restrictions apply in this regard? [/INST] An overseas divorce will be recognised in Hong Kong if, on the date on which the divorce proceedings in the foreign country commenced, either party was habitually resident in that country; or a national of that country (Section 56(1) of the Matrimonial Causes Ordinance). However, the foreign divorce may not be recognised as valid if the divorce was obtained by one spouse; and the other spouse either was not notified of the divorce proceedings; or was notified of the proceedings but was not given an opportunity to participate in them. The divorce will also be refused if its recognition would be manifestly contrary to public policy. Religious divorce is not recognised in Hong Kong. </s>

<s>[INST] At what age are children considered adults by the court? [/INST] “Adult” is defined as “a person who has attained the age of 18 years” under Section 3 of the Interpretation and General Clauses Ordinance (Cap. 1) (“IGCO”). </s>

<s>[INST] What are the formal and procedural reuirements to enter into a valid pre- or postnuptial agreement and what reuirements and restrictions apply to the content of pre- and postnuptial agreements? [/INST] Aside from the underlying principles set out in 4.1, the court in SPH v SA endorsed the guiding principles laid down in Radmacher v Grantino when determining the weight to be attached to a nuptial agreement. Essentially, more weight will be given to the agreement where the parties understood the terms and thus made an informed decision; the parties received independent legal advice; the parties e not under undue influence or duress when entering into the agreement; the parties provided full and frank financial disclosure; and the parties did not exploit their dominance. The agreement must also not be unjust; be in writing; be signed and dated by both parties; and be executed before a witness. </s>

<s>[INST] Which bodies are responsible for enforcing the applicable laws and regulations in your jurisdiction? What pos do they have? What is the general approach of these bodies in enforcing the applicable laws and regulations? [/INST] The different law enforcement agencies, including the Hong Kong Police Force; the Customs and Excise Department; the Independent Commission Against Corruption; the Hong Kong Correctional Services Department; and the Immigration Department. Each of these has po conferred on it by the respective legislation. The Department of Justice also plays an important role in terms of law enforcement by initiating prosecutions in criminal matters. The Hong Kong judiciary (ie, the court system) also plays a very important role in the administration of justice by hearing all criminal matters and civil disputes; and ensuring that justice has been served in accordance with the law. In international child abduction cases, the secretary for justice is designated as the central authority of the Hong Kong SAR to discharge the relevant functions under the Hague Convention on the Civil Aspects of International Child Abduction. The International Law Division of the Department of Justice is authorised to act on behalf of the secretary for justice in providing international assistance in the return of abducted children and the exercise of rights of access to children. </s>

<s>[INST] Are unmarried parents treated in the same way as married parents when the court makes orders on separation or divorce? [/INST] MPPO and the GMO have similar provisions, but one significant difference is that for children born out of wedlock, the unmarried father must apply to Court for custodial rights of the children while a married father is not reuired to do so. In the absence of such order, the unmarried father has no rights or authority in respect of the child. </s>

<s>[INST] Are marital agreements (pre- and post-marriage) enforceable? Is the position the same if the agreement is a foreign agreement? [/INST] There is no automatic recognition of nuptial agreements in Hong Kong, but the Court is very likely to give significant weight to such agreements where it is fair to do so. Following the English case of Radmacher v Granatino [2011] 1 AC 534, the Supreme Court gave clear guidance on how to deal with both pre- and postnuptial agreements, stipulating that “the Court should give effect to a nuptial agreement that is freely entered into by each party with full appreciation of its implication unless in the circumstances prevailing it would not be fair to hold the parties to their agreement”. The principles enunciated in Radmacher e endorsed by the Court of Final Appeal in SPH v SA [2014] 3 HKLRD 497 and are now regarded as the applicable law in Hong Kong. The Court will give full weight to the agreement if each party entered into it out of his/her own free will, without undue influence or pressure, having all the information material to his/her decision to enter into the agreement and intending that it should be effective to govern the financial conseuences of the marriage in the event of its demise. The Court also held that the same principles should be applied to both pre- and postnuptial agreements. In LCYP v JEK [2019] HKCFI 1588, the Court stated that reasonableness is the standard for assessing the financially dependent party’s needs in an unvitiated prenuptial agreement and that it will consider all the circumstances of the case in order to arrive at a fair result. The Court held that it shall have regard to an unvitiated prenuptial agreement where it is not unfair to do so. A foreign agreement is generally recognised in the same way as an agreement made in Hong Kong, but the foreign element of the agreement could be evidence that may affect the weight of the foreign agreement, particularly if it reflects the parties’ intention regarding the enforceability of such agreement. The Judge has discretionary po to reuire a party to show cause as to why the parties should not be bound to a pre- or postnuptial agreement and why it should not rule the outcome of an ancillary relief claim. In the event that a party does not wish to be bound by the prenuptial agreement, an application pursuant to Crossley v Crossley [2008] EWCA Civ 1491 [2008] Fam Law 395 will need to be taken for this dispute to be tried as a preliminary issue. In L v F [2023] HKFC 108, the Court having found that the husband had failed to show cause as to why he should not be bound by the prenuptial agreement, it was held that the agreement should be of magnetic importance, and significant weight should be attached to it when considering the husband’s ancillary relief applications. </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] Can divorce proceedings be stayed if there are proceedings in another country? [/INST] Yes, it is well established in Hong Kong that the general principles of forum non conveniens apply to the stay of matrimonial proceedings. The Court of Final Appeal in SPH v SA [2014] HKFLR 286 adopted the principles laid down by the English Courts in the leading authority of Spiliada Maritime Corporation v Culex Limited [1987] 1 AC 460 in which the Court held that when there are competing jurisdictions, the single to be asked is which forum is more suitable for the interests of all parties. For an application to stay proceedings in Hong Kong, it must be shown that (i) Hong Kong is not the natural or appropriate forum, i.e. Hong Kong does not have the most real and substantial connection with the action; and (ii) there is another available forum that is clearly or distinctly more appropriate than Hong Kong. If the party resisting the stay proceedings is able to show that he/she will be deprived of a legitimate personal or juridical advantage if the action is tried in a forum other than Hong Kong, the Court will have to balance the advantages and disadvantages of the alternative forum. </s>

<s>[INST] Are there any differences in terms of the protection offered in a domestic violence situation between married and unmarried couples and their children? [/INST] Both married and unmarried couples and their children can seek injunctive relief under the DCRVO. If unmarried couples reside or previously resided together, they ualify as cohabitants or former cohabitants and can seek the court orders mentioned in pursuant to Section 3B of the DCRVO. </s>

<s>[INST] Does your jurisdiction allow separation or nullity proceedings? [/INST] Yes, there are provisions allowing both judicial separation and nullity proceedings in Hong Kong. Judicial separation proceedings are set out in Section 24 MCO, which provides that an application may be presented to Court by either party on the basis of one or more of the five grounds for divorce, but the Court shall not be concerned with whether the marriage has broken down irretrievably. Similar to divorce proceedings, a decree of judicial separation will be granted subject to a Section 18 declaration in relation to arrangements for the welfare of the children of the family. Nullity proceedings are provided in Section 19 MCO under which the Court may order that a marriage is null and void or voidable. Marriages declared null and void are those that are not valid from the beginning of the marriage and are regarded by law as never having taken place due to the status of the parties, such as underage, prohibited degree of kindred and affinity of the parties to the marriage. If the marriage is declared null, i.e. invalid, each party will be free to remarry as if a divorce had been granted. It is normally not necessary to apply for a decree for nullity based on void marriage except for in associated financial or custody orders, which the Court has the same po to make as it does in divorce and judicial separation proceedings. On the other hand, voidable marriages are valid and subsisting until declared void by a decree of nullity. A list of circumstances rendering a marriage voidable can be found in Section 19 MCO. Nullity proceedings are not subject to the one-year rule and may be brought by either party to the marriage even if they have been married for less than one year. The jurisdictional reuirement in 1.1 above will still need to be satisfied. </s>

<s>[INST] What specific considerations and concerns should be borne in mind in relation to child support where the parties have international connections? [/INST] The parent claiming for child maintenance may consider asking for a secured periodical payment or a lump-sum payment. The parent should also seek a mirror order in the foreign court in the country in where the payor resides, so that the maintenance order can be enforced in that foreign jurisdiction. Whether the receiving party can enforce a child maintenance order made in Hong Kong in an overseas jurisdiction will depend on whether there is a mirror order in place; or there are any laws or treaties that provide for reciprocal enforcement between Hong Kong and the foreign jurisdiction. This is primarily governed by the Maintenance Orders (Reciprocal Enforcement) Ordinance, which sets out a list of reciprocating countries with established procedures to facilitate the recovery of maintenance between Hong Kong and the reciprocating country. </s>

<s>[INST] What are the grounds of jurisdiction for divorce proceedings? For example, residence, nationality, domicile, etc.? [/INST] In Hong Kong, the Court’s jurisdiction for divorce proceedings, whether by way of petition for divorce or joint application, is not restricted by the nationality of the parties to a marriage or their place of marriage. Provided that the marriage was validly constituted in the country where it was celebrated together with evidence to prove its validity, the Family Court of Hong Kong shall have jurisdiction for divorce proceedings as long as one of the parties to the marriage satisfies one of the following three reuirements set out in Section 3 of the Matrimonial Causes Ordinance (Cap. 179) (“MCO”) either of the parties to the marriage was domiciled in Hong Kong at the date of the petition or application; either of the parties to the marriage was habitually resident in Hong Kong throughout the period of three years immediately preceding the date of the petition or application; or either of the parties to the marriage had a substantial connection with Hong Kong at the date of the petition or application. Domicile In the context of matrimonial proceedings, domicile is not determined by one’s country of birth but rather by one’s intention of where he/she considers to be his/her permanent home. The recent Court of Appeal case Z, SN (aka K, SN) v K, VSF [2019] HKFLR 373 confirmed that to establish domicile under Section 5(2) of the Domicile Ordinance (Cap. 596), a party must satisfy the Court that (i) a party was present in Hong Kong; and (ii) he/she intended to make Hong Kong his/her home for an indefinite period. The Court in Y v W (Domicile) [2011] HKFLR 482 established a list of factors as guidance in determining an individual’s intention of whether to make a permanent home in a particular place, including length of residence; condition of residence, e.g. purchased property, leased property, furnished lodgings or hotels; marriage with a local partner; whereabouts of the family; business interest; whereabouts of personal belongings; whereabouts of the person’s property and investments; the fact of naturalisation; decision made as to the nationality of the children; education of the children; memberships of clubs or religious associations; place of work; and relation between a man and his family. Habitual residence The of habitual residence is straightforward and could be established if a party to a marriage meets the statutory reuirement of staying in Hong Kong for three years prior to the issuance of the divorce application. The purpose of the relevant parties’ stay in Hong Kong is irrelevant, although there should be a sufficient degree of continuity to be properly described as settled. Unlike domicile, one may have habitual residence in two places at the same time (Ikimi v Ikimi (Divorce Habitual Residence) [2002] Fam 72). Substantial connection Traditionally, disputes in relation to “substantial connection” mainly concerned divorcing couples of the foreign expatriate community who are in Hong Kong due to business obligations. In recent years, there has been increasing discussion on this topic involving Hong Kong and Mainland Chinese families who have homes or businesses in both places. The legal principle in this area is well established. As a starting point, the Court in S v S [2006] 3 HKLRD 751 identified a two-stage process whereby the Court should determine (i) whether the party concerned has a connection with Hong Kong; and (ii) whether that connection is a substantial one. A party’s substantial connection is a of fact and the Court must have regard to all the circumstances of each case. In RI v SSH [2011] HKFLR 318, the Court of Appeal listed factors to be taken into account in determining whether a substantial connection is established, such as (i) where the parties’ matrimonial home is located; (ii) their past pattern of life; (iii) whether they regard Hong Kong as their home for the time being even if their lifestyle may indicate that they may not stay rooted in one place for a substantial period of time; (iv) the place of employment of the parties and whether the parties treat Hong Kong as their base if they have to work overseas; and (v) where the children are schooled and whether they spend their vacations in Hong Kong if they are studying abroad. That said, the determination of “substantial connection” is a fact-sensitive exercise. The Court of Appeal in ZJW v SY [2017] HKFLR 612 held that there can be no exhaustive list of factors and the Court will give the factors such weight as is appropriate in the overall circumstances of the case. In ZC v CN [2014] HKFLR 469, despite the parties being married in Hong Kong and the husband having acuired permanent residence status in Hong Kong with the wife holding a Hong Kong identity card (though not a permanent resident), substantial connection was not established as the Court held that a party’s residence status was only one factor to be considered. Overall, the Court was of the view that the parties conducted their matrimonial life in Mainland China and the wife’s physical presence in Hong Kong was only tritory. The Court also put little weight on the husband’s business connection and assets in Hong Kong. The Court adopted a similar approach in PH v DL [2021] HKFC 166. In contrast, in the more recent case of J v CLH [2022] 2 HKLRD 632, the Court of Appeal held that as a result of the husband’s substantial business connections and dealings in Hong Kong, including freuent travel to Hong Kong for business and finance meetings, substantial connection was established. In this case, neither parties nor their children lived in or maintained a regular residence in Hong Kong. </s>

<s>[INST] When Can I Get Re-Married? [/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 the resolution of the financial and children issues which must be approved by the Family Court. To avoid an arduous and long drawn-out process, there is incentive for divorcing couples to mediate. </s>

<s>[INST] How does the court decide what financial orders to make? What factors are taken into account? [/INST] Section 7 MPPO provides a list of factors that the Court must consider when deciding what financial orders to make the income, earning capacity, property and other financial resources that each of the parties to the marriage has or is likely to have in the foreseeable future; the financial needs, obligations and responsibilities that each of the parties to the marriage has or is likely to have in the foreseeable future; the standard of living enjoyed by the family before the breakdown of the marriage; the age of each party to the marriage and the duration of the marriage; any physical or mental disability of either of the parties to the marriage; the contributions made by each of the parties to the welfare of the family, including any contribution made by looking after the home or caring for the family; and in the case of proceedings for divorce or nullity of marriage, the value to either of the parties to the marriage of any benefit (for example, a pension) that, by reason of the dissolution or annulment of the marriage, that party will lose the chance of acuiring. The above list is non-exhaustive and the Court will have regard to all circumstances of the case in determining the appropriate financial order. In 2010, adopting the factors listed above, the Court of Final Appeal in LKW v DD [2010] HKCFA 70 laid down a clear guideline on the four principles and five steps for determination of marital financial claims. The four principles are The objective of fairness – the result must be fair and just. The rejection of discrimination – the husband and wife hold eual status even if they had different roles in the family during the marriage. The yardstick of euality – the Court’s starting point should be to split the matrimonial assets eually and only depart from this if there is good reason. The rejection of minute retrospective investigations into conduct and why the marriage failed, or who made the bigger contribution to the marriage. The five steps are to Identify the assets, liabilities, income, and expenses of each party as of the date of the hearing. Assess the parties’ financial needs. Decide whether to apply the 50/50 sharing principle. Consider whether there is good reason for departing from the 50/50 eual division. Decide the outcome – how to distribute the marital assets of the parties. In most cases, parties only have limited assets sufficient to cover their financial and housing needs. If there is no surplus of assets after satisfying the parties’ financial needs, the Court is not reuired to proceed with steps 3 and 4, and the Court would make financial orders based on each party’s needs. It is only in big money cases, where there are remaining surplus funds from the marital assets after the parties’ financial needs are met, that the Court will be reuired to consider steps 3 and 4 before reaching a decision on the distribution of assets. </s>

<s>[INST] How is child custody determined in Hong Kong? [/INST] Child custody in Hong Kong is determined based on the best interests of the child. The court considers factors such as the child's age, health, emotional ties with each parent, the parent's ability to provide for the child's needs, and any history of family violence. </s>

<s>[INST] I want to move and take my children out of Hong Kong. Can I do that and what is the procedure to remove the children from Hong Kong? [/INST] If you want to take the children out of Hong Kong, whether temporarily (e.g. For holidays) you will need consent from the other parent. Generally speaking, a Consent Summons and Order can be drafted outlining the dates you will be removing the children from the jurisdiction of Hong Kong. In this Consent Summons and Order, you will need to undertake that you will return the children back to Hong Kong after the end of the holidays. If you want to take the children out of Hong Kong and move to another jurisdiction permanently, you will reuire consent from the other parent. If the other parent does not consent to the removal of the children (temporarily or permanently), you will need to speak to your legal representative and make an application to remove the child/children from the jurisdiction of Hong Kong. To remove the children out of the jurisdiction of Hong Kong without consent or proper order the courts will view this as wrongful removal and child abduction. </s>

<s>[INST] How would the Court deal with children matters? [/INST] The Court will make orders relating to the custody, care and control and access of the children in the divorce proceedings. The parent who has custody of a child will have the right to make major decisions such as his/ her education, medical decisions and choice of religion. The parent who has care and control of the child is responsible for the daily care of the child and making routine day-to-day decisions for the child. The parent who does not have care and control will have access to the child and spend time with the child on a regular basis. </s>

<s>[INST] What legal remedies are available to victims of domestic violence in terms of home occupation? [/INST] Victims of domestic violence can apply for occupation orders under the Family Law Act 1996. These orders can regulate who lives in the family home and can exclude the abuser from the home, providing the victim with a safe living environment​​. </s>

<s>[INST] In practice, how rare is it for the custodial parent to be allowed to relocate internationally/interstate? [/INST] Ultimately, it will depend on the facts of each case, and the Court will consider whether the proposed relocation is in the best interests of the child. In BA v BL [2019] 4 HKLRD 23, the Court held that there is no presumption in favour of or against a primary or non-primary carer applicant and the reason why a parent applies for relocation will be one of the factors to be considered in the overall assessment on whether it is in the best interests of the child, which will be assessed on a case-by-case basis. Examples of successful relocation cases in Hong Kong involve expatriates wishing to return to their own country whereby it was shown that better care arrangements, such as a closer family network, could be provided for the child. </s>

<s>[INST] Can I get a divorce in Hong Kong even though I did not get married here? [/INST] You can apply for divorce in Hong Kong provided that your marriage is validly constituted in the country where the marriage took place and one of the following conditions is satisfied Either of the parties to the marriage was domiciled in Hong Kong on the date of the petition or application (Domicile me a place where you live in and you have the intention to permanently stay) Either of the parties to the marriage was habitually resident in Hong Kong throughout the period of 3 years immediately preceding the date of the petition or application Either of the parties to the marriage had a substantial connection with Hong Kong on the date of the petition or application. </s>

<s>[INST] What about surrogacy agreements. Is this possible in Hong Kong? [/INST] In Hong Kong, overseas surrogacy agreements are not enforceable and Hong Kong commercial surrogacy agreements are illegal. It is regulated by the Parent and Child Ordinance. Surrogacy is rare in Hong Kong but it is an option for married couples overseas and returning to Hong Kong under strict rules and guidelines imposed. Once a baby is born, the parents will need to apply for a parental order so long as certain conditions are met including but not limited to domicile, habitual residence and substantial connection of the parents with Hong Kong. There are also certain conditions that surrogate mother herself will need to meet including being over the age of 21 years old. If you are considering surrogacy, it is important to consult with a ualified professional familiar with the laws of Hong Kong to ensure that no illegal activity is committed, including activity committed inside or outside of Hong Kong. </s>

<s>[INST] Do Hong Kong Courts Give Preferential Treatment To Women Over Men? [/INST] Not necessarily. This is simply a stereotype. The Hong Kong Family Court will look at various factors and will weigh all factors before making a decision when it comes to children. Each case is different and specific to each matter. </s>

<s>[INST] What factors does the court consider when making orders in relation to children? [/INST] When making orders in relation to children, the Court shall have regard to the best interests of the minor as the first and paramount consideration. This applies to all children, whether born within (Section 48C MCO) or out of wedlock (Section 3 GMO). The Court will also consider a list of factors (which is not intended to be exhaustive), often referred to as the “welfare checklist” the ascertainable wishes and feelings of the child concerned (considered in the light of his/her age and understanding); the child’s physical, emotional and educational needs; the nature of the child’s relationship with each parent and other persons; the likely effect on the child of any change in his/her circumstances; the child’s age, sex, background and any characteristics of the child that the Court considers relevant; the attitude to the child and to the responsibilities of parenthood demonstrated by each of the child’s parents; any harm the child has suffered or is at risk of suffering; any family violence involving the child or a member of the child’s family; how capable each parent, and any other person in relation to whom the Court considers the relevant, is of meeting the child’s needs; the practical difficulty and expense of a child having contact with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis; the range of pos available to the Court in the proceedings in ; and any other fact or circumstance that the Court thinks is relevant. Examples of factors that the Court will consider when making children orders include but are not limited to Social Welfare Reports; the views of the child (depending on his/her age and level of understanding); the child’s physical, emotional and educational needs; the child’s age, maturity, sex, social and cultural background; the parents’ relationship with the child and capability of each parent; and whether there is any family violence. </s>

<s>[INST] What is a clean break order? [/INST] A clean break order terminates financial obligations between divorced spouses, allowing both parties to move on without ongoing financial ties. </s>

<s>[INST] How would the family assets be divided? Would a party be automatically entitled to 50% of the total family assets? [/INST] Generally, the Court will adopt the 50-50 sharing of matrimonial assets as a starting point. However, the Court will consider whether there are good reasons for departing in either direction from the 50-50 eual division. In this regard, relevant factors include the needs of the parties, financial resources of the parties, source of the assets, the duration of the marriage and the party’s contribution to the welfare of the family, and other factors. </s>

<s>[INST] What are the reuirements for effective service of the divorce papers on the other party in your jurisdiction and how can the papers be served on the opposing party if he or she lives overseas? [/INST] Petitioners can serve divorce petitions out of Hong Kong without leave on an opposing party living overseas. However, service must comply with the law of that foreign jurisdiction (Order 11 rule 5(3)(a), Rules of District Court). </s>

<s>[INST] . How can we best protect our children, emotionally, from any arguments that can arise during the separation? [/INST] Avoid bad-mouthing the other parent. This is very important as children will feel torn in a loyalty conflict. Kids nowadays are adaptable and can deal with their parents' separation, but what they struggle with is their parents' conflict. Keep the conflict out of their eyes and ears and focus on what is best for your kids. </s>

<s>[INST] Are trusts recognised in your jurisdiction? How are they treated on divorce or judicial separation? [/INST] Trusts are recognised in Hong Kong and will be considered by the court in the determination of the parties' ancillary relief claims; and the assessment of the available financial assets and me for the parties. While it is generally accepted that the assets that are subject to a trust no longer belong to the settlor and rather belong to the beneficiaries of the trust, the family court is in a position to set aside or vary a trust and/or settlement under specific circumstances after considering all factors, such as the po given to one of the parties over the trust. This will depend on factors such as the type and nature of the trust; and how and when the trust was created and set up. </s>

<s>[INST] How much will it cost to obtain a divorce? [/INST] The cost of your divorce will depend on how complicated it becomes and whether you and your spouse can agree on outstanding issues. Divorce becomes increasingly costly if you and your spouse cannot agree on certain issues and reuire the ongoing assistance of solicitors and barristers to resolve these issues. The most cost-effective way to resolve your Divorce is through mediation or through mutual agreement between you and your spouse on key issues. </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. CustodyCustody 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] Is the family home treated differently compared to other family assets on divorce or judicial separation? If so, how? [/INST] It is very likely that the family home, having been the primary residence of the parties during the marriage, will be regarded as part of the parties' matrimonial assets. Even if it is legally held by one party to the marriage, it is generally accepted that the other party will have a 50% interest in the family home; and the court may order that the home be sold and the proceeds be split between the parties. However, the court will consider all circumstances regarding the purchase or similar of the property in order to make an order which is fair. </s>

<s>[INST] What are the legal principles governing disputes on competing jurisdictions and what are the determining factors for the court when considering such disputes? [/INST] Hong Kong has adopted the principles set out in Spiliada Maritime Corp v Culex Ltd [1987] AC 460, as confirmed by the Court of Appeal in DGC v SLC nee C [2008] HKLFR 160, regarding the application for a stay of Hong Kong proceedings in favour of a foreign jurisdiction. The more recent case of SPH v SA [2014] HKFLR 286 explored the factors for the court to consider when deciding such disputes. First, it is for the applicant to prove that Hong Kong is not the natural or appropriate forum with the most real and substantial connection to the divorce proceedings; and the competing jurisdiction is clearly or distinctly more appropriate than Hong Kong. If the applicant can establish the above, the party in favour of Hong Kong must show that he or she would be deprived of a legitimate personal or juridical advantage if the action e tried in a forum other than Hong Kong. It is then for the court to balance the advantages for the matter to be heard in the competing jurisdiction against the disadvantages that may be suffered by the other party. </s>

<s>[INST] If a couple agrees on financial matters, do they need to have a court order and attend court? [/INST] Parties to divorce proceedings should obtain formal court orders on all agreements made to protect their own interests. An agreement not made into a court order is not enforceable by the Court. Even in cases where there are no assets involved, it is prudent to document in the court order that both parties agree to dismiss their respective claims against each other in full and final settlement of financial matters. Further, the final divorce decree will usually not be issued unless the Court is satisfied that all issues, including financial matters, are resolved. Agreements on financial matters should be documented and submitted to Court by way of Consent Summons, which is a joint application signed by both parties for a court order. The Court usually deals with Consent Summons applications by way of paper disposal. In some cases, the Court may have further comments and/or reuisitions in relation to the terms of the Consent Summons, and the parties may be reuired to attend a court hearing. </s>

<s>[INST] What reuirements and restrictions apply to the removal of a child from the jurisdiction, both temporarily and permanently? What factors will the court consider in deciding on such a reuest? [/INST] The court's approval to remove a child from the jurisdiction is reuired if the parties are going through a divorce and cannot agree with each other on matters relating to the child. If a parent would like to remove a child from Hong Kong (either temporarily or permanently) and the other parent agrees to this, their agreement can be recorded and confirmed by signing a consent summons with the court. The party that wishes to remove the child must also sign and file an undertaking that he or she will bring the child back to Hong Kong after a trip (for temporary removal); or when reuested to do so by the court (for permanent removal). If the parties cannot reach an agreement, the party that wishes to remove the child from the jurisdiction must take out an application by way of summons to seek leave from the court for such removal. For permanent removal, a relocation application must be made by way of summons and a supporting affirmation. The other party will usually be directed to file an affirmation in opposition. A trial will take place for the court to hear the parties' evidence and submissions. The Hong Kong courts have adopted the position set out in the landmark case of Payne v Payne [2001] EWCA Civ 166. When hearing such application, the court will generally consider the following factors (this list is non-exhaustive) whether the application is genuine; whether the relocation plan of the applicant is realistic (eg, arrangements on accommodation, schooling, employment for the relocating parent); the basis of the other party's objections; the financial resources of the relocating parent; the non-relocating parent's access to the child upon relocation; the impact on the applicant if leave e not granted; and the child's best interests and welfare. </s>

<s>[INST] What is the procedure and timescale for a divorce? [/INST] After a divorce application is issued, the Petitioner should serve a sealed copy of the petition and the relevant court documents on the Respondent, and the Respondent will have eight days from the date of service of the petition (including the date of service) to file his/her Form 4 indicating his/her intention of whether to defend the divorce application. If the Respondent does not contest the divorce or if the Form 4 is not filed within the prescribed time limit, the Petitioner can file an Application for Directions for Trial supported by an affidavit to set the matter in the Special Procedure List for a Decree Nisi. Once the Registrar is satisfied that the documents are in order and that the petition has been served on the Respondent, the Registrar will give directions on the date, place and time of the hearing of the pronouncement of Decree Nisi and notify all parties. A Decree Absolute can be applied for six weeks after the pronouncement of Decree Nisi, and the Decree Absolute is the final court order formally dissolving the marriage. The Registrar will issue a Certificate of Decree Absolute to each party. If issues on children and finances are not settled by the time of the pronouncement of Decree Nisi, the Court will adjourn the outstanding matters to a later date. The Decree Nisi will not be made absolute in cases where there are children to the marriage until the Court declares that it is satisfied with the arrangements made for them. If the Respondent wishes to defend the divorce, he/she should indicate such intention in the Form 4, which can be filed at any time before directions for trial are given, notwithstanding that the time limit for giving the notice has expired. The Respondent has eight days from date of receipt of the Petition to file the Form 4 and must file an within 21 days thereafter to the Petitioner. If the Respondent is outside of Hong Kong, the time for filing the Form 4 and is extended to 21 days and 42 days, respectively. A Respondent may choose to file a cross-petition if he/she agrees to divorce but disputes the facts alleged in the Petition. The Petitioner will have 14 days after receipt of the to file a Reply, but if he/she does not, it shall be deemed that every material allegation of fact made in the is denied. In cases where the contains countercharges, the Petitioner may contest those charges in the Reply. Upon the filing of an , the divorce application will be set down in the Defended List. The Court will give directions and the case may be set down for trial during which both parties may be subject to cross-examination to determine whether there is sufficient evidence to establish that the marriage has irretrievably broken down. Trials on disputed divorce are rare as parties are often advised to amend the Petition to a “non-fault” base of one or two years’ separation as the matter proceeds even when such fact is not applicable when the divorce application was issued. The Court may impose an adverse costs order on a party who unreasonably defends the petition or insists on proceeding with a “fault”-based ground even though he/she succeeds in obtaining divorce on such ground. Can a divorce be finalised without resolving other associated matters? For example, children and finances. Although a Decree Absolute could be applied for six weeks after the pronouncement of Decree Nisi, the Court will not grant a Decree Absolute unless a Section 18 declaration under the Matrimonial Proceedings and Property Ordinance (Cap. 192) (“MPPO”) is made. The Court will make a Section 18 declaration if it is satisfied that arrangements for the welfare of the children of the family have been made and are satisfactory or the arrangements are the best that can be devised in the circumstances. Generally speaking, a Decree Nisi will not be made absolute until children matters and children-related financial issues are fully resolved. However, in R, LH (also known as J, LH) v J, MS [2020] HKFLR 683, the Court recognised that in some circumstances, it is possible for the Court to accept an undertaking from a parent to provide financial support for a child in the future and grant a Section 18 declaration, notwithstanding that the parties have yet to reach a final resolution on ancillary relief. Further, a Decree Absolute will not be made (i) pending the outcome of an appeal against the Decree Nisi; or (ii) when an application by the Respondent has been brought under Section 17A MCO for the Court to consider his/her financial position after the divorce where the petition was brought on the grounds of one-year separation with consent or two years’ separation. Under normal circumstances, the Petitioner could apply for the Decree Nisi to be made absolute after six weeks if ancillary relief is the only matter outstanding between the parties. If the Petitioner fails to apply for the Decree Nisi to be made absolute within three months from the earliest date on which such an application (i.e. after six weeks) could have been made, the Respondent can make an application by way of Summons pursuant to Rule 65(4) of the Matrimonial Causes Rules (Cap. 179A) (“MCR”). There may be circumstances whereby a Petitioner may oppose a Decree Absolute being granted for fear of severe financial prejudice if the Decree Absolute is granted before the ancillary relief orders e effected. In the leading case of JAH v VH [2013] HKFLR 664, the Court held that the test to oppose the grant of Decree Absolute is to establish special or exceptional circumstances for the Court to refuse the grant. In the case of financial prejudice, it must be proved that the prejudice is real. The above issue was visited by the Court recently in MD v M [2022] HKFC 33 whereby the Court shared the Petitioner wife’s concern that granting the Decree Absolute will cause the Respondent husband to lose the incentive to participate in the ancillary relief as he was seeking to remarry. The Court was of the view that ramifications for the wife in the event of the Respondent husband’s demise would be far-reaching and held that a Decree Absolute should not be granted. </s>

<s>[INST] Are Same-Sex Marriages Legal In Hong Kong? [/INST] No, same-sex marriages are not recognized under Hong Kong law. Only heterosexual marriages are valid in Hong Kong meaning one party is male and the other party is female. </s>

<s>[INST] Can the custodial parent move to another part of the state/country without the other parent’s consent? [/INST] Hong Kong is part of China under the One Country, Two Systems regime and its legal system is very different to that of Mainland China. If a custodial parent wants to relocate to Mainland China with his/her child, the custodial parent will still reuire the consent of the other party. If no consent has been obtained, the leaving parent will have to apply to Court for a relocation order. In the event that a parent unilaterally removes a child from Hong Kong, the Court has a wide discretion to make (i) a return order; (ii) an order directing the child to be delivered to the party seeking return; and (iii) a custody order together with a delivery order (Lai v Ling [2017] 5 HKLRD 629). </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] In the case of an uncontested divorce, do the parties need to attend court and is it possible to have a “private” divorce, i.e. without any court involvement? [/INST] In the case of an uncontested divorce, the Respondent can indicate that he/she has no intention to defend the divorce in the Form 4 as mentioned in 1.2 above. The matter will be placed in the Special Procedure List and fast-tracked. Joint applications also come under the Special Procedure List. The Registrar will consider the evidence filed to prove the contents of the petition and joint application. Once satisfied that the documents are in order, the Registrar will issue a Certificate of Registrar to set the case down in the Special Procedure List. An open hearing will be fixed to pronounce the Decree Nisi (a tentative court order) dissolving the marriage, and the parties’ attendance is not reuired. It is not possible to obtain a “private” divorce in Hong Kong as a marriage must be dissolved by the Court with the issuance of a Decree Absolute. </s>

<s>[INST] Which bilateral or multinational instruments have application in this regard in your jurisdiction? [/INST] In the context of matrimonial law, the relevant bilateral and multinational instruments applicable to the Hong Kong legal system are as follows the Hague Convention on the Civil Aspects of International Child Abduction, which seeks to protect children from being wrongfully removed or retained from their place of habitual residence. The Child Abduction and Custody Ordinance (Cap 512); was enacted to implement the Convention in the Hong Kong Special Administrative Region (SAR) in 1997; the Convention on the Rights of the Child; the Hague Convention on the Recognition of Divorces and Legal Separations; the Hague Convention on Protection of Children and Co-operation in Respect of Intercountry Adoption, which was given effect by the implementation of the Adoption Ordinance (Cap 290); and the Mainland Judgments in Matrimonial and Family Cases (Reciprocal Recognition and Enforcement) Ordinance (Cap 639) and Rules, which came into operation in 2022, establishing mechanisms for the registration of specified orders in mainland judgments in matrimonial cases; the recognition of mainland divorce certificates; and applications for a certified copy of and certificate for Hong Kong judgments in matrimonial cases. </s>

<s>[INST] If the court is making a decision on relocation of a child abroad, what factors are taken into account? [/INST] The paramount consideration is whether the relocation is in the best interests of the child. When determining which of the available options is best for the child, the Court’s paramount consideration will always be the welfare of the child. The Court will be assisted by the “welfare checklist” as set out in 6.5 above and “Payne Guidance” to assess the best interests of the child, but these guidelines do not dictate the outcome of the case. In SMM v TWM (Child Relocation) [2010] 4 HKLRD 37, the Court of Appeal applied the principles in the leading English case of Payne v Payne [2001] EWCA Civ 166. When considering a relocation application, the Court will consider (i) whether the relocation application is genuine and not motivated by a selfish desire to exclude the other parent in the child’s life; (ii) if genuine, whether the application is realistic and the proposals are practical and well researched; and (iii) whether the Respondent parent’s opposition is motivated by genuine concern for the future of the child’s welfare. The Court will also consider the impact of the relocation on both the applicant parent and the resisting “left behind” parent as well as the reasonable proposals of the applicant parent. As the decision to relocate a child is significant, the proposals of the applicant parent will be scrutinised, and the Court needs to be satisfied that there is a genuine motivation for the move and that it is not intended to alienate the other parent or end contact between them. The ability and opportunity for contact between the child and the parent left behind are also very significant. Nevertheless, the Court should give weight to the recommendations in Social Investigation Reports. Although it is not bound by the reports, the Court shall not depart from them without a sufficient and cogent basis. The Court may call for an International Social Investigation Report in respect of the child’s intended school, residence, general environment and care support of the child in the new country. </s>

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

<s>[INST] What Is A Postnuptial Agreement? [/INST] A Postnuptial Agreement is an agreement reached between you and your spouse during the marriage. The difference between a Prenuptial Agreement and a Postnuptial Agreement is when the agreement is prepared and signed. A Postnuptial Agreement is an agreement reached during the marriage, while a Prenuptial Agreement is an agreement reached prior to a marriage. Similar to prenuptial agreements, postnuptial agreements are not binding in Hong Kong. However like prenuptial agreements, the Family Court may take the terms of the postnuptial agreement into consideration when ruling. </s>

<s>[INST] Can same-sex couples get married in Hong Kong? [/INST] As of now, same-sex marriage is not legally recognized in Hong Kong. However, there have been ongoing discussions and legal challenges regarding this issue. </s>

<s>[INST] Do matrimonial regimes exist and do they need to be addressed by the court on divorce? Is there a default matrimonial regime? [/INST] No, Hong Kong adopts the English common law system and does not have a matrimonial regime. </s>

<s>[INST] What factors does the court consider when determining child maintenance? [/INST] The court's primary consideration is the welfare of the children. Other factors include the financial resources and needs of both parents, the children's financial needs, resources, and earning capacities, as well as any disabilities the children may have​​. </s>

<s>[INST] Are unmarried couples/same-sex couples entitled to the same claims as married couples in relation to children? Are legitimate and illegitimate children treated identically by the court in your jurisdiction? [/INST] Unmarried couples can refer to the GMO for their rights and authority in relation to their child. The mother of an illegitimate child has the same rights and authority as a married mother; whereas the father of an illegitimate child will need to make an application for a declaration under Section 3 of the GMO, such that he will have some or all of the rights and authority that he would have as a married father. While same-sex marriage and civil partnerships are not currently recognised by Hong Kong law, the Court of First Instance in AA v BB [2021] HKCFI 1401 ruled that same-sex partners can enjoy parental rights over their children. The non-biological parent of a child born by a former same-sex partner should be granted guardihip rights, joint custody and shared care over his or her children. </s>

<s>[INST] . How do we handle custody if a child, or children, say they only want to spend time with one parent? [/INST] Try to understand why this is an issue. You need to investigate and get to the real cause. Is this a result of manipulation (alienation)? Or, is it a general fear of the other parent? The best way to address this is to involve a child psychologist to get to the root of the issue regarding the resistance to seeing one parent. If it is a case of manipulation, the advice is to stop - be careful of what is being said in front of the child. It's important to always put your child's best interests at the forefront of your mind. Parents can then work with a child psychologist to ease the relationship using tools and techniues to address the root issue at play. Also, the parents should work to make sure the child saying NO does indeed follow through with the planned schedule. </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] What specific considerations and concerns should be borne in mind in relation to ADR of family matters in your jurisdiction? [/INST] Mediation Family mediation may not be suitable for all family disputes and reuires an intake interview to assess suitability. Legal advice can be sought at any stage and both parties have the right to terminate the mediation at any time. Agreements made in mediation are not legally binding but can be made into a court order after seeking legal advice. Although mediation is not mandatory in family disputes, the court will encourage the parties to attempt mediation to resolve their differences. Parties who unreasonably refuse mediation might be subject to cost conseuences. Collaborative practice Lawyers and parties in collaborative practice are focused on reaching a settlement; and if a settlement cannot be reached, the collaborative lawyers cannot represent the parties in any subseuent litigation. That said, collaborative practice has a high success rate, with an estimated 90% of disputes settling when this process is used. PFA PFA applies only to financial disputes and does not affect proceedings of any matrimonial cause (eg, divorce, nullity, judicial separation). Once PFA is adopted, the court will not try the issue on financial matters. Both parties must agree to avail of the PFA process; jointly appoint an adjudicator; and agree to be bound by the adjudicator's decision, which must be approved by the Family Court. There are very limited situations in which the decision can be challenged, such as in case of an error in law. Parties participating in PFA must sign a PFA agreement setting out the key terms for approval by the court, including the following whether the parties have attended family mediation or an FDR hearing; the scope of the issues to be dealt with during the PFA process; a joint application by the parties for the court's approval for the appointment of a private adjudicator and the commencement of PFA once the agreement has been signed. Court proceedings between the parties will also be stayed pending the PFA; the parties' agreement to be bound by the adjudicator's decision, which will be deemed final unless the court exercises its overriding discretion as to whether and under what terms to make the order embodying the decision; and a PFA report and a consent summons setting out the terms of the adjudicator's decision, in accordance with which the parties will dispose of their matrimonial assets. </s>

<s>[INST] Can I claim a share of my spouse's inheritance if we are getting a divorce in Hong Kong? [/INST] A In Hong Kong, inheritance is generally considered a non-matrimonial asset and may not be subject to division in a divorce, but the court may consider it in certain circumstances. </s>

<s>[INST] What Is A Postnuptial Agreement? [/INST] A Postnuptial Agreement is an agreement reached between you and your spouse during the marriage. The difference between a Prenuptial Agreement and a Postnuptial Agreement is when the agreement is prepared and signed. A Postnuptial Agreement is an agreement reached during the marriage, while a Prenuptial Agreement is an agreement reached prior to a marriage. Similar to prenuptial agreements, postnuptial agreements are not binding in Hong Kong. However like prenuptial agreements, the Family Court may take the terms of the postnuptial agreement into consideration when ruling. </s>

<s>[INST] When do spousal and child maintenance expire? [/INST] Ongoing spousal maintenance orders can last until the death of either party or the remarriage of the payee, pursuant to Section 9 of the MPPO. For child maintenance, the court can order periodical payments, secured periodical payments and lump-sum payments for the benefit of the child until the child reaches the age of 18 or completes full-time education, pursuant to Section 10 of the MPPO. The court may also order that the maintenance extend beyond this date if there are special circumstances which justify the extension, such as the child being disabled. </s>

<s>[INST] How is the matrimonial home treated on divorce? [/INST] Following the leading English authorities of Miller v Miller and McFarlane v McFarlane [2006] 2 AC 618, the Hong Kong Court recognises that a matrimonial home has a special status in divorce proceedings as it is devoted to family use and usually has a central place in the marriage. Accordingly, the general position is that even if a matrimonial home was brought into the marriage at the outset by one of the parties, it is considered matrimonial property irrespective of whether it is registered in the name of just one party, which, in principle, is subject to eual division however long or short the marriage may have been. </s>

<s>[INST] What is considered a legal and valid marriage in your jurisdiction? [/INST] Conditions for a legal and valid marriage A marriage must be a voluntary union for life of one man with one woman to the exclusion of all others. Both parties must be at least 16 years old. If either party is between 16 and 20 years of age, he or she needs written consent from a parent or guardian; or an order of the court, if the former are unavailable. The parties cannot be of kindred or affinity. Registration of marriage To legally marry in Hong Kong, the Marriage Ordinance reuires that a notice of intention to marry be submitted to the registrar of marriage in the prescribed form. After receiving the notice, the marriage registrar will display the notice of the intended marriage at the office of the marriage registrar. The registrar will then issue a certificate of marriage at the reuest of either party of the intended marriage 15 days after receiving the notice but not more than three months from the date. If the parties do not get married within three months of submitting the notice of intended marriage, the submitted notice of intended marriage will automatically become invalid. Marriage ceremony A marriage celebration must take place at a marriage registry by a registrar of marriage; in a licensed place of worship by a competent minister; or at any other place in Hong Kong by a civil celebrant of marriages. Defective marriage A marriage that does not comply with the forms stipulated above may not be invalid. However, the marriage will be null and void if both parties in its celebration "knowingly and wilfully acuiesce" in the following The marriage was not celebrated by the registrar in the office of the registrar; a competent minister in a licensed place of worship; or a civil celebrant; The marriage was celebrated under a false name; or No notice of intention to marry was submitted. </s>

<s>[INST] What about division of assets? What is the court’s position, is it generally a 50/50 split of assets? [/INST] The Court of Final Appeal has ruled that a wife is entitled to half of the assets when they divorce in Hong Kong (LKW v DD (2010) 13 HKCFAR 537) In addition to the split of assets, a wife may also be entitled to periodic maintenance. In some cases, however, the Family Court may consider to order a “clean break” meaning the termination of financial dependency on one party against the other and distribution made in a lump sum (sometimes in installments). This is usually appropriate when there are sufficient resources to result in a clean break, meaning there is sufficient capital to pay such a lump sum payment. </s>

<s>[INST] Are pre- and postnuptial agreements recognised in your jurisdiction? Does this depend on whether the agreement was entered into in the jurisdiction? [/INST] Previously, pre-nuptial agreements e unenforceable in Hong Kong courts. However, SPH v SA [2014] 17 HKCFAR 364 marked a change in the law. In this case, the Hong Kong Court of Final Appeal followed the principles laid down by the English Supreme Court in Radmacher v Granatino [2011] AC 534 and confirmed that a pre-nuptial agreement should be given decisive weight if each party entered into the agreement of his or her own free will, without undue influence or pressure; possessed all the information material to his or her decision to enter into the agreement; and intended that it should be effective to govern the financial conseuences of the marriage in case of a divorce. There should also be no circumstances rendering it unfair to hold the parties to the agreement. As regards postnuptial agreements, the Court of Appeal in L v C [2007] 3HKLRD 819 held that the old rule that agreements providing for future separation are contrary to public policy is now obsolete. The court agreed with the UK Supreme Court that such agreements should not be restricted to separation agreements. Whether pre and postnuptial agreements will be recognised in Hong Kong depends not on whether the agreement was entered into in Hong Kong, but on the factors mentioned above, as well as all relevant circumstances. </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] For how long is a parent reuired to pay child maintenance or provide financial support for their children? For example, can a child seek maintenance during university? [/INST] Generally speaking, child maintenance should be paid for a child until he/she reaches the age of 18 or completes tertiary education. Under Section 10(1) MPPO and Section 12A(1) GMO, financial provisions for children both within and outside of marriage shall not extend beyond the date on which the child attains the age of 18. However, Section 10(3) MPPO and Section 12A(3) GMO provide exceptions for these financial orders to extend beyond the date on which the child reaches 18. For children born within marriage, Section 10(3) MPPO specifies that the Court can make an order in favour of a child who has attained the age of 18 or extend beyond the date on which the child attains the age of 18 if it appears to the Court that (i) the child is or will be receiving instruction at an educational establishment or undergoing training for a trade, profession or vocation, whether or not that child is or will be in gainful employment; or (ii) there are special circumstances that justify the making of the order or provision (such as medical or developmental problems). Although Section 12A(3) GMO contains similar provisions, it does not explicitly state that the Court shall have the po to make financial provisions for a child who has attained the age of 18. Whether the Court has the po to make an order for children who have attained the age of 18 in GMO cases remains unclear. A typical financial order will last until the child attains the age of 18 or completes full-time or tertiary education, whichever is later. </s>

<s>[INST] What are the grounds for divorce in Hong Kong? [/INST] The grounds for divorce in Hong Kong include adultery, unreasonable behavior, desertion for a continuous period of at least one year, separation for at least one year with consent, or separation for at least two years. </s>

<s>[INST] What are the main enforcement methods to ensure compliance with child support awards? What are the typical conseuences of breach? [/INST] There are several ways in which the payee can enforce a maintenance order. One of them is to issue a judgment summons against the payor parent in default. There will usually be further rounds of disclosure in which the payor parent's financial me will be examined; and the court will determine whether there has been a deliberate breach of the child maintenance order. The court may then grant an order for the payor parent to pay the payee parent the outstanding amount owed together with interest; and even sentence the payor parent to prison if he or she is found to be in contempt of court. In order to prevent the payor parent from leaving Hong Kong pending recovery of the maintenance, the payee parent may also apply to the court for a prohibition order prohibiting the payor from leaving Hong Kong to assist in the collection of outstanding maintenance payments before the debt is repaid. In addition, if the court is satisfied that the payor parent will not make payments for child support in full or on time, the court may grant an order for the payor's income to be paid directly from the payor's employer to the payee parent to satisfy the whole or part of the amount payable under the maintenance order. </s>

<s>[INST] How does your jurisdiction deal with abduction cases? For example, is your jurisdiction a party to the Hague Convention? [/INST] Hong Kong is a party to the Hague Convention, which was brought into effect by the Child Abduction and Custody Ordinance (Cap. 512) enacted in 1997. It applies between the contracting states of the Schedule to the Child Abduction and Custody (Parties to Convention) Order (Cap. 512A) and Hong Kong, which ceases to apply when the child attains the age of 16. Any person, institution or other body can apply for assistance in returning the child if his/her removal or retention is wrongful, i.e. (i) it is in breach of rights of custody attributed to a person, an institution or any other body either jointly or alone, under the law of the contracting state in which the child was habitually resident immediately before the removal or retention; and (ii) at the time of removal or retention, those rights e actually exercised, either jointly or alone, or would have been so exercised but for the removal or retention. </s>

<s>[INST] . Do You Need To Be Physically Present To Get A Divorce? [/INST] Either one of you must meet one of 3 reuirements to get a divorce in Hong Kong. 1. Habitual Resident In Hong Kong - prove that you have lived here for a minimum of 3 years. 2. Substantial Connection With Hong Kong - Businesses, children are studying, property, etc. 3. Domiciled In Hong Kong - Permanent Resident and Intention To Stay In Hong Kong permanently. If you are not physically in Hong Kong, the divorce process can still run but you will need to file through a Hong Kong lawyer. </s>

<s>[INST] . What if we feel the maintenance a parent is suggesting is too low? [/INST] If mediation is not working, there are steps during the court proceedings which include an FDR Hearing. You must have documentary support for your historical expense as justification, so it's important to get all this in order if you feel this is an issue. </s>

<s>[INST] What are the grounds for divorce in your jurisdiction? How do the parties prove these grounds? [/INST] The only ground for petitioning for divorce is that the marriage has broken down irretrievably. To prove this, at least one of the facts stipulated in Section 11A of the Matrimonial Causes Ordinance must be satisfied, as follows The respondent has committed adultery and the petitioner finds it intolerable to live with him or her as a result; The respondent has behaved in a manner that me the petitioner cannot reasonably be expected to live with him or her (usually, this involves a series of misconduct or intolerable behaviour, but a single incident of grave misconduct will suffice); The parties to the marriage have lived apart continuously for at least one year immediately before filing the petition and the respondent consents to the divorce (according to Section 11C of the Matrimonial Causes Ordinance, a husband and wife are not living apart if they are living in the same household); The parties to the marriage have lived apart continuously for at least two years immediately before filing the petition, in which case the respondent does not have to consent to the divorce; or The respondent has deserted the petitioner for at least one year immediately before filing the petition. Applications for ancillary relief – such as maintenance, trfer of property or division of matrimonial assets – should be included in the petition. If there are children, the petitioner must include in the petition his or her proposal as to their custody and access. In case of a joint application for divorce, the spouses must prove at least one of the following conditions to the court The parties to the marriage have lived apart continuously for at least one year immediately before making the application; or A written notice (Form 2E) signed by both parties of their intention to apply to the court to dissolve their marriage was given to the court at least one year prior to making the application and was not subseuently withdrawn. </s>

<s>[INST] What is the principle of the welfare checklist in the Children Act 1989? [/INST] The welfare checklist includes factors such as the child's wishes and feelings, physical and emotional needs, the effect of any change, and any harm the child has suffered or is at risk of suffering. </s>

<s>[INST] Which main sources of laws and regulations govern matrimonial and family law matters – including, but not limited to, divorce, judicial separation, children's matters and financial matters arising from the breakdown of marriage – in your jurisdiction? [/INST] Hong Kong has a common law legal system which was developed under the British governance. The main sources of law in Hong Kong governing matrimonial and family law matters are the Guardihip of Minors Ordinance (Cap 13); the Separation and Maintenance Orders Ordinance (Cap 16); the Matrimonial Causes Ordinance (Cap 179); the Matrimonial Proceedings and Property Ordinance (Cap 192) (MPPO); the Marriage Ordinance (Cap 181); the Married Persons Status Ordinance (Cap 182); and the Maintenance Orders (Reciprocal Enforcement) Ordinance (Cap 188) (MOO). </s>

<s>[INST] Does the court have inherent jurisdiction to make a child a ward of court? [/INST] Yes, a child who is under 18 and who is present or habitually resident in Hong Kong can be made a ward of the court if the court finds that this would be in the best interests of the child. Wardship proceedings can be initiated by the parents or carer of the child; the Social Welfare Department; or a judge. Once a child has been made a ward of court, all parental responsibilities, duties and authorities are vested in the court; therefore, all important decisions relating to the child will reuire the consent of the court. </s>

<s>[INST] What legal provisions exist for financial relief for spouses during a marriage? [/INST] Financial relief for spouses during a marriage is governed by the Matrimonial Causes Act 1973 and the Domestic Proceedings and Magistrates' Courts Act 1978. These laws provide the framework for maintenance and financial support, ensuring that the financially weaker spouse can seek necessary support during the marriage​​. </s>

<s>[INST] Are religious marriages, foreign marriages or customary marriages recognised in your jurisdiction? What reuirements and restrictions apply in this regard? [/INST] In general, religious or customary marriage is not recognised in Hong Kong, except for customary marriages celebrated before 7 October 1971 which are declared to be valid by Section 7 of the Marriage Reform Ordinance (Cap 178). Only a marriage fulfilling the statutory reuirements will be recognised. For a foreign marriage to be recognised in Hong Kong, it must be both essentially and formally valid. Essential validity reuires that both partners have the capacity to marry and have consented to the marriage in accordance with the law of their domicile. Additionally, both parties must consent to the marriage and be at least 16 years old. Neither party can be in an existing marriage or be closely related. Formal validity me that the marriage was performed in accordance with the law of the country where it was celebrated. Failure to comply with the formalities of marriage applicable there will result in the marriage being deemed null and void. </s>

<s>[INST] . What is A Mirror Order? [/INST] Registering a foreign order in a different jurisdiction. This is how you can protect yourself if moving to a new country after the divorce is made in Hong Kong, in case you need to enforce the order. </s>

<s>[INST] I am married and would like a postnuptial agreement. Is this something you can prepare for me? [/INST] Yes, we can prepare a postnuptial agreement. A postnuptial agreement is an agreement reached between you and your spouse during the marriage. A postnuptial agreement will outline the rights and obligations of both you and your spouse in the unlikely event of a divorce. The difference between a prenuptial agreement and a postnuptial agreement is when the agreement is prepared and signed. A postnuptial agreement is an agreement reached during the marriage, while a prenuptial agreement is an agreement reached prior to a marriage. Similar to prenuptial agreements, postnuptial agreements are not binding in Hong Kong. However, like prenuptial agreements, the Family Court may take the terms of the postnuptial agreement into consideration when ruling. Similar to prenuptial agreements, the postnuptial agreement should be understood by each party, each party will have provided full and frank financial disclosure, there was no duress or exploitation and each party will have received independent legal advice. </s>

<s>[INST] What financial orders can a cohabitant obtain? [/INST] As mentioned in 4.1 above, a cohabitant does not have any statutory right to obtain a financial order for oneself in the matrimonial context. However, where a child is born out of the relationship, the parent who has care and control of the child may apply for financial orders for the benefit of the child, including a carer’s allowance. A carer’s allowance can only be claimed as part of the maintenance for the child and is paid as compensation to the caring parent who has to give up work or is unable to work as a result of taking care of the child. The amount of such allowance should cover the reasonable financial needs of the carer but it is not intended to and should not be a generous amount that would allow the carer to make savings from the allowance. The leading authority is WGL v ASB (Child maintenance under the GMO) [2013] FLR 391, which adopted the leading English authority of Re P (Child Financial Provision) [2003] 2 FLR 865. </s>

<s>[INST] Does the court in your jurisdiction take the lead to facilitate financial settlement through court processes (eg, through a financial dispute resolution hearing)? [/INST] Yes. There is a court process called ‘financial dispute resolution' (FDR) in which a judge helps the parties to reach a financial settlement, which takes place before the matter is set down for trial. In an FDR hearing, the judge considers the financial documents – including all settlement offers made by the parties – and acts as a facilitator, assisting the parties in the settlement negotiations by offering his or her insights and indications in relation to the likely outcome of the case (eg, maintenance level, division of matrimonial assets) if he or she e the trial judge. </s>

<s>[INST] If a married couple ended up in divorce, how would the court divide up their interests in the matrimonial property? [/INST] This is a complicated issue. When a married couple undergoes a divorce, the division of their matrimonial property does not necessarily follow from their respective contributions towards the purchase price of the property. The po of the court in this regard is governed by the Matrimonial Proceedings and Property Ordinance . Generally speaking, the court would take into consideration the conduct of the parties and all the circumstances of the case, such as the financial resources, financial needs and age of each of the parties, the contribution of each party to the welfare of the family, the standard of living enjoyed by the family before the breakdown of the marriage, and the duration of the marriage. The ultimate goal is to achieve fairness in the distribution of the couple’s assets, which is not necessarily a strict 50/50 division. </s>

<s>[INST] How does the court approach pre-nuptial agreements in divorce proceedings? [/INST] The court considers pre-nuptial agreements as a significant factor under the Matrimonial Causes Act 1973 section 25(2)(g). While not automatically binding, such agreements are given considerable weight, especially if both parties received independent legal advice and the agreement does not unfairly disadvantage any children of the marriage​​. </s>

<s>[INST] How long does it take to get a divorce in Hong Kong? [/INST] The time it takes to get a divorce in Hong Kong can vary, but generally, an uncontested divorce can take about 4 to 6 months. Contested divorces may take longer, depending on the complexity of the case and court schedules. </s>

<s>[INST] What kinds of experts will the court engage to assist it in deciding on what is best for the children (eg, designed social workers, clinical psychologists)? [/INST] The court may reuest reports from social investigation officers (from the Social Welfare Department) and/or clinical psychologists to investigate the relationship between the child and his or her parents; interview relevant parties and the child; and make recommendations on what would be best for the child.\ </s>

<s>[INST] Can the courts make financial orders in relation to a foreign divorce? What reuirements and restrictions apply in this regard and who can apply for such orders? [/INST] The Hong Kong courts can make financial orders in relation to a foreign divorce, including to order financial relief for an ex-spouse whose marriage has been dissolved or annulled outside of Hong Kong, as governed by Part IIA of the MPPO. The party seeking financial relief must first satisfy the court that there are substantial grounds for the intended application and thus obtain leave from the court to proceed. The jurisdictional basis for the court to consider an application for financial relief is similar to its jurisdiction in divorce proceedings in Hong Kong – for example, if it appears to the court that the applicant or any child of the family is in immediate need of financial assistance, the court may make interim maintenance orders. The Mainland Judgments in Matrimonial and Family Cases (Reciprocal Recognition and Enforcement) Ordinance (Cap 639) also sets out the rules and jurisdiction of the Hong Kong courts to enforce financial orders under specific categories from the mainland. </s>

<s>[INST] Does the child support regime vary depending on whether the parents' relationship was formalised (eg, marriage/civil partnership/co-habitation)? [/INST] No, ultimately the court will prioritise the best interests and the welfare of the child and consider all circumstances. </s>

<s>[INST] 3. My husband and I have both paid for the purchase price of our home. The flat is registered in my name only. Is my husband an owner of the flat as well? If so, how would our shares of the flat be worked out? [/INST] If you and your husband have contributed towards the purchase price of the flat, both of you are co-owners of the flat. Even though your husband is not a registered legal owner, he would be a beneficial owner of the flat. As to how your shares of the flat are worked out, it would depend on the respective contributions of you and your husband towards the purchase price. If both of you have contributed eually towards the purchase price, both of you are presumed to own the flat eually as “joint tenants”. Joint tenants are subject to the “right of survivorship”, which stipulates that upon the death of an owner, his/her interest will automatically pass to and shared eually by the surviving owners. On the other hand, if the contributions of you and your husband are uneual, then it is presumed that both of you own the flat as “tenants in common”, with each owning a share proportionate to the amount of your contributions. For example, if your husband has contributed one-third and you two-thirds of the purchase price, your husband and you will own respectively one-third and two-thirds of the flat as tenants in common. Tenants in common are not subject to the “right of survivorship”, and the interest of any owner who dies will pass under his/her will (or under the law of intestacy, if the owner dies without a will). The presumptions of “joint tenants” and “tenants in common” can be rebutted by evidence that you and your husband intended to hold as joint tenants despite uneual contributions, or that both of you intended to own as tenants in common despite eual contributions. </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>