Revision Notes of Family Law HK

Family Law & Matrimonial Practice Notes
CH 1
MARRIAGE
 Introduction
Marriage is a union between a man and woman for life unless divorced, under the latest law it must be
monogamous (singular marriage)
Regulated under the Marriage Reform Ord (MRO) (1970) and under MO
S.2 of MRO requires for a valid marriage it must be registered with the marriage registrar
S.4 of MRO marriage only valid if it is a voluntary union, for life, between a man and woman to exclude
everyone
S. 6 of MRO prohibits kim tiu marriages/ polygamous marriages (multiple marriages by man)
Art 37 of Basic Law which line with Art 16 of UDHR – freedom of marriage and raising family freely
Art 19 of the HK Bill of Rights Ord state: -
1) The right to Family is a fundamental right and must be protected
2) Consent to marriage mandatory for both spouses
3) Both spouses have equal rights until dissolved
S. 45 of OAPA, anyone who remarries while being married commits the offence of bigamy (multiple marries)
 Who is entitled to marry in HK

5 requirements: -
1) Single not concubine as per S. 5 MRO
2) Must be a man and a woman, as per S.4 of MRO (Hyde v Hyde (1866). For same-sex marriages, it is not
recognized and if done is null and void as seen in Leung Chun v Sect Civil Services (2017). Sex change
is not considered as same-sex after the operation hence that marriage is valid as seen in W v Registrar of
Marriages (2013)
3) Minimum age 16, as per S. 13 of MRO if the underage Registrar does not have the power to issue the
marriage certificate. In case of age is less than 21 and more than 16 registrars are required to ask for the
consent of the parent or guardian.
4) Cannot marry biological siblings or children (Mette v Mette (1859)
5) Involuntary contraction of marriage, male and female must provide a free consent as per S. 21(4)(a)(ii)
of MO for males and S.21(4)(a)(iii) of MO for females.
If fulfilled a valid marriage is formed.
The registrar has also the power under S.21(3) of MO can perform a marriage in his office. (can also be
contracted before civil celebrant or minister at the place of worship). Chief Adjudication Officer v Bath (2000)
couple got married at an unregistered worship place but due to parties living together for a long period resulted
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in a decision in favour of the Sikh couple. Not always Martin v Myers (2004) court did not find evidence of
marriage. Court also applied presumption where the certificate of marriage is not available (Pier v Pier (1849).
The recent case of invalid marriage where the only religious ceremony took place and not the legal procedure of
the marriage was invalid (G v M (2011). For Muslims only Nikkah is insufficient they must undergo a civil
marriage and Nikkah to comply with S. 26 (1) (a) of the Marriage Act (1949).
 Rights and Duties of husband and wife
They must cohabit (meaning live together). The consummation (sexual relation) is a right and a duty,
incapacity or willful refusal to consummate are ground for nullifying the marriage as per S. 20 (2) (a) and (b) of
MCO. Parties must remain faithful in marriage to each other if not it is a ground to apply to the court for a
decree of nullifying the marriage as per S. 20(2)(f) or MCO (adultery is a ground for divorce). Duty to
maintain the other party. If does not the court can ask to maintain, as per S. 3 of Separation and Maintenance
Order Ord (application for maintenance). Both parties have a right to succession inheriting others' estate upon
death as per S. 4 of Intestates Ord, provided it is not settled by will but cannot give whole property in a will as
S.3 of the Inheritance (PFD) Ord places a limitation on will when concerning spouse rights. Right to safeguard
secrets.
 Before appointment day types of Marriages after MRO
Different types of marriages were possible before 1970 such as kim tiu or Chinese customary marriages or
polygamy but after appointment day all marriages must go through the registrar (Leung Robert v Leung Ling
(1999). Under Chinese customary marriage union concubine is not a mistress, but rather a second wife or tsip
and the first wife is called tsai or kit fat. MRO limited concubinage and kim tiu marriages (Kwok Ying v Tao
Wai-chun (1995).
- Chinese marriages
Chinese modern marriages are derived from the Civil Code of the Republic of China (1930). Under the Civil
Code some principles are set:-
- Art 985 established monogamous marriage
- Art 982 marriage must be an open ceremony in presence of at least two witnesses (Ching Chi v Pui-
cheong (1983)
- Art 980 parties must be 16.
S. 8 of MRO recognized Chinese marriages as valid entered under the Civil Code
S. 9(2) of MRO allows the registration of Chinese customary and modern marriages. This is not mandatory and
does not make the marriage void.
S. 9(7) of MRO if the registrar does not register the wedding the District Courts have the jurisdiction to review
the registrar’s decision.
- Foreign marriages
In HK monogamous marriages from a foreign country are valid as per S. 20A of MCO, provided it fulfils
formalities and complies with the law of the country. The courts will not uphold a foreign marriage if it is
unacceptable to the morality even if valid in the foreign country.
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For Nikah's contract oversea it must be proven undisputed in English and Wales by marriage certificate etc in
case of Nikah's contract is not in English must be translated and notarized or authenticated. For foreign
marriages, polygamous marriages are recognized but only the ones with the principal wife (first wife).
S.9 MCO only gives the HK court jurisdiction to dissolve monogamous marriages.
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CH 2
NULLITY
 Introduction
Marriages are a special type of contract in which validity can be affected. By nullity, such a marriage finishes.
Some marriages are automatically void such as same-sex marriage, meaning even if the parties wish to affirm
the marriage they cannot do it legally. However, some marriage contracts are voidable failure to consummate,
this means that if the parties wish to nullify the marriage they may and at the same time they can wish to
continue with the marriage. A lot of differences between void and voidable marriages.
In voidable marriage, even courts cannot enforce it whereas in voidable marriages if the parties wish to
terminate the marriage they must apply for a decree of nullity. Such application is similar in procedure to
divorce but this must be applied within 3 years (not for consummation as per S. 20(4) of MCO.
 Void marriages
S. 20 (1) of the MCO sets out the grounds for rendering void a purported marriage that takes place after 30 Jun
1972.
It is not a valid marriage as per S. 27 of the MO
- Parties married are within the prohibited degree of kindred and affinity
- Under the age of 16 (Pugh v Pugh(1951))
- Parties have intermarried (S. 27 of the MO)
- Marriage is invalid under the laws of HK
- Either party is already married
- Parties are not male or female. (Goodwin v UK (2002) Transgender case (Bellinger v Bellinger (2003)
UK has made same-sex marriage legal R v SS International Department. HK is not bound by the
decision of the European Court, however, HK bill of rights is a mirror of ICCPR, but the judgment of
Goodwin was persuasive and was followed by W v Registrar of marriage (2013). The Domestic
Violence Ord (2008) followed by the Domestic and Cohabitation Relationships Violence Ord (2009) did
little to same-sex marriages, whereas in a criminal cases the story is different from Roy v Sect for
Justice (2006) and Sect for Justice v Yau Yuk Lung (2007) held that discrimination on the grounds of
sexual orientation may be unconstitutional. An important case was the Director of Immigration v QT
(2018) having a policy that denies same-sex couples the ability to bring their partners to HK amounted
to unlawful discrimination.
 Voidable marriages
A voidable marriage (W v W (1967)) remains good in law unless nulled and void by a court of law. S. 20 (2) of
the MCO sets out the grounds that make a marriage voidable:
- Marriage is not consummated due to incapacity (Hodgkins v Hodgkin (1950) whereas a decree for
nullity is not a matter of right Shu Wing Li v Shu Ling Amy (!994)
- Marriage is not summated due to willful refusal (Horton v Horton (1947)
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- No voluntary consent (Singh v Singh (1971), Mehta v Metha a decree of nullity was issued as the
applicant did not understand the language Hindi and was aware she was being married, issue of consent
also arises in a situation of mistaken identity where court do annul when that happens (Militante v
Ogunwomju (1994))
- Consent due to mental illness, S. 2 Mental Health Ord. defines mental disability, being forgetful also a
valid ground to annul (In the Estate of Park (1953). In Shu Wing Li v Sui Ling Amy (1994) a couple
married to avoid loss of face which was not considered unsoundness of mind by the court.
- At the time of marriage, the party was suffering from veal disease in a communicable form
- At the time of marriage, the woman was pregnant by some other person, not the husband
 Restrictions
1) The court can deny a decree for nullity if the respondent can satisfy the court that the behaviour of the
petitioner led the respondent to reasonably believe that the petitioner would not apply for such a decree
of nullity (Scott v Scott), where there is an agreement not to consummate (Morgan v Morgan).
2) Non-consummation decree must be taken within 3 years of marriage otherwise it would not be nullified
but a divorce would be required
3) If pregnancy is discovered prior to the marriage husband cannot subsequently go for the nullity
(Jackson v Jackson).
A consequence of nullity order is that the marriage no longer exists and the single status is maintained which is
not the case for divorce.
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CH 3
SEPARATION AND MAINTENANCE ORDER (SMO)
 Introduction
SMO is a remedy that is prior to divorce often used to save the marriage, during this time husband and wife live
separately not under one roof. All orders under the SMO are to protect the parties from physical, financial, or
both.
 Matrimonial Wrongs
Also called matrimonial offences previously charged as a crime.
S. 3(1) of the SMO provides 8 grounds on which remedies under S.5 of the SMO may be sought:
1. Assault by one spouse on another and if the magistrate is satisfied as to aggravated character.
2. Married person convicted for assault on the other party in marriage and a sentence or a fine of $500
is avoided.
3. The married person has deserted the other spouse
4. The married person guilty of cruelty against another person to marriage or the children
5. Failed to provide reasonable maintenance to the other party and education of children
6. Suffering from a venereal disease, knowing about it, still insists on sexual intercourse
7. One party forcing the other married party to submit to prostitution.
8. The married person is a habitual drunkard or drug addict (S.2 of the SMO defines a habitual
drunkard who is incapable of managing his affairs)
Legal Remedies for Matrimonial Wrong

Against matrimonial wrong suffering, a party may apply to the district court under the SMO from remedies
listed in S. 5 (1) which are mainly in 4 categories: -
Any application under S3, the DC will make an order containing any of the provisions.
1) Non-cohabitation order by the DC that the applicant is no longer bound to cohabit with the wrong doer
(s5(1)(a) SMO.
i) It simple means husband-wife lives apart, it’s purely the court’s discretion court sees three
elements as per (Corton v Corton) Whether the order is necessary for the protection of the
applicant
ii) Whether more than one serious case
iii) Whether there is a reasonable prospect of reconciliation.
It is granted based on proof of grounds laid down in ss3(1)(a) (b) of the SMO that is a conviction of assault. If
the party has received a suspended sentence for conviction, NCO may not be obtained.
The court will also give flexible orders to keep the reconciliation alive.
NCO may also be used to protect the applicant from wrong doer who insists on sexual intercourse while
suffering from venereal disease or is a habitual drunkard. (ss3(1)(f)-(h) of the SMO.
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Failure to maintain, desertion NCO cannot be obtained.
2) Custody Order granted the protection of the child under S. 5(1) (b) of SMO. This order is available for
under 18 children. Until such a child reaches 18 years of age, his custody is granted to either one of the
parents.
3) maintenance for applicant and/ or child, FOR SPOUSE: there is a right to receive and a duty to provide
reasonable financial maintenance (which is support) to each other when married. If a wrongdoer fails to
provide the other party may apply under S. 5(1)© of SMO to force the wrongdoer to pay through a court
order. As remedies under SMO are for immediate needs whereas S. 8 of the MPPO provides a similar
remedy for a longer-term. MPPO are ancillary order to divorce. However, there is difficulty enforcing
SMO when both parties are married and still cohabiting. The payment may be made either as a lump
sum or periodic payments. FOR CHILDREN OF FAMILY: the order can be sorted for the protection
of the child as per S.5(1)(d) of the SMO, for instance, a financial order for reasonable maintenance and
education. Financial orders for the child are only available up till he attains the age of majority,
however, such an order may even extend beyond the point of majority if the child is pursuing education
4) Cost Order, as per S.5(1)(e) the court has the power to order payment of reasonable costs of the parties
or to either of them as the court may deem fit. Cost includes fees, charges, disbursements, expenses, and
remuneration.
5) Other Orders and Enforce Orders, as per S.7(1) of the SMO court have the power to alter, vary
discharge, suspend or revive after suspension of any order. The Court can make action against a person
outside HK. The court discharges the order of SMO if the party applies for an order to cohabitation or
commits an act of adultery (no clean hands maxim). This is not a piece of automatic process evidence
must be submitted to prove adultery or resumption of cohabitation. Order for the best interest of the
child as per S.7 (5) of SMO. The court may order to enforce payment to the applicant without reasonable
excuse also order for payment of interest in case of default.
SMO remedies are available to applicants and children. No automatic presumption of non-cohabitation Order.
The court shall look for the best interest of children as per S. 5(3).
 Limitation on Orders under SMO
Two limitations:
1) If the applicant has done something wrong that applicant cannot act against the respondent doctrine of
clean hands. With exception of if the respondent has condoned, connived, or conducted by neglect,
misconduct to adultery (Swan v Swan (1953). Adultery is deemed condoned if the respondent lives with
the applicant for more than 3 months after it and hence can apply for SMO.
2) If the parties live, reside, or cohabitate no order of SMO can be made. Even if the order of SMO is made
but the parties reside for more than 3 months continuously and uninterruptedly the SMO order will cease
(Hewitt v Hewitt (1952)).
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CH 4
DOMESTIC VIOLENCE
 Introduction
The traditional Chinese affirmed domestic violence as acceptable whether physical, sexual, emotional, or
psychological. In 1984 this issue was identified across HK by the Social Welfare Dept. Soon followed by the
Domestic Violence Ord. which was the first ray of hope to prevent it. As the law was inspired by the UK’s 1976
Act DVMPA, the HK courts remain keen on the UK’s development too. In 2013 the definition of DV
(Domestic Violence) was revised and expanded to include intimidation, isolation, depriving of financial
independence, or material possession.
DVO protects married parties and children from living with the aggressor but does not protect other family
members despite being subjected to violence. In 2010 DVO title was changed to Domestic and Cohabitation
Relationship Violence Ord. (DCRVO).
DCRVO and DVO were passed to protect the victim and secondly fill up the gaps of criminal law for DV. It is
important to note no specific criminal law charge of DV exists but protection can be sorted under a number of
acts. For instance OAPA S. 2 for murder, S. 40 for assault, S. 27 neglecting a child under 10 years. Or the
Crimes Ord S. 118(1) for rape and indecent assault under S. 122(1) of CO.
 DCRVO
S. 3 – relation to a spouse, former spouse, and child
Jurisdiction is of District Courts. The application can be made for a non-molestation order as per S. 3(1)(a) and
(b). Orders under S(3)(1)(C) of the DCRVO refers to ouster order, which is only granted in extreme situations
as it requires strong evidence of actual physical violence, especially when children are involved and S.3(1)(d)
refers to re-entry order.
Under S. 3(1) of the DCRVO injunction can only be granted if a minor is molested. S. 2 defines a minor as
under the age of 18 can be a natural child, step-child, or adopted child. The same section also defines a
matrimonial home as a home that is used by the parties as their ordinary residence shared with others and to
protect the applicant from becoming homeless if subjected to violence and an injunction is a sort against the
aggressor from entering the matrimonial home.
S. 3A – relation to relative
Are defined as grandparents, parents, siblings, children, grandchildren, uncles, aunts, inlaws, and stepfamilies.
S. 3B – relation to cohabitants and former cohabitants
Sets out the factors that the court will consider when dealing seeing whether the parties are in a cohabitation
relationship (which is defined under S.2 of DCRVO as a relationship between two persons (can be of the same
sex too) living together as a couple.
Molestation is not defined by DCRVO but by common law Horner v Horner (1983) very widely as it ranges
from scolding, and harassment to annoyance to ABH. In Vaughan v Vaughan it was defined as pestering.
Molestation includes humiliation, nuisance, shouting obscenities, staking or scolding and a successful ouster
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order can be attained Chan Chun v Chan Lam and P V C (2007). Harassment over the phone, posting posters
with insulting works or abusive letters anything that causes distress or harm is harassment as per Johnson v
Walton (1990). Physical abuse or hitting with hard objects is molestation. Psychological abuse threatens to use
physical violence, psychological abuse, and sexual abuse. Molestation can also include financial abuse too.
The court will not award non-molestation ouster or re-entry as a long-term remedy. As S. 6 of the DCRVO
specifies injunction shall not exceed 24 months and under S. 7 court can award it for 24 months.
 Types of Orders
These orders are aimed to stop and preventing DV, the following is a summation of some but the list is not
exhaustive injunctions granted by the court:
i) Single non-molestation order for an applicant
ii) Single non-molestation order for a specified minor
iii) Combined non-molestation order for both applicant and specified minor
iv) Combined non-molestation order to retrain the respondent from molesting the applicant and an
ouster order to stop the respondent from entering the property
v) Single ouster order stop from entering the house
vi) Single ouster order stopping respondent from entering the area of residence of the applicant
vii) Combined non-molestation order plus ouster order
viii) Combined non-molestation order plus re-entry order for applicant and the minor
ix) Any non-molestation or ouster order with authorization of arrest.
 Factors to be considered
For an ouster order and re-entry order the District Court shall consider the following factors under S. 3, 3A, and
3B:
- Conduct of the parties with each other
- Parties financial needs
- Circumstances of the case
- Interest in the property (legal or equitable, contractual or common residence)
- Impact of injunction on the relationship
- Needs of specified minors
The court in the case of cohabitants will not grant an injunction unless satisfied as to the performance of the
relationship as per S.6 (3)(a) of the DCRVO. The court holds discretion in granting the injunction whereas the
Guardianship of Minor Ord holds that child must be put first (Richards v Richards (1984). An ouster order does
infringe property rights of the respondent but does not change like the property adjustment order in cases of
divorce. Therefore, in cases of ouster order or reentry property ownership is not a determining factor (Wilde v
Wilde). The important question for the courts to decide is whether it is fair, just, and reasonable that a party to
be excluded from a matrimonial home (Walker v Walker (1978).
 Arrest for breach of the order
This power is only used in exceptional circumstances (D v L (2014). In the case of cohabitants, the court will
not attach an authorization of arrest to an injunction unless it is satisfied with the permanence of the relationship
as per S.6(3)(b). If an applicant applies for authorization of arrest DRVO allows the respondent to come to
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court and defend against such an order. An authorization of arrest is also only extended upon a maximum of 24
months.
If authorization for arrest is acquired then no arrest warrant is required by the police. If a person is arrested
under this for breach of an injunction they must be brought before the court of law before the expiry of the
arrest. Respondent can move for bail under Rule 6 of the Domestic and Cohabitation Relationship Violence
Rules.
 Application procedure under the DCRVR
Under Rule 3 of the DCRVR and Rules of the High Court shall apply for proceedings under the DCRVO. Rule
8 empowers the judge to have the proceeding in the chambers unless he directs otherwise.
The applicant must go to the family court registry to file an injunction application unless other family court
proceedings are pending before the family court then the applicant may move for the injunction in those cases
and issue summons to the party unless already party to the case then no summons are required. In urgent cases
also notice to the respondent may not be required. The applicant is also required to submit a supporting affidavit
at the same time. As the courts held in Sofriniou v Szgetti (1991) court held that an injunction may be enforced
without a penal notice if the respondent was well aware of the consequence of disobedience. Moreover, breach
of an injunction itself is not a criminal offence therefore the applicant needs to apply to an appropriate court for
the contempt of court. As a consequence respondent can be imprisoned provided clear cut breach is committed
(R M (1989)
Applications for different orders may have different procedural approaches.
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CH 5
DIVORCE AND OTHER MATRIMONIAL SUITS
 Introduction
A legal marriage can only end 3 ways
1) By the death of a spouse,
2) By a decree of nullity, or
3) By a court issuing a decree nisi of divorce followed by a decree absolute.
Divorce is set out in Matrimonial Causes Ord. (MCO), as per S. 2 of the MCO defines matrimonial causes as
proceedings for Divorce, Nullity, Judicial Separation, and Presumption of death and dissolution of marriage.
 Legal Grounds for Divorce

Due to the Chinese rule on HK and the British Colony, HK has a dual system for divorce.
Under Qing law, a husband could unilaterally declare divorce from his wife (while the wife has no right to
divorce) if the wife:
i) Fails to give birth to a son
ii) Was lascivious, lewd, or adulterous
iii) Failed to show piety towards in-laws.
iv) Engaging in excessive gossip
v) Committed theft
vi) Exhibits jealousy or objects to husband taking an additional wife or concubine
vii) Has an incurable disease
Only If the husband abandoned the wife for a period of 3 years, then she can apply for divorce and a petition to
allow her to re-marry.
HK on western marriage issue divorce which resembles England law i.e divorce for adultery etc.
It was after the 1996 publication in the UK of the Law Commission’s report, Reform of the Grounds for divorce
that led to a reform. It introduced the concept of irretrievable breakdown of marriage and divorce by consent.
The courts in HK have jurisdiction in a divorce proceeding if:
i) Either party has an HK domicile (treats HK as a permanent home)

ii) Either party was a habitual resident (this concerns the quality of residence rather than primarily
focusing on time (Cruse v Chittum (1974)) the proof of habitual residence is ultimately a question of
fact (Grace v Commissioners HMRC (2009)).
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iii) Either party has a substantial connection with HK as per S.3 of MRO, (this means that three years of
ordinary residence (SJH v RJH (2012)) also includes time in the refugee camp (G v G)).
Hence in Wachtel v Wachtel (1973) Lord Denning was of the view if marriage has been broken down
irretrievably let there be a divorce, this was meant to reduce the stigma attached to divorce.
The single ground for divorce is set out in S11 of the MCO which states “the sole ground for making a petition
for divorce shall be that the marriage has been broken down irretrievably and proceedings for divorce shall be
instituted either by a petition for divorce or by an application for divorce.”
Must show marriage broken down irretrievably and satisfy the court of one or more of the facts listed in
s11A(2) of the MCO.
Pursuant to s15(2) of the MCO, the court must enquire the facts alleged by either party. A petition can be
dismissed and decree of absolute will not be granted if evidence of misrepresentation is found s(15)(2), (3) of
the MCO.
Five Facts for Divorce

S. 11A (2) of the MCO requires to show that the marriage has been broken down irretrievably. The five facts
are:
i) adultery
Committing adultery only not sufficient must satisfy the test of an irretrievable breakdown of the marriage
(Anderson v Anderson (1972). Adultery is when a party to a marriage engages in sexual intercourse with
someone else other than the spouse (Dennis v Dennis (1955)). Artificial insemination of a wife by a donor will
not constitute adultery since there is no penetration. Musterbation does not constitute adultery (Rutherford v
Richardson). Adultery must be a voluntary action if a party is raped it is not considered adultery (Coffey v
Coffey) but if the husband rapes it is adultery.
As adultery alone is insufficient the petitioner must find the respondent intolerable as a consequence. S. 15A(3)
provides that if the wife after discovering adultery and continues to live with the respondent for 6 months
adultery would be insufficient but if the petitioner has no place to live then delay may be justified (Bradley v
Bradley)
ii) Unreasonable behaviour
Acts of physical or mental mistreatment of the petitioner and family members, like excessive drinking or
gambling, contracting venereal diseases, or frequent incarceration all constitute behaviour. The court is not
concerned with the conduct being good or bad or right or wrong but the effect it has on the state of the
relationship between the parties (Carew-Hunt v Carew-Hunt). The courts also take into account the character,
personality, disposition, and behaviour of the petitioner in deciding whether or not to grant a divorce (Ash v
Ash).
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In BL v SJY the court considered whether any right-thinking person would conclude that the petitioner cannot
reasonably be expected to live with the respondent given the parties' characters and personalities and the whole
circumstances of the case.
NTN v HSS affirmed PKWP v TTS (2011) that the issue of reasonability involved both subjective and
objective tests. O’Neill v O’Neill not having curtains for 8 months and casting doubt on the paternity of the
children was deemed sufficient for divorce. Particulars of unreasonable behaviour must be stated in the details
of the petition for divorce (WCP v TPW (2015)).
iii) One-year separation with consent
After the marriage is broken down for one year both the petitioner and the respondent must consent to divorce
to achieve divorce through this route. No implied consent can be drawn only express unambiguous consent is
valid Bell v Alfred Franks (1980). No opposing the application is insufficient (McG v R). Voluntary consent is
important (Lawson v Lawson)
Where couples are living apart but still undertake the duties and responsibilities of a married couple they would
not be considered living separately for the purpose of family law (Santos v Santos).
The court does not end by reason of a separation brought about by the pressures of external circumstances.
Court will look for definite termination (Yuen Yu Biu case). S.15A (5) MCO provides that no period during
which the parties lived with each other shall count as part of the period during which the parties to the marriage
have lived apart.
S. 11C (1) of the MCO is a deeming provision to determine when the parties separated as a ground for divorce
but it is not a deeming provision to the effect that if spouses are not living in the same household, the marriage
must be treated as having come to an end (CWG v MH (NO 3) (2017).
iv) Two years of separation
The distinct feature of this from one year is that element of consent as under this route no consent is required
from the other spouse. The main issue with this approach is the completion of two years' time, if such period is
not completed the court would not pass a decree for divorce. The court will only consider continuous-time and
any action of re-living together will not constitute as continuous as per S. 15A (5) of MCO.
A bar to divorce through this route exists under S.15B(1) of the MCO where the respondent opposes the divorce
on the grounds of grave financial or other hardship and it would under the circumstances be wrong to dissolve
the marriage.
v) Desertion for continuous one year
Desertion must be permanent, continuous, and intentional without consent or reasonable cause or fault of the
person asking for relief. (Lane v Lane, Hopes v Hopes, and Perry v Perry). To prove desertion, give evidence
of five points:
1) separation
2) respondent's intention of living separately from the petitioner permanently
3) petitioner did not consent
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4) another party has no good or reasonable cause for the separation
5) separation for a year(Lang v Lang and Price v Price)
The desertion can be constructed in situations where the respondent abuses the petitioner to the limit that the
petitioner is unable to live with the respondent and cannot return to the matrimonial home, in such a situation
respondent can be inferred to be the one deserting the marriage (Thomas v Thomas, Pike v Pike and Hui Shiu
Wing v Cheung Yuk (1968). The persistent refusal of sexual intercourse without explanation for a long period
may make the other party leave, the refusing party would be construed as one deserting the marriage. Living
together is not the key feature for desertion but rather husband-wife abandoning duties of husband and wife.
 Divorce Proceedings
As per S. 11 and 11A, (1) of the MCO divorce proceedings are instituted by a petition or by an application for
divorce. The petition can be done by either party but the application must be done by both parties jointly as per
S.11B(1) of the MCO.
Both petition and application must follow the same procedure:
i) prep and filing of documents relating to divorce
ii) registration of documents
iii) Service of documents
iv) Fixing a date for the divorce decree nisi hearing
v) Decree nisi hearing
vi) granting of a decree nisi
vii) app for decree nisi to be made after 6 weeks of the granting of a decree
viii) delivery of decree
Granting a divorce in joint processing by an application will follow in two-steps
1) initial decree of an order nisi
2) issues involving custody and ancillary relief
Once all issues are settled and the court is satisfied, after 6 weeks either party may ask the decree nisi to be
made absolute.
 One year rule
Under S. 12(1) of the MCO, the parties to a marriage cannot petition for divorce until one year has elapsed from
the date of the marriage. This delay is to settle matters and also due to public policy as a person must treat
marriage as a serious event. If the parties are subject to exceptional hardship the case may be heard before the
period. If forced to remain together married respondents may be exceptional depravity (wickedness) (G v G
(1968).
Pregnancy following an act of adultery in the first year of marriage does not in itself constitute exceptional
hardship (Kwan Lock v Isabella Lock).
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 Bars to Divorce
The first bar to divorce is one year rule as parties are barred from dissolving the marriage before one year.
Secondly, divorce is also barred where it seems that the respondent deserted the petitioner but it can be proved
that there were good reasons for living apart from the family.
In the case of adultery, there is a bar if the evidence is insufficient to establish, moreover, if the parties keep on
residing for a period of six months as under S.15A(3)(4) of the MCO bares on relying after such a period on
adultery or unreasonable behaviour.
As per S.15B of the MCO despite a two-year separation application a decree nisi to dissolve the marriage may
not be granted as it would result in grave financial or other hardship. However, this is often difficult as the court
has the power to make financial adjustments and rearrangement of the family property, and the court may also
grant a decree nisi if the court sees no wrong in giving such a decision.
Under S 15 C of the MCO on the ground of one-year separation, a court has the power to rescind a decree nisi
before the decree is made absolute if a court is satisfied that the petitioner has misled the respondent may be
intentionally or unintentionally.
Under S. 17 of the MCO where decree nisi is not absolute.
 Other Matrimonial Suits
- Judicial Separation
It is similar to separation under the SMO but judicial separation is useful because the parties to the marriage are
still barred from divorce by the one-year or other rules or because the parties are still considering the possibility
of reconciliation. They may use judicial separation as a cooling-off period. There is an advantage of using
judicial separation as it only requires any one of the facts relied on for divorce and no need to prove the
marriage has been broken down irretrievably. Also, a judicial separation decree is like a divorce decree in that
the court must consider whether the welfare of the child under S. 18 of the MPPO has been appropriately
considered before a judicial separation decree can be ordered as per S. 24(1A) of the MCO.
As per S.24(2) of the MCO where parties are released from the obligation of cohabitating, but the marriage is
not dissolved. As per S.24(3) of the MCO, the court can rescind the judicial separation decree on the grounds
that it was obtained in the absence of the applicant. A non-cohabitation order made under S.5 of the SMO may
be viewed as another form of judicial separation although the grounds for obtaining such an order are quite
different.
 Presumption of death
A surviving party may seek for dissolution of the marriage on the grounds of the person has died. S. 26 of the
MCO when there is enough evidence the court may grant a decree of presumption of death and dissolution of
marriage. The standard of proof is reasonable grounds.
If after the decree nisi but before the decree absolute, the other party is found to be alive, the court on an
intervention or showing cause will rescind the decree and dismiss the petition.
 Matrimonial Causes Rule
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Procedural section from R.5 to R. 127.
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CH 6
UNDEFENDED DIVORCE
 Introduction
Undefended divorce is a divorce where the parties are not in dispute and usually the fact that the marriage has
come to an end is agreed upon by both sides. Arrangement for the children, issue of maintenance, and division
of family assets have all been settled by agreement and hence a consent summons is often used to end the
marriage.
Under this, the parties only need to prove that the marriage is irretrievably broken down. In this case, the two
years proof of separation is required. Also, can reply on a one-year separation if there is an agreement. In order
to save cost, only the petitioner engages a lawyer and the respondent acts in person.
 Commencing a Petition
R.9 of the MCR the petition for a divorce on evidence of two years of separation starts by filing Form 2 signed
and filed with the Registrar District Court, to notify the respondent Form 3 and 4 must be prepared. The
signature of the respondent is proved by the petitioner’s affidavit saying that it is the signature of the respondent
as per R.14(5) (Gilbert v Gibert and Brooks).
Two ways to prove service, if Form 4 has not been returned to the registry. First by affidavit to the register or
secondly showing the respondent has received the document. (Heath v Heath).
 Statement of Arrangement
In undefended divorce, a court will not grant a decree if the welfare of the children from the wedlock is not
considered. For children Form 2B must be filed with the petition in the District Court. The statement must
include the detailed arrangement of the children as to their living, education, financial provision, and visitation.
If any illegal or disabled of the children, it must be disclosed. The statement requires a mandatory signature of
the petitioner. Additionally, the solicitor must sign the certification of no reconciliation which is Form 2A
(meaning no hope of getting back together.
 Application for Directions for Trail with Affidavit
The further procedure after filing Form 2, 3, 4,2A, and 2B along with the documents, a set of it except the
marriage certificate is served to the respondent. The respondent is required to answer all the question in Form 4
and return it to the court in eight days. If the respondent intends to defend the divorce, they have 21 days to give
their written statement. The petitioner will also attain a copy of Form 4 filed by the respondent.
If there is a notice to proceed if ancillary relief (means financial relief) is prayed for in Form A or B, the court
will give a date by notice in Form C to deal with the matter on that date and if there is a custody claim by way
of Form 4 then the court will give a date for the children’s appointment by notice in Form I. No Form C or I
will be an issue if no ancillary relief or custody is contested. If only maintenance and matrimonial home are
required then only Form C would be sufficient and no Form I as no custody is contested. The affidavit in
support is Form 21 of the relevant court.
 Deed of Arrangement and Consent Summons
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All the requirements of an undefended divorce under R.33(2A) of the MCR for the cause are to be entered in
the special procedure list. If parties are in agreement on all the matters after the supporting affidavit in support
of the application, they are required to execute a consent summons and file it with the registrar. A consent
summons can be annexed in advance if consented before the case by both parties.
 Decree Nisi and Order
The simple procedure list aims to achieve simple procedures, with speed and cost-effectiveness. On the date
stipulated in the notice, a judge sitting in the Family Court will pronounce a decree nisi. A decree nisi is drawn
up in Form 24 as per R.56 of the MCR. If issues are already agreed then the court will pronounce the decree nisi
and others in terms of the consent summons. The parties will then proceed to draft the decree nisi and consent
order for approval by the court. Once the court approves the documents the parties will obtain a sealed copy
from the court. This means that all matters are settled then the parties are then eligible to apply for the decree
nisi to be made absolute.
 Decree Absolute
After 6 weeks of the pronouncement of the decree nisi and if there is no objection from any participant, the
petitioner may apply by notice for the decree nisi to be made absolute. If on completion of 6 weeks, the
applicant has not applied for the decree nisi to be made absolute then the respondent may apply for the order
nisi to be made absolute. If pending matters such as custody or ancillary relief nisi absolute are not granted. In
such a situation the court when satisfied that matters are settled pertaining to children as per 18 of the MPPO
makes the decree absolute.
 S. 18 MPPO Declaration
As per S.18 of the MPPO, the court shall not make an absolute decree of divorce or nullity of marriage or make
a decree of judicial separation unless the court in its order has declared that it is satisfied that there are no
children – custody education and financial provisions – have been satisfactorily made. S. 18(5) defines a child
as under 16. If no declaration is contained in the order, the decree absolute shall be void. Whereas where such a
declaration has been made, no party can then challenge the validity of the decree on the ground that the
conditions were not fulfilled as per S. 18(3)of the MPPO.
 Timeline for Divorce
- File and serve the petition or application
- Mediation
- Form E – FDR – 28 days before the first appointment
- Form J – CDR – 14 days before the first appointment
- First appointment and or child dispute resolution (CDR)
- Decree nisi
- Adjourned the first appointment
- Financial dispute resolution (FDR)
- Trail or six weeks from decree nisi – decree absolute.
PLEASE SEE THE TABLE ON PAGE 119 to 121 for a table explanation.
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CH 7
MEDIATION AND COLLABORATIVE PRACTICE
 Introduction
As litigation is a process to settle disputes but there is a cost-efficient solution in the shape of alternate dispute
resolution and for family law, there are two main processes first one being mediation and the second
collaborative practice, such a resolution system is a flexible process, that is confidential in which a neutral
person assists the parties towards removing the dispute and reaching a decision. Both are considered interest-
based negotiation rather than position-based negotiation, this is to avoid one party win situation.
Collaborative practice / collaborative law in the family context is a legal process whereby a married couple who
has decided to separate and not stay married, through this they can avoid the cost of litigation.
 Mediation
The Mediation Ord aim is to promote and protect the confidential nature of mediation communication as per S.
3 of the Mediation Ord.
S. 4 (1) of the Mediation Ord defines mediation as a proper process that can be extended to a number of
sessions with one or more neutral individuals to identify the issue in dispute, explore and create options, make a
communication bridge, and try to reach an agreement in whole or part. Mediation is not counselling, arbitration,
legal advice, or unassisted negotiation. There is no common code of conduct, ethics, or practice prescribed for
mediators but the HK gov established the Working Group on Mediation which promulgated a model code
known as the Mediation Code.
There are four models of mediation, namely settlement, facilitative, therapeutic, and evaluative (Boulle in their
book).
Settlement model: the mediation is intended to encourage an incremental move toward a compromise.
Facilitative model: focuses on parties underlying needs and interests, including mutual interests;
Therapeutic model: concerns the underlying issues at the heart of the parties' dispute; and
Evaluative model: it identifies the range of settlement, in part relying on the expertise of the mediator to
evaluate the problem.
The mediator cannot reveal any of the mediation information to a third party without the consent of the parties
(S v T (2009).
 Role of Mediator
They help in resolving the dispute between the separated couple or specific issues for example who will get the
kids. The mediator will identify those issues that the parties are in a deadlock on and devise a way in resolving
them. The mediator must remain neutral and not construct any bias. Working with a couple, the mediator’s
substantive role includes discussion, understanding the wants of the parties, setting priorities, resolving
differences, and reinforcing their agreement.
 Pros and Cons of Mediation
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- Pros
Mediation saves time and money, it is flexible and it is less stressful as compared to the litigation system.
Everything agreed is approved upon the sign of the parties. Moreover, it provides a mutually satisfactory
outcome, has high compliance, is interest-based, perhaps less polarizing, and works to control escalation.
Privacy is also seen as an advantage of mediation as the proceedings are in private.
- Cons
Limitations of mediation are that there are no guaranteed outcomes, it may have an inadequate safeguard, in
some cases, there is a greater expense and significant use of resources, issues with enforceability, and the
unwillingness of both couples to corporate if no agreement time and money are wasted. Both the mediator and
the parties have the right to terminate the mediation at any time. In case of delay, the direction may be required
from the court hence defeating the speed and cost-effective purpose.
 Duty to mediate and costs
Court due to statutory law promotes mediate to relieve the burden on the courts and always the legal
representative has a duty to advise their clients about mediation. A failure to do so may result in adverse cost
order as seen in EL v CFL (2015).
 Family Mediation Process
The legal representative must advise their client of the possibility of adverse cost order if a party unreasonably
fails to engage in mediation. During the process application for direction can be made or for an interim stay in
order to avoid alienation. Natalie Cheung, A HK International Arbitration Centre, Accredited Mediator notes
that the reason for a pre-mediation conference include:-
- To help establish the mediator’s role as an independent, neutral party.
- To help facilitate the parties in dispute to achieve an amicable solution to the dispute.
- To check whether the agreement to mediate has been duly signed.
- To ensure that the proposition papers; summaries and chronologies of the dispute; information about the
parties, their positions and concerns; and previous settlement
- negotiations with reasons for the failure of such settlement negotiations, have been provided to the
mediator.
- To allow the mediator to clarify any matters in relation to the information provided.
- To allow the mediator to understand each party’s approach and concerns.
- To confirm the participants of the mediation and whether or not the attendees at the mediation have the
authority to negotiate a settlement and settle disputes.
- To help ensure the parties in dispute are willing to attempt mediation to resolve their disputes.
- To discuss the potential benefits of mediation.
- To overcome any possible reservations towards the mediation process.
- To ascertain whether there are any special needs of a party during the mediation (for example an
interpreter).
Cheung also advises that solicitors consider providing the following information to the mediator during the pre-
mediation conference to increase the possibility of a successful mediation:
i. The common issues of the parties in dispute;
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ii. what their client would like to achieve from mediation; and
iii. suggestions as to how to work towards the objectives of their client during the mediation process.
According to Cheung, the mediation process normally consists of the following sequence of events:
1. The mediator provides an opening statement, introducing himself, the parties, and the background of the case.
2. The parties present their views on the issues.
3. The mediator offers a summary, identifying the areas of agreement between the parties and setting out the
mediation agenda, i.e. the issues that still need to be resolved.
4. A joint meeting is held with all three parties to see if a resolution can be reached.
5. If the situation dictates, the mediator will meet with one party in private. This is called a caucus.
6. The mediator will then hold discussions with the other party in private.
7. If there is progress towards reaching an agreement, the mediator will call all parties together for another joint
meeting.
8. Further joint meetings and private meetings will continue until an agreement is reached, or one or more of the
parties decides to end the mediation.
9. If an agreement is reached, the mediator will ask legal representatives of the parties to draft a settlement
agreement.
After the opening statement of the mediator, the parties will give their own opening statement and may add
what they expect from the mediation process. Both parties will have an equal right to represent. After the
opening statement, the lawyers may add their legal perspective on the issue raised by their clients. If the right to
terminate the mediation is exercised the matter goes to the court as if the mediation never took place.
Generally, mediation is non-binding and without prejudice process, unless there is a settlement agreement
signed by the couple and presented to the court as a consent order. As per S.8 of the Mediation Ord. a person
must not disclose a mediation communication without the consent of the parties. As per S.8(3), S.9 and S.10(2)
of the Mediation Ord if the permission is granted by the court or the tribunal mediation communication can be
brought as evidence in the court.
 Collaborative Practice
Family disputes may be best resolved without resorting to more traditional adversarial proceedings. As noted at
the beginning of the chapter, the parties and their lawyers sign an agreement that commits them to try to resolve
the issues without resorting to litigation.
Unlike mediation, lawyers have a role in the negotiations and assist their clients, but unlike traditional lawyer-
driven negotiations, the parties are encouraged to take responsibility for the process and the outcome. Lawyers
must work ethically and co-operatively with each other to achieve a fair result.
Collaborative practice, whilst always subject to the normal legal and professional rules of conduct, requires no
more than a contractual agreement between trained professional representatives and the parties to act
collaboratively to resolve any particular family or matrimonial dispute. This agreement specifically precludes
the professionals (if not the parties) from entering into litigation should the dispute fail to be resolved. If they
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fail to resolve the dispute, then they are contractually prohibited from representing the parties in any future
litigation in court.
The agreement not to litigate, or more specifically, the agreement by all the professionals in the team to bar
themselves from litigating the conflict if matters have to go to court is central to the collaborative process. The
collaborative practice aims to build a settlement on areas of agreement rather than perpetuate disagreement.
Collaborative professionals agree to several procedural and behavioral requirements. For example, they try to:
- avoid the use of inflammatory language both written and spoken.
- focus on what is important to the parties
- conduct negotiations in a respectful, constructive and non-confrontational way;
- ensure that clients (and their lawyers) put the best interests of the children first;
- ensure the parties understand the benefit to children if parents can co-operate over their care and
upbringing rather than seek “access”, “custody” and “control”;
- ensure that all parties are open and honest in all dealings.
- retain professional objectivity and respect for everyone involved.
- consider the long-term consequences of actions and communications as well as the short-term
implications.
- keep financial and children-related issues separate.
- ensure flexibility and control, allowing parties to move at their own pace; and
- ensure that consideration is given to balancing the benefits of the agreement against the likely costs
(financial and emotional) of appointing a new team to conduct litigation.
This is by no means an exhaustive list. In a collaborative case, the parties strive to reach a fair settlement
through a series of meetings between the two parties and their lawyers and, if required, other neutral experts
including financial experts. The primary focus of these sessions is to identify the areas of dispute and help
create a settlement that is consistent with the parties’ priorities, goals, needs, and interests. In other words, each
party makes its own decisions based on its own priorities and not those set by the court or legal teams.
Collaborative practice does not take the jurisdiction away from the civil courts but rather avoids litigation if
possible. A collaborative agreement based on giving and take by both sides, the agreement is far less likely to
fall apart than a court-imposed order.
Clients and lawyers need to understand that collaborative practice is not necessarily cheaper than funding
litigation as it is by no means a straightforward process. It requires fully trained practitioners to make it an
effective alternative. Legal professionals in HK need to have a clear understanding of its benefits and
drawbacks, but they should also know that it is possible to voluntarily take this initiative if they so wish.
 Collaborative practice and children
Until very recently, courts have been minded keeping children at arm’s length in the adversarial process to
protect them from the often bitter and damaging fallout from parental disputes. Most damaging of all, in
custody and access disputes, young children are too often placed in the position of having to choose directly or
indirectly between parents (for example in social welfare reports) and are forced, in effect, to “take sides”.
Article 12 of the United Nations Convention on the Rights of the Child provides fundamental human rights to
children specifically, ranging from free view to judicial opportunity
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Collaborative practice centers on listening to children through their participation, depending on their age,
emotional maturity, and willingness to take part in the process where, as is often the case, there is an express
desire to be “heard”. Focus is always on child protection and, where the level of conflict between the parents
becomes heightened, often the child herself may choose a trusted person within the team to be a neutral
spokesperson on her behalf.
The role of this “neutral” child specialist is very different from that of the social welfare officer in litigated
custody and access battles, who is also responsible for assessing the parents as well as the child before making a
recommendation to the judge.
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CH 8
CHILDREN
 Introduction
Persons under the age of 18 are regarded as minors. In the eyes of the law, minors are treated as persons with
limited capacity. This means that, in many respects, the legal rights of a minor can only be exercised by the
minor’s guardian.
The United Nations Convention on the Rights of the Child 1989 (UNCRC), which HK has ratified, calls for
children to be granted several rights, including:
Article 3: best interests of the child shall be a primary consideration. The state is to provide adequate care when
the family fails to do so.
Article 6: every child has an inherent right to life.
Article 9: every child has a right to live with his parents unless that is incompatible with his best interests and a
right to maintain contact with both parents if separated from them.
Article 12: every child who is capable of forming her own view, is assured of a right to express those views
freely, the views of the child being given due weight according to age and maturity. For this purpose, the child
shall in particular be provided with the opportunity to be heard in any judicial and administrative proceedings
affecting them.
Article 18: both parents have the joint responsibility to bring up their children, and the state should support
them in this task.
 Legal meaning of Child
Under the Juvenile Offenders Ord (JOO), a child is defined as one under the age of 14, and young persons as
between the ages of 14 and 16. Under the Protection of Children and Juvenile Ordinance (PCJO), juveniles are
defined as between the ages of 14 and 18.
Under S.2 of the MPPO, a child concerning one or both parties to a marriage includes an extramarital child as
well as an adopted child of that party or, as the case may be, of both parties. The determination of who is a
child or a child of the family will have direct legal consequences in determining what rights attach to that child.
In terms of inheritance, S.2(1) of the Inheritance (Provision for Family and Dependants) Ord has a broad
definition of who constitutes a child, including:
- a child whose father and mother were not married to each other at the time of its birth;
- a child en ventre sa mere at the death of the deceased (Occleston v Fullalove (1874) and Watt v Rama
[1972]);
- a child of a union of concubinage.
- a child adopted in HK following Chinese law and custom before 1 January 1973.
 Rights and Duties of a Parent
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The rights and duties of a parent are inseparable and typically two faces of the same coin. In this respect, they
are often referred to as parental responsibilities. S. 3(1) of the UK’s Children Act defines parental responsibility
as encompassing “all rights, duties, powers, responsibilities, and authority which by law a parent of a child has
in relation to the child and his property”. The Australian Family Law Reform Act has a similar definition.
The full list of parental responsibilities might well be described as endless. However, the more important ones
are reflected in the UNCRC. Although this convention is directed primarily at the state, it mentions the
following duties that are partly or wholly the responsibility of parents:
- Protection of the child from discrimination.
- Protection and care are necessary for the well-being of the child.
- The child shall have the right to live and the parent shall ensure the well-being of the child
- The child shall have the right to a name.
Parents also have various rights and duties under common law (some of which may overlap with statutory
responsibilities). These include the right and/or duty to:
- Physical possession of the child.
- Contact with the child.
- Decide on the child’s education.
- Choose the child’s religion.
- Consent to medical treatment for the child.
- Consent to the child’s marriage.
- Choose the child’s surname and register the child’s birth.
- Consent to the child’s adoption.
- Discipline the child by inflicting moderate punishment.
- Administer the child’s property and contract on the child’s behalf.
- Appoint a guardian for the child.
- Bring legal proceedings in respect of the child.
- Apply for the child’s passport or arrange migration.
- Arrange a testamentary guardian.
Most of these responsibilities can be exercised by each parent independently from the other. However, although
the law does not always explicitly state this, in practice some responsibilities can only be exercised by both
parents jointly. For instance:
- Consent from both parents if the child is to be adopted.
- Consent of both parents before applying for medical treatment for serious illnesses.
- Both parents decide the kind of education a child will receive.
- The written consent of the parent is required before a child who is subject to a court order can be
removed from HK by the other parent.
If consent is not obtained from the other party in any of the above situations, the court can intervene and give
orders or directions for the exercise of these responsibilities. These parental responsibilities cannot be
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surrendered or transferred. If anything goes wrong, it is still the parent who may be held liable in a civil, or even
criminal, context.
On the other side of the coin, the parent has an endless list of rights, which are a mirror image of these
responsibilities. These include the right of a parent to decide how to bring up the children; exercise care and
control over them; determine their religious practice; and provide such food, shelter, and medical treatment as
the parent believes is in their child’s best interests.
The state, acting through either the Social Welfare Department or the courts, does not normally intervene in
how a parent exercises these rights. The English case of Re KD [1988] held that a natural parent is a right
person irrespective of their financial capacity or knowledge provided the child’s moral and physical health is
not endangered. However, the state or the courts may intervene via wardship proceedings if the child’s moral
and/or physical health is placed in danger.
 Custody, Care and Control, and Access

Custody is one of the most important rights regarding a child in any matrimonial lawsuit. The term custody is a
general term, consisting of three rights and/or duties: (1) custody; (2) care and control; and (3) access. Under the
MPPO, a court has wide powers to make orders concerning children of the parties to matrimonial lawsuits.
Orders can be made in any proceedings for divorce, nullity of marriage, or judicial separation. The orders can
be made before, by, or after the final decree for the relevant proceedings. Orders can even be made within a
reasonable period after the proceedings have been dismissed.
The orders that a court can make concerning a child under S.19 of the MPPO include:
1. Custody and education of the child.
2. Making the child a ward of the court.
3. Declaring either party to the proceeding unfit to have custody of the children of the family. Upon the death of
one parent, the other parent is not entitled to custody if a declaration has been made against this other parent.
4. Discharging or varying an Order or suspending any provision or reviving the operation of any provision so
suspended.
S. 19(7) of the MPPO, all these orders will cease to affect the child once she attains 18 years of age.
S.10 of the Guardianship of Minors Ord (GMO) is similar and states that the court may make orders regarding
(a) the custody of the minor and (b) the right of access to the minor by either parent as the court thinks fit
having regard to the welfare of the minor and to the conduct and wishes of the parents.
In other common law jurisdictions, there has been a shift away from an emphasis on the rights and authority of
each of the parents over their children and towards a more child-focused concept involving joint parental
responsibility. This newer approach emphasizes the obligations rather than the rights of the parents and stresses
the rights of the children to maintain a continuing relationship with both parents after divorce. The joint parental
responsibility model recognizes that, even if a couple divorces, if they have children they still have a joint
responsibility towards their welfare.
 Sole, joint, and split custody
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Custody comprises the bundle of rights that a parent or guardian possesses in the upbringing of a child. Custody
includes the right to “care and control” and the right to make all types of important decisions affecting the child,
such as decisions regarding his education, possible medical treatment, as well as the right to choose the child’s
religion. The difficulty is that the non-custodial parent may feel excluded. It was therefore held in Dipper v
Dipper [1980] that the non-custodial parent still has the right to be consulted on all matters affecting the
children. If he feels strongly about a particular issue, then the appropriate application may be made to the court
to clarify matters.
This was followed in the HK case of PD v KWW [2010] in which the court held that there is a thin line between
sole custody and joint custody. Joint custody is becoming increasingly common as social changes have provided
women with more financial and professional opportunities outside of the home while also recognizing a more
active role for fathers within the home. The traditional presumption that the mother should be granted sole
custody with the father granted access no longer holds sway. The more modern view is that both parents should
be granted custody jointly and both parents together should be involved in decisions concerning their children.
This approach also recognizes the children’s right to maintain a continuing relationship with both parents. The
court therefore will generally encourage joint custody unless there are justifiable reasons not to do so.
Accordingly, the issue for the judge is whether, with the court proceedings concluded, it is reasonably
anticipated that the parents will be able to agree on the questions of importance that will determine the
upbringing of their child, both recognizing that, as difficult as it may be for them, this process of co-operation is
in the best interests of the child. In determining this issue, the judge is entitled to proceed on the presumption
that competent, loving parents possessed sufficient objectivity to be able to make rational decisions in the
interests of the child will be able to co-operate with each other concerning matters of importance in the
upbringing of the child (ML v YJ HCMC)
Split custody is a court order whereby the custody of one or some children of the family is granted to one
parent, while the custody of the other children of the same family is granted to another parent. This form of
custody has the effect of splitting the children and is generally not viewed favourably. Hence, unless there is a
particularly strong or cogent reason to support such a custody arrangement, the court will not grant such an
order (C v C (1981).
The HK court in W v W [1981] noted that splitting up children of a family is inherently undesirable from the
point of view of their welfare and if reasonably possible should be avoided. In W’s case a split order was made
as the circumstances justified it and the best interests of the children were served.
 Care and control
Care and control is the right and/or duty that a parent or guardian possesses in the day-to-day life, protection,
and physical possession of the child. The parent who is granted care and control will be the one who usually
lives with the child. In PD v KWW above, held meaning of the concepts of custody and care and control is the
decision of safeguarding and promoting the child’s health, development, and general welfare.
 Access
Access is the right of the child to see the non-custodial parent. In divorce proceedings, if one party is granted
custody and care, and control, the other party may ask for access. In the case of joint custody, access means the
right of the child to see the parent without care and control. Access can be broken down into reasonable access
and defined access. The details in an order for reasonable access are left to the parents to work out between
them (PD v KWW)
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It is only in very exceptional circumstances that a parent will be denied access. Access will only be refused if it
offends the welfare of the child. In G v G (1981), a transsexual father was granted access to his daughter so
long as he dressed in a way that did not unduly confuse the child about her father’s present role and so long that
he did not bring along his friend who was posing as the father’s “husband”.
 The Welfare Principle
Article 3(1) of the UNCRC declares that the welfare (or best interests) of the child are of paramount
consideration. This is known as the welfare principle - sometimes called the best interests principle. As
explained by Poon J in H v N [2012] held that the change in terminology from ‘best interests’ to ‘welfare’ does
not affect the substance of the law. The expressions ‘welfare’ and ‘best interests’ are synonymous: Re B [1988].
The welfare principle is an implied obligation of the government under Article 24 of the ICCPR (see article 20
of the HK Bill of Rights) and has statutory force in private law matters concerning children through S.3(1)(a) of
the GMO.
In exercising its powers, such as the power to decide whether to make a decree absolute, the court must consider
what is in the best interests of the child. In other words, the welfare principle must reflect the best interests of
the child. “Best interests” has no single definition and will differ from one case to the next. Hence, the doctrine
of precedent has little impact in this area of the law. Best interests are not limited to monetary or material needs,
the minor’s physical well-being, or physical comfort, but encompass medical, moral, religious, and emotional
issues including her ties of affection and all other welfare issues (H and N [2012]).
At the same time, certain common factors will usually be considered by the court in deciding on what is in the
best interests of the child. One useful reference list of such factors, a so-called “welfare checklist”, can be found
in the UK Children Act 1989. This welfare checklist requires that a court shall have regard to:
1. The ascertainable wishes and feelings of the child concerned
2. The child’s physical, emotional and educational needs.
3. The likely effect on the child of any change in his circumstances.
4. The child’s age, sex, background, and any characteristics of his that the court considers relevant.
5. Any harm that the child has suffered or is at risk of suffering.
6. How capable each of the child’s parents, and any other person concerning whom the court considers the
question to be relevant is of meeting his needs.
The welfare list of course is only an aide-memoire and is not exhaustive. However, a failure to consider one or
more of the factors may provide grounds for appeal. Hence, the HK courts, in dealing with family matters, will
probably consider most, if not all, of the factors on this checklist in determining what is in the best interests of
the child before making any relevant order(s). What factors are relevant and what weight the court will give to
each of the relevant factors will depend on the facts of each case. These principles are applicable in a wide
variety of cases (Hospital Authority v Secretary for Justice [2011] involving the selective termination of
twins).
 Other Factors
Some other factors that the court considers are:-
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1. The ability to take care of the child
2. Character, wishes, and behaviour of the parents (W v W [2005]).
3. Age of the children
4. Siblings should stay together
5. Status quo: the court will try to keep the child’s present situation unchanged as far as possible, especially
where the child is happily settled in an environment.
6. Education and upbringing: the court will consider what is best for the child as pertains to the child’s
education and upbringing.
7. Health of the parties: the court will not usually grant custody to a party who needs special care and attention
because of poor health.
8. Wishes of the child: the court will take into consideration the wishes of the child, concerning her age and
understanding.
9. The court will also consider reports from the Social Welfare Department, social workers, schools, or hospitals
before making any decision.
The purpose of meeting with the judge is for the child to gain some understanding of what is going on in the
proceedings and to be reassured that the judge has understood her. Further, the court can order children to be
separately represented where a given set of circumstances appears
 Children’s Dispute Resolution
The children’s dispute resolution (CDR) procedure is very similar in that there is a preliminary hearing, i.e. the
“children’s appointment” (essentially directions hearing for the CDR), followed by a substantive hearing, i.e.
the CDR hearing. The CDR will be followed by a trial should it not be successful. In most cases the first stage
of the new process, the children’s appointment, will as a practical matter fall on the same date as the first
appointment to avoid multiple court appearances or, in urgent cases, even before that date. Thereafter, however,
the CDR will typically take place before the FDR because the potential liabilities and responsibilities of each
parent financially will generally be clearer to the parties and the court after the CDR has resolved where the
children are to reside and how much time each parent will have with the child or children.
As with FDR, the procedure for CDR is designed to promote settlement between the parties, a faster resolution
of the dispute, and a less complicated process. The judge adopts the role of settlement facilitator. Under the new
procedure, the court requires detailed information in respect of the children, their current arrangements, and the
proposed arrangements for their future. It puts the children firmly into focus and enables the parties and the
court to fulfil their obligations under the welfare principle contained in S.3(1) of the GMO, which states in the
court shall regard the best interests of the minor as the first and paramount consideration, and shall take into
account the child’s views.
 The significant difference between FDR and CDR
As set out in Practice Direction, whilst the same judge “will” conduct the CDR hearing and the FDR hearing at
separate hearings, unlike the FDR, a CDR hearing is not privileged and so the same judge may hear the child-
related matter at trial if settlement is not achieved. At an FDR hearing, the parties' offers and counter offers of
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settlement are all on a “without prejudice” basis. This means, in practice, that any trial judge would only be
made aware of any offers concerning the issue of costs at the end of any trial.
In a CDR hearing, all negotiations are deemed open and this difference was thought appropriate as the best
interests of the child could not be considered paramount if parents and their lawyers were afforded the legal
privilege of hiding behind without prejudice offers. However, given that both the FDR and CDR hearings are
meant to offer a relatively informal pre-trial mediation process – albeit one that is judge assisted – it is at least
arguable that the removal of privilege from the children’s dispute resolution process may (unlike private
mediation) actively promote caution and obstinacy.
 Effect of Practice Direction 15.13

A notice of children’s appointment is issued by the court (Form I, which is the equivalent of Form C in FDR)
notifying the parties of the date for the children’s appointment. This will notify the parties of their need to
provide to the court and the other side, within 14 days of the CDR, a children’s form in Form J and a concise
statement of issues. If the children’s appointment is not to be heard at the same time as the first appointment in
the FDR procedure, a brief chronology and list of directions and orders sought should also be prepared and filed
14 days before the CDR.
1. The children’s form
Form J is the substantive form for the CDR and is called the children’s form. As with Form E in FDR, both
parties must complete the form, exchange and file it in good time (14 days under this procedure) before the
children’s appointment. The parties must make full, frank, and clear disclosure of all relevant information and
circumstances and sign the statement of truth on the last page.
In addition to the usual details to be provided as to age, name, and gender, it contains detailed information on
the children’s current living arrangements. Details are also to be provided in respect of the children’s schooling,
including travel arrangements and what happens after school and how the children’s schooling is currently dealt
with, and how it will be dealt with in the future. Encourages the parents to think about matters they may not
have otherwise, such as how they propose to maintain communication with the other parent, or their friends and
other family members, and who will care for the children if they are not available.
2. The children’s appointment
At the children’s appointment, the judge will give directions as necessary for the further conduct of the CDR.
This includes directions to provide for the filing of a social welfare report or other expert reports; the filing of
limited affidavits by the parents or third parties; final or interim orders for custody and access; adjournment of
the matter for mediation, collaborative practice, or further negotiation; a direction that the parents attend
counselling or a parenting education program; and provision for the further conduct of the case, including fixing
a date for the CDR or trial as the case may be.
The judge can appoint separate representation for the child by appointing a guardian ad litem - the official
solicitor or such other fit person, if appropriate. In addition, where a child has indicated that he would like to see
the judge, or if the judge deems it appropriate, she can direct that a judicial interview take place. The
recognition that children have a voice and can be heard is written into the CDR process and is believed by many
to be an important step in enabling children the right to speak frankly to a judge and have the judge indicate to
parents how their children feel, in a controlled environment.
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3. The children’s dispute resolution hearing
Once a date has been given for the CDR, a notice in Form K will be issued by the court. A detailed statement of
proposals relating to the future arrangements for the children must be filed and simultaneously exchanged with
the other side no later than 14 days prior to the CDR. Both parties must attend the CDR as must the social
welfare officer and other witnesses and experts if so directed at the children’s appointment. The judge acts as a
conciliator and can address the parties directly. The parties are expected to use their best efforts to reach an
agreement and the CDR may be adjourned from time to time to assist in settlement negotiations. As with the
FDR, if settlement is not achieved at the CDR, the matter will proceed to trial in the usual way.
 Moving forward
The new procedure reflects an attempt by the Family Court in K to bring a more conciliatory approach to
dispute resolution in cases relating to children. It is believed that it is in the best interests of children to ensure
that the separation of their parents has the minimum possible impact. The children’s form encourages the
parents to think about the arrangements for their children, both current and in the future and prepares them for
the desired result – a parenting plan that both parties and the children can abide by with a minimum of upset and
frustration.
This less formal approach in court may encourage the parents to communicate better with each other for the
future benefit of their children and the mediation-based environment should discourage the parties from taking
less adversarial positions.
By shortening the time in which the matter comes to court, which it is hoped the strict timetable will do,
disputes concerning children may be less likely to run for months or years, creating uncertainty and potentially
long-term damage to the child. And providing children with a voice has now been given a place in HK family
law procedure.
 Removal from HK and Abduction of Children
Rule 94(1) of the MCR says: “An application for leave to remove a child permanently out of HK shall be made
to a judge unless the application is unopposed, in which case it may be made to the registrar”.
Rule 94(2) of the MCR states: “A petitioner or respondent, or in case of a joint application, either of the joint
applicants concerned may apply at any time for an order prohibiting the removal of any child of the family
under 18 out of HK or out of the custody, care or control of any person named in the application without the
leave of the court except on such terms as may be specified in the order.
A Rule 94 application to prevent the removal of a child from the jurisdiction is effective without the leave of the
court. Once the order is obtained, the Department of Immigration is notified and a stop order is entered into the
computer system covering all lawful points of entry and exit from HK.
The application is made by summons supported by an affidavit. The summons must specify the children who
are affected by the application, and the relief sought from the court. After granting of an ex parte order, the
parties must return to court for the inter parties hearing, with an affidavit in support by the other party if there is
an application to lift the order. The court will then enter an order. The applicable principles governing
relocation applications are based on the case of Payne v Payne [2001] :
(a) The welfare of the child is important.
(b) There is no presumption … in favour of the applicant's parent.
Page 31 of 33
(c) The reasonable proposals of the parent with a residence order wishing to live abroad carry great weight.
(d) the court needs to be satisfied that there is a genuine motivation for the move and not the intention to bring
contact between the child and the other parent to an end.
(e) The applicant parent and the new family of the child of a refusal of leave is very important.
(f) The child of the denial of contact with the other parent and in some cases his family is very important.
(g) The opportunity for continuing contact between the child and the parent left behind may be very significant.
These principles have been applied in HK ( M v B, MJP v JWP and JHCI v MSYI).
 Convention on the Civil Aspects of International Child Abduction (CCAICA)
The CCAICA is also known as the Hague Abduction Convention, is a multilateral treaty concluded in 1980 that
provides an expeditious procedure for the return of a child that has been internationally abducted by a parent
from one member country to another.
Have resolved to conclude a Convention to this effect, and have agreed upon the following provisions:
Article 1: wrongful removal or retention of a child
Article 3: situations where it would be unlawful to remove a child from the custody
Article 4: child habitually resident in a Contracting State immediately before any breach of custody or access
rights. The Convention shall cease to apply when the child attains the age of 16 years.
Article 5: defines the right of custody and access
Article 7: role and actions of central authorities to find the child and protect them
Article 8: any person, institution, or other body claiming that a child has been removed or retained in breach of
custody rights may apply either to the Central Authority of the child’s habitual residence or to the Central
Authority of any other Contracting State for assistance in securing the return of the child.
Article 12: Where a child has been wrongfully removed or retained in terms of Article 3 and, at the date of the
commencement of the proceedings before the judicial or administrative authority of the Contracting State where
the child is, a period of less than one year has elapsed from the date of the wrongful removal or retention, the
authority concerned shall order the return of the child forthwith.
Article 13: the judicial or administrative authority of the requested State is not bound to order the return of the
child if the person, institution or other body. The judicial or administrative authority may also refuse to order
the return of the child if it finds that the child objects to being returned and has attained an age and degree of
maturity at which it is appropriate to take account of its views. In considering the circumstances referred to in
this Article, the judicial and administrative authorities shall take into account the information relating to the
social background of the child provided by the Central Authority or other competent authority of the child’s
habitual residence.
Article 20: The return of the child under the provisions of Article 12 may be refused if this would not be
permitted by the fundamental principles of the requested State relating to the protection of human rights and
fundamental freedoms.
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While we will not cover in detail the case law and legal authority as it relates to abduction, the following article,
and list of cases might be of interest:
Katy Chokowry, Habitual Residence and Joinder in Child Abduction Cases: The Supreme
Court’s judgment in LC (Children), January 2014 (provides a review of recent UK decisions)
In the Matter of A (Children) (AP) [2013]
ZA and Anor v NA [2012]
Y v M HCMP
MvM
BLW v BWL [2007]
LM v HTS [2001
K v K HCMP
SC v LW [2004]
AC v AS [2002]
Cannon v Cannon [2004]
KvK
LvW
N v O [1999]
Re C (Abduction Settlement) [2005]
AC v PC HCMP
Re L [2004] 1 HKLRD 655; [2003]
Re M and Anor (Children) [2007]
S (a Child) [2012]
ML v YJ [2008]
Page 33 of 33

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Family Law & Matrimonial Practice Notes

 Who is entitled to marry in HK

Legal Remedies for Matrimonial Wrong

 Legal Grounds for Divorce

The courts in HK have jurisdiction in a divorce proceeding if:

i) Either party has an HK domicile (treats HK as a permanent home)

Five Facts for Divorce

 Rights and Duties of a Parent

 Custody, Care and Control, and Access

 Effect of Practice Direction 15.13

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