problems into the mix? What if the
parties are not from Hong Kong, and
what if they live part of the time in
Hong Kong and part of the time in the
PRC, England, Australia or another
jurisdiction? These issues come up
all the time in family law in Hong Kong
and can be particularly difficult if one
parent wants to leave the jurisdiction.
As mentioned above, the court retains
inherent jurisdiction over children in
Hong Kong and therefore even the
children of unmarried parents cannot
be removed against the will of either
parent. Regarding financial claims for
child support, recently there was a case
where the court declined to make an
order for a child of unmarried parents
who lived full time in the PRC. Here,
the court deemed that the child would
be sufficiently protected financially,
although the child had been born in
Hong Kong.
If you do not wish to marry or
remarry, you could instead draw up a
cohabitation agreement, setting out
all of the terms which you would like
a court to take into account should
the relationship break down. These
have the force of contract but are not
particularly helpful when it comes to
rights concerning children. The ‘best
interest’ principle will always guide the
courts in respect of children. If there are
jurisdictional issues, this is advisable as
conflicts involving other countries can
be complicated and expensive.
It is also worth considering
prenuptial agreements, or 'prenups'
in which parties agree what should
happen in the unhappy event of a
marital breakdown. Although they used
to be viewed as unromantic, the fact
that more and more people are making
them has certainly reduced the stigma
attached to them. At the end of the
day, a prenup is like an insurance policy
which you hope you never have to use.
Such agreements only deal with the
financial division following a divorce,
and do not deal with custody. Still, they
do usually contain a clause providing
that, if the marriage comes to an end,
both parties will do their best to settle
issues in respect of children amicably,
and provide for this to be done by
mediation or arbitration.
Prenups are designed to make
the process of divorce more straight
forward by agreeing to matters in
advance. One of the primary reasons
for agreeing to a prenup these days
is to protect the financial interests of
children from a previous marriage.
Many parties are unwilling to tie the
knot because they fear that they may
disinherit their children from a previous
marriage. Prenups can be an effective
way to ‘ring fence’ assets; although they
are not strictly enforced in Hong Kong,
significant weight is given to them.
So, if you are considering marriage,
from a legal point of view, in Hong Kong
it is certainly worthwhile. If this is your
second time around, or even if it’s your
first, get a prenup and get married. If
you do not wish to tie the knot, at least
get a cohabitation agreement in place.
Rita Ku is a partner at law firm Withers.
Philippa Hewitt is a professional
support lawyer at the firm.
/
hong-kong
September 2016
67
