Articles

Divorce and Family Law

Divorce and Family Law

By Registered Foreign Lawyer, Caroline Choi

Entertainment journalists are not lacking for work, as juicy gossip about celebrity breakups continue to make headlines across the globe. Last year's most surprising split being the divorce of mega superstars, Brad Pitt and Angelina Jolie. There have been numerous reports about what caused this picture-perfect relationship to sour, including allegations of misconduct against the children and abuse of alcohol and drugs. Since initial news broke of the split, Brad Pitt and Angelina Jolie have made great strides by keeping details of the divorce under wraps and agreeing on a settlement.  More recently, there is even talk of a possible reconciliation!

In case of Brad and Angelina, what we do know is that when Angelina Jolie initiated the divorce proceedings and her Petition for Dissolution requested “sole physical custody” of the couple’s six children. This is a significant detail because California laws (and most other states across America) encourage “joint custody” of children. An individual who requests sole physical custody for one reason or another usually makes this request because of concerns about the other parent’s ability to care for the children.

While we may never know Angelina Jolie’s real reasons for requesting sole physical custody, the important point is that California law, like most states in the U.S., encourage joint legal and physical custody of children. However, not all jurisdictions across the globe follow these same standards. As a California attorney, now practicing as a Registered Foreign Lawyer (California, USA) in Hong Kong, I have discussed the differing child custody laws between California and Hong Kong with Stephen J. Peaker, head of the Family Law Department at Oldham, Li & Nie (OLN) and a fellow of the International Academy of Family Lawyers (IAFL). To begin, let’s take a look at what joint legal and physical custody means in California and why it’s so important for the health of families of divorce:

1. California Favors Joint Legal and Physical Custody: Joint legal custody means both parents agree to share in the rights and responsibilities to make decisions relating to the health, education and welfare of a child. Joint physical custody means both parents agree to equally share in the physical care of a child. California law encourages divorcing parents to share responsibilities in both the legal and physical custody of a child because parents who share this responsibility are ultimately working towards the “best interests” of a child. The ultimate goal is to ensure the health and success of the child. Many other countries, including England, Scotland, Australia and New Zealand encourage this model of joint parental responsibility and as family law practitioners, it is our hope that other countries will follow this model. Co-parenting, while difficult at times, encourages healthy relationships when a family unit is broken.

2. Legal Custody, Physical Custody & Control In Hong Kong: In Hong Kong, parents are usually given joint legal custody, but with physical care and control to one parent and with reasonable access to the other parent. This is currently done without reference to joint parental responsibility, which fails to encourage separated parents to act collaboratively in the best interests of the child. When joint custody, care and control is given to one parent, too much authority is given to one individual which can sometimes result in the reasonable access parent having less contact with the child and a diminishing role over time despite having joint custody. This issue is especially important in Hong Kong because many local citizens have dual nationality (following the transfer of sovereignty in 1997 from the United Kingdom to China) and many foreign nationals live and work in Hong Kong. When these citizens with dual nationality divorce in Hong Kong, they are in a system where the best interests of children are the primary focus, but where the law is historically the same law as the United Kingdom had prior to the enactment of the 1989 Children Act. Fortunately, Hong Kong courts are making great strides and moving forward towards a more child-centered model. This is good news for parents who wish to continue to nurture a healthy relationship with the children after divorce.

3. Steps Towards Joint Parental Responsibility Focus: The Law Reform Commission of Hong Kong has published a report on “Child Custody and Access” which has been a point of discussion since March 2005. The primary focus of the 72 recommendations in the report is to emphasize continuing responsibility of parents towards their children even after divorce. This is already evident in Hong Kong courts, which are now making more orders for “joint custody” which divorcing couples in California are already accustomed to. In Hong Kong’s premier radio broadcast show called Backchat on RTHK radio, Stephen Peaker, along with other key players in the family law community in Hong Kong discuss why this is significant for families in Hong Kong. Essentially, this new reform is significant because when parents decide to no longer remain as life partners, the children are no longer deprived of having the love and care from both parents.

4. Input from Children: In custody proceedings in California, a child may be given the opportunity to speak his/her mind about preference as to whom he/she would like to live with. Many judges will consider a child’s preference if the child is at an age of maturity and emotion. Hong Kong’s move towards a child-centered focus will now allow a child’s preferences to be brought into the system. Similar to the appointment of minor’s counsel in California, Hong Kong already has a system for separate representation of children via the Official Solicitor. Stephen Peaker praises these reforms and the role of the Official Solicitor as this is an important matter for children and their families. Mr. Peaker anticipates the Hong Kong government will do their best to bring this to the table as soon as possible. Since 2015, the Hong Kong government and the Chief Justice have promoted the introduction of the law as soon as possible, which is a very welcome move.

No matter where you are located across the globe, the focus in a divorce involving children should always be the “best interests” of the children. Even a child-centered model (as seen in California) does not work without the full cooperation of parents in divorce. As I stated in my article about co-parentingyou can take steps to encourage successful co-parenting with 1) regular communication; 2) seeking assistance from a professional when communication is an issue and 3) avoid court litigation because a court can’t always make the best decision for you and your family. Parents working together is always the best option for a healthy future.

By Stephen Peaker & Caroline Choi

 

Entertainment journalists are not lacking for work, as juicy gossip about celebrity breakups continue to make headlines across the globe. The most surprising split being the divorce of mega superstars, Brad Pitt and Angelina Jolie. There have been numerous reports about what caused this picture-perfect relationship to sour, including allegations of misconduct against the children and abuse of alcohol and drugs. Since initial news broke of the split, Brad Pitt and Angelina Jolie are making great strides by keeping details of the divorce under wraps and moving towards settlement.

What we do know however, is that when Angelina Jolie initiated the divorce proceedings, her Petition for Dissolution requested “sole physical custody” of the couple’s six children. This is a significant detail because California laws (and most other states across America) encourage “joint custody” of children. An individual who requests sole physical custody for one reason or another usually makes this request because of concerns about the other parent’s ability to care for the children.

While we may never know Angelina Jolie’s real reasons for requesting sole physical custody, the important point is that California law, like most states in the U.S., encourage joint legal and physical custody of children. However, not all jurisdictions across the globe follow these same standards. As a California attorney, now practicing as a Registered Foreign Lawyer (California, USA) in Hong Kong, I have discussed the differing child custody laws between California and Hong Kong with Stephen J. Peaker, head of the Family Law Department at Oldham, Li & Nie (OLN) and a fellow of the International Academy of Family Lawyers (IAFL). To begin, let’s take a look at what joint legal and physical custody means in California and why it’s so important for the health of families of divorce:

1. California Favors Joint Legal and Physical Custody: Joint legal custody means both parents agree to share in the rights and responsibilities to make decisions relating to the health, education and welfare of a child. Joint physical custody means both parents agree to equally share in the physical care of a child. California law encourages divorcing parents to share responsibilities in both the legal and physical custody of a child because parents who share this responsibility are ultimately working towards the “best interests” of a child. The ultimate goal is to ensure the health and success of the child. Many other countries, including England, Scotland, Australia and New Zealand encourage this model of joint parental responsibility and as family law practitioners, it is our hope that other countries will follow this model. Co-parenting, while difficult at times, encourages healthy relationships when a family unit is broken.

2. Legal Custody, Physical Custody & Control In Hong Kong: In Hong Kong, parents are usually given joint legal custody, but with physical care and control to one parent and with reasonable access to the other parent. This is currently done without reference to joint parental responsibility, which fails to encourage separated parents to act collaboratively in the best interests of the child. When joint custody, care and control is given to one parent, too much authority is given to one individual which can sometimes result in the reasonable access parent having less contact with the child and a diminishing role over time despite having joint custody. This issue is especially important in Hong Kong because many local citizens have dual nationality (following the transfer of sovereignty in 1997 from the United Kingdom to China) and many foreign nationals live and work in Hong Kong. When these citizens with dual nationality divorce in Hong Kong, they are in a system where the best interests of children are the primary focus, but where the law is historically the same law as the United Kingdom had prior to the enactment of the 1989 Children Act. Fortunately, Hong Kong courts are making great strides and moving forward towards a more child-centered model. This is good news for parents who wish to continue to nurture a healthy relationship with the children after divorce.

3. Steps Towards Joint Parental Responsibility Focus: The Law Reform Commission of Hong Kong has published a report on “Child Custody and Access” which has been a point of discussion since March 2005. The primary focus of the 72 recommendations in the report is to emphasize continuing responsibility of parents towards their children even after divorce. This is already evident in Hong Kong courts, which are now making more orders for “joint custody” which divorcing couples in California are already accustomed to. In Hong Kong’s premier radio broadcast show called Backchat on RTHK radio, Stephen Peaker, along with other key players in the family law community in Hong Kong discuss why this is significant for families in Hong Kong. Essentially, this new reform is significant because when parents decide to no longer remain as life partners, the children are no longer deprived of having the love and care from both parents.

4. Input from Children: In custody proceedings in California, a child may be given the opportunity to speak his/her mind about preference as to whom he/she would like to live with. Many judges will consider a child’s preference if the child is at an age of maturity and emotion. Hong Kong’s move towards a child-centered focus will now allow a child’s preferences to be brought into the system. Similar to the appointment of minor’s counsel in California, Hong Kong already has a system for separate representation of children via the Official Solicitor. Stephen Peaker praises these reforms and the role of the Official Solicitor as this is an important matter for children and their families. Mr. Peaker anticipates the Hong Kong government will do their best to bring this to the table as soon as possible. Since 2015, the Hong Kong government and the Chief Justice have promoted the introduction of the law as soon as possible, which is a very welcome move.

No matter where you are located across the globe, the focus in a divorce involving children should always be the “best interests” of the children. Even a child-centered model (as seen in California) does not work without the full cooperation of parents in divorce. As I stated in my previous article about co-parenting, you can take steps to encourage successful co-parenting with 1) regular communication; 2) seeking assistance from a professional when communication is an issue and 3) avoid court litigation because a court can’t always make the best decision for you and your family. Parents working together is always the best option for a healthy future.

 

Click here for the article published on The Huffington Post.

This article is for information purposes only. Its contents do not constitute legal advice and readers should not regard this article as a substitute for detailed advice in individual instances.

 

 

Permanent relocation of children

Friday, 17 July 2015 16:40

By Paul Firmin & Amelia Lo

How does permanent relocation arise?

In recent years, applications for the court’s permission to remove a child permanently overseas has commonly arisen in the following circumstances:

  • The Applicant is in a new relationship (whether married or not) and the new partner lives in another jurisdiction, or has a new job or business relocation.
  • The Applicant wishes to return to his or her native country to be close to their family and friends.
  • The Applicant believes that employment or lifestyle opportunities abroad are better than that in Hong Kong.

When do you need permission?

Under Section 19 of the Matrimonial Proceedings and Property Ordinance, Cap 192 of the Laws of Hong Kong, the court may make such order as it thinks fit for the custody of any child of the family who is under the age of 18. In Hong Kong, when a court makes a custody order, it directs that the child or children cannot be removed from the jurisdiction of Hong Kong without leave of the court. As such, it is imperative for a parent who has been divorced in Hong Kong and has the day to day care of any child or children to seek the consent of the court should he or she wish to relocate abroad with their child or children, by means of an application to the court for leave.

What determines whether you can relocate? 

The English case of Payne and Payne [2001] Fam 473, which draws its origins from the earlier decision of Poel v Poel [1970] 1 WLR 1469 has been consistently applied over the last decade in English cases in which the Applicant is the primary carer. In Hong Kong in the Court of Appeal’s decision in SMM v TWM [2010] 4 HKLRD 37, it was said that Payne establishes that (1) “the welfare of the child is the paramount consideration” and (2) refusing the primary carer's reasonable relocation proposals is likely to impact detrimentally on the welfare of her dependent children. The principles set out in SMM v TWM [2010] 4 HKLRD 37 were followed 2 years later in the Hong Kong case of RK v YS  FCMC 4931/2012

One of the more recent landmark cases on relocation in England and Wales is that of the Court of Appeal in the case of MK v CK [2011] EWCA Civ 793. Lady Justice Black, in considering the authorities on relocation before her, pronounced that it was quite clear that “the only authentic principle - that runs through the entire line of relocation authorities is that the welfare of the child is the court’s paramount consideration. Everything that is considered by the court in reaching its determination is put into the balance with a view to measuring its impact on the child”. She also emphasized the importance of considering all the facts of the individual case, and stated that “even where the case concerns a true primary carer, there is no presumption that the reasonable relocation plans of that carer will be facilitated unless there is some compelling reason to the contrary, nor any similar presumption however it may be expressed”. 

In the English case of TC and JC (Children: Relocation) [2013] EWHC 292, Justice Mostyn stated that the court may ask the following questions as guidance when deciding whether the relocation is in the best interests of the child.

Questions to ask the Applicant

  • Is the application genuinely motivated rather than being caused by a selfish desire to exclude the other party from the child's life?
  • Is the application "realistically founded on practical proposals" that are both well researched and investigated?
  • How would the Applicant, either as a single parent or as new spouse, be affected, if his/her realistic proposal was rejected? 

Questions to ask the Respondent 

  • Is the Respondent's opposition motivated by genuine concern for the child's welfare, or is it driven by some ulterior motive?
  • What is the extent of the detriment to the Respondent and his/her future relationship with the child, if the application were granted?
  • To what extent would the detriment be offset by the extension of the child’s relationships with the Applicant’s family and homeland? 

Is there a presumption in favour of the carer (usually, the mother)?

It used to be said that in determining relocation applications, there was virtually an automatic presumption in favour of the mother as the primary child carer. It may well still be the case, at least from a statistical perspective, that an application for permission to relocate made by the primary child carer is more likely to succeed than not, but it is clear that each case ultimately depends on its own facts and there are no presumptions in favour of one parent over the other.  In 2015, we have successfully obtained the relocation to the United States of a father and his children. 

 

Debunking Myths about Marriage

Friday, 29 May 2015 12:30

By Paul Firmin, Partner

 

Yet again the Courts in Hong Kong have had to consider a case that involved an oft believed myth – ‘because we were married I thought half the house was mine, even though my name wasn’t on the title’.

This is one of those myths that has actually gained some strength in the last 14 years since the English Supreme Court’s decision in White –v – White that husband and wife must share marital property equally when divorcing.  Hong Kong has followed White with the Court of Final Appeal’s 2010 decision in LKW –v – DD [2010] 6 HKC.

What happens though when a spouse sells the property before a divorce?.  Very recently in Mo Ying –v- Brillex Development Limited and Chan Wai Tim [CACV 120/2014], the Court of Appeal were faced with a case brought by a wife whose Husband had sold the matrimonial home from under her feet, and gone on to lose most of the sale proceeds.  She sued her husband and the purchaser alleging that the Husband held the property (when he owned it) on a ‘common intention constructive trust’ for himself and her jointly, and had sold the property without her knowledge and consent.  

Not so said the trial judge and the Court of Appeal.  To establish a common intention constructive trust, there must either be an express common intention or one to be inferred.  The Husband’s excuse or reason for not changing the title from sole to joint, along the lines “it’s troublesome – will have to pay” even on the wife’s evidence were equivocal and did not lead her into believing that she had an interest in the property.

This led to the wife having to pursue the inference of a common intention.  The approach to be adopted by the Court in considering whether there is to be inferred a common intention is to consider the overall circumstances from the conduct of the parties.  As the Court of Appeal said though: 

“The difficulty is the extent to which one should consider the setting of a married couple and their matrimonial home on this issue.  Specifically, what weight should one put on a matrimonial relationship in the analysis which, after all, under the modern approach of fairness in the matrimonial regime, demands no discrimination in terms of the nature of contribution by a married couple.”

Whilst admitting that it was tempting to merge the matrimonial regime with the constructive trust approach, Cheung JA thought it wrong in principle.  The matrimonial regime had been developed over many decades from statute and the common law before it reached the present status of using equal sharing as the starting point.  On the other hand in the constructive trust approach, the matrimonial relationship was no more than one of the factors to be considered in the inference exercise.

Each case will of course turn on its own facts, but in Mo Ying it was not enough that there was a marriage, that the property had been acquired as the matrimonial home for the wife and children, that the wife had made monetary contributions through the pooled family resources, that the wife’s sister had lent part of the purchase price and the wife’s sister had lived in the property after the purchase.

Cheung JA thought the words of Fox LJ in Burns –v – Burns [1984] Ch 317 particularly apposite:  

‘There remains the question of housekeeping and domestic duties.  So far as housekeeping expenses are concerned, I do not doubt that (the house being bought in the man’s name) if the woman goes out to work in order to provide money for the family expenses, as a result of which she spends her earnings on the housekeeping and the man is thus able to pay the mortgage instalments and other expenses out of his earnings, it can be inferred that there was a common intention that the woman should have an interest in the house – since she will have made an indirect contribution to the mortgage instalments.  But that is not this case.

During the greater part of the period when the plaintiff and the defendant were living together she was not in employment or, if she was, she was not earning amounts of any consequence and provided no money towards the family expenses.  Nor is it suggested that the defendant ever asked her to.  He provided, and was always ready to provide, all the money that she wanted for housekeeping.  The house was not bought in the contemplation that the plaintiff would, at some time, contribute to the cost of its acquisition.  She worked to suit herself.  And if towards the very end of the relationship she had money to spare she spent it entirely as she chose.  It was in no sense ‘joint’ money.  It was her own; she was not expected and was not asked to spend it on the household.’

The wife in Mo Ying failed to prove a common intention constructive trust and failed therefore to establish that she had an interest in the property before it was sold.  On the facts of the case, the wife was also held to be precluded from setting aside the sale to the purchaser even if she could have established an interest in the property. 

Mo Ying serves as a timely reminder that a spouse’s rights to equal sharing of property on divorce is a very different matter from the rights of a spouse before divorce.  Marriage is not yet a legal partnership even when their marriage vows include “with all my goods I thee endow….for richer, for poorer…”!

 

By Stephen Peaker, Partner and Head of Family Law Department and Kenneth Yung, Associate

An update to our previous article - English Supreme Court rules that Pre-nuptial agreements can now be binding. Will Hong Kong follow suit?

Historically, pre-nuptial and separation agreements were not enforceable in common law jurisdictions including Hong Kong. These agreements were considered to be contrary to public policy as they sought to oust the jurisdiction of the court to grant financial relief to the divorcing parties by the Hong Kong Courts in deciding the financial relief to be given to the parties and their children having regard to the various factors identified in sections 4, 5, 6 and 7 of the Matrimonial Proceedings and Property Ordinance “MPPO” (Cap. 192) and the relevant case law most relevantly LKW v DD (2010) 13 HKCFAR 537.

In the UK, the case of White v White in 1999 had significantly impacted financial division cases towards a more 50:50 asset division approach. However, as the society’s view and attitude towards public policy evolves, the English Supreme Court gave a judgment on 20th October 2010 in the case of Radmacher v Granatino [2010] UKSC 42, [2011] 1 A.C. 534 that pre-nuptial and/or separation agreements entered into by a couple to regulate their financial affairs in the event of their separation and/or divorce are no longer contrary to public policy, and even if such agreements provided for substantial departures from equality (which is almost always the case) that “The court should give effect to a nuptial agreement that is freely entered into by each party with a full appreciation of its implications unless in the circumstances prevailing it would not be fair to hold the parties to their agreement”.

On 9th June 2014, the Court of Final Appeal of Hong Kong confirmed in its judgment in SPH v SA (formerly known as SA), FACV 22 of 2013 that “the principles enunciated in Radmacher v Granatino should also be regarded as the law in Hong Kong” – this effectively creates a Hong Kong authority that a pre-nuptial and/or separation agreement will be binding subject to the following factors:-

1. The agreement is "freely entered into" – that the agreement was not signed by either party under any pressure, duress, or undue influence, but was entered into by the party's own free will with sufficient time and opportunities for the parties to consider and to negotiate the terms of the agreement.

2. Each party has "a full appreciation of its implications" – each party should have the opportunity and means to obtain independent legal advice, and that there should be mutual full and frank disclosure as to the financial positions of both parties. Satisfying this criteria will assist in justifying that the agreement was entered into willingly.

Although the Court of Final Appeal accepted the principles set in Radmacher v Granatino, the Court expressly gave a qualification in relation to two different types of pre-nuptial agreement – the one that frequently happens in the UK which are designed primarily for the consequences of divorce such as waiving or restricting claims for financial provision on divorce and provide for a significant departure from equality, as in the case of Radmacher v Granatino, are more likely to be upheld; and the other type that more often occurs in civil law countries in Europe which are primarily concerned with the effect of the marriage on the parties’ property rights, made for the purpose of adjusting the default matrimonial property regime rather than made in anticipation of divorce, remains questionable if not doubtful in terms of enforceability. As the Court of Final Appeal put it in its judgment: “It is not yet settled what effect matrimonial property regime agreements in the strict sense have in the case of matrimonial proceedings in Hong Kong (or England)”.

Click here for the full Court of Final Appeal judgment of SPH v SA (formerly known as SA), FACV 22 of 2013.

This article is for information purposes only. Its contents do not constitute legal advice and readers should not regard this article as a substitute for detailed advice in individual instances.