marriage including whether there was
property owned by one party before
or during the marriage, how it was
paid for and whether there were gifts
and inheritances. Courts will also
look at the family’s standard of living,
the parties’ age, earning capacity and
any disabilities and obligations which
should be taken into account. Account
will also be taken if one party has
made sacrifices in order to care for the
children or moved countries for the
other party's career, to the detriment
of their own earning capacity.
You should know yourself what
the marriage assets are before you
commence proceedings. Many parties
do not know what assets are owned
in the marriage or what the other
party is earning. Finding out what is
available during the process is time-
consuming and expensive. Many
people try to hide their assets from
the family court, but the courts have
little tolerance for it. Recent cases have
shown that dishonesty about assets
can result in the overturning of a final
result, even one reached by consent,
and the process has to start all over
again. It really is not worth it.
Caring for children
When dealing with children, Hong
Kong still uses the old terminology of
custody, care and control and access
– language which suggests a winner
Resources
•
For more information on legal
issues, visit the Law Society
of Hong Kong website:
• Philippa Hewitt is a
professional support lawyer at
Withers international law firm.
and a loser parent. Hopefully this will
change soon, but in the meantime the
court always has the welfare of the
child as its paramount consideration.
This means that normally there will
be a reasonable time for each parent
to spend with their children after
separation: not necessarily ‘equal
time’, but a timetable which suits
the children, their schooling, extra-
curricular activities and ample time
with each parent, including down
time – not just homework time, but
the fun time at the weekend as well.
Generally holidays are split equally
or alternately. Even if there is an
order for sole custody to one parent,
the other parent still has a say in
the important things in the child’s
life, such as where the children are
educated, and religious and health
matters. Every parent of a child will
have the right to be heard, whether or
not they have custody.
Relocation?
Divorce and separation can be much
more difficult where one party wants
to leave Hong Kong with the children.
‘Removal applications’ are some of
the hardest in family law, but they are
common in Hong Kong where there
are so many expatriates. If you are a
trailing spouse, who only moved here
for your spouse’s work, you might want
to go home if the marriage breaks
down. It is possible to move away,
but you should try to do so with the
consent of the other parent. It is a bad
idea to just leave – under international
law, you and the children could be
forced back to Hong Kong. If you
cannot get the other parent’s consent,
you must make an application to the
court and make your case as to why it
is in the children’s best interest to go.
If you are in Hong Kong on a
dependent’s visa, you might have the
added problem that after divorce,
your visa will expire. You could avoid
this if you have applied for – and
been granted – permanent residency
(PR), (if you have lived in Hong Kong
continuously for more than seven
years) or if you can independently
remain, for example by obtaining a
work visa. If you are close to the seven
years, it may be worth deferring your
decision to divorce until you have
obtained PR to have more options
available to you.
Divorcing your partner may be
the hardest thing you ever have to do.
Do not underestimate the emotional
rollercoaster which is inevitable, even
in the least acrimonious divorces.
Remember to think about what is best
for you and your children – and your
other half – in the long run. Hopefully,
life is long and there may be many
family get-togethers in future which
will necessitate contact with your ex.
If you need emotional support it is
best to seek help from a psychologist:
divorce is a legal process and requires
a clear head and professional advice. It
would be wise to get the right advice at
the right time.
February 2016
59
