Family Law Update: 2015 Review and 2016 Forecast

To get an overview of the major family law-related developments in 2015 and a prediction of how the landscape might shift in 2016, Hong Kong Lawyer reached out to family law practitioner, Sindy Wong, Associate and Collaborative Practitioner of Withers in Hong Kong.

2015 Review

By far the biggest news of the year was the announcement that Hong Kong is to have a new ordinance codifying our law in relation to children. While this may take some time to develop into a workable bill and, of course, become hard law, this is a significant leap forward for children (and those who act in relation to them) in Hong Kong.  The public consultation on the Children Proceedings (Parental Responsibility) Bill (the “Children Bill”) commenced in November 2015 and will end in March 2016. The Labour and Welfare Bureau intends that the Children Bill will provide a statutory basis for a parental responsibility model in order to ensure that the best interests of children will be the key principle in all proceedings concerning children.

Another significant development was the Chief Justice of the Court of Final Appeal's acceptance of the recommendations made by the Working Party on Family Procedure Rules in its Final Report, which seeks to adopt a single set of procedural rules for Hong Kong's family justice system.  At the moment, procedural rules for family or children-related matters are scattered across several different ordinances, which is confusing and lacuna-prone.  It will, however, take some time for the necessary legislation to come through implementing the recommendations made by the Working Party. We all look forward to that.

In addition to the legislature, the judiciary also made its mark, developing the law in relation to children's interests in cross-border disputes, examining the Guardianship of Minors Ordinance (“GMO”) (Cap. 13) and the Child’s Objection Defence under Art. 13 of the Hague Convention.

In QMY v GSS [2015] 4 HKLRD 641 (CACV 68/2014), the Court of Appeal confirmed that it has inherent jurisdiction over children, which may be exercised beyond its territorial limits.  An unmarried parent that is not an ordinary resident of Hong Kong may invoke the jurisdiction of the Hong Kong Court under the GMO to make orders regarding the custody and right of access to the child when the child, though a permanent resident of Hong Kong, is not residing or present in Hong Kong. However, the Court noted that this jurisdiction should be exercised sparingly, taking the child’s welfare and the Court’s familiarity with the child’s living, education and medical expenses into consideration.  In the circumstances of the case, the Court declined to exercise its jurisdiction over the child.

Further, in LCYP v JEK [2015] HKCA 407 (CACV 98/2015), the Court of Appeal reviewed the law on habitual residence under the Hague Convention, essentially following the UK, Canada, and most of the world.  In obiter, this case also demonstrates that, in Hague cases concerning unlawful removal of a child, it is appropriate for the court to take into account the wishes of the children. While the place of the children’s habitual residence (as decided by the Court) is determinative on whether there has been a wrongful retention and engagement of the Hague Convention, the Court will also consider whether the children object to being returned to the country of habitual residence, in order to establish the Child’s Objection Defence under Art. 13 of the Hague Convention.  

Looking Ahead to 2016

Given the on-going public consultation on the Children Bill, one of the anticipated highlights is the substitution of the current concept of "guardianship" with “parental responsibility”. With this change, the terminology will shift from "custody" to "responsibility" and will remind divorcing couples that custody does not denote a "win" or ownership on their part, but rather that they are obliged by the law to act in the best interest of their children.  

In terms of the finances of divorcing couples, legal advisors are still facing uncertainty regarding the use of prenuptial agreements. In SPH v SA (2014) 17 HKCFAR 364, the Court of Final Appeal gave the green light to such agreements, though with some reservations. But in B, L v K, WS [2015] HKFAMC 71, the court did not follow the prenuptial agreement signed by the parties and, instead, made its own financial orders as to maintenance pending suit and litigation funding. Fundamentally, the court considered the prenuptial agreement was subject to real challenges for being unfair. As more cases are considered by the court, hopefully some uniformity of position will emerge, giving legal advisors clearer guidance as to how the court will treat prenuptial agreements.

It is also worth watching to see how recent landmark cases in the English courts may influence Hong Kong jurisprudence on the overturning of consent orders by way of financial settlement in divorce proceedings. The two UK Supreme Court cases of Gohil v Gohil [2015] UKSC 61 and Sharland v Sharland [2015] UKSC 60 confirmed that if a party can establish that entry into the consent order was predicated on a fraud by the other, the court will find a way for the consent order to be set aside, whether in the existing divorce proceedings or by way of fresh action. It remains to be seen whether the leading authority in Hong Kong of WTM v LNCA [2012] HKFLR 159 (by which applications can only be brought by way of appeal or fresh action) will prevail, or the Hong Kong court will follow the British lead.

Jurisdictions: 

Withers, Associate, Collaborative Practitioner

Withers, Trainee Solicitor

Withers, Trainee Solicitor