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Family Law

This concerns the way in which the law defines, constructs and regulates the family and familial relations. Marriage, relationships with partners, domestic violence, divorce, children and parent relationships, child protection, child support, adoption and family dispute resolution are examples of this area of law.

Divorce

The Law governing divorce is to be found in s.11 Matrimonial Causes Ordinance (MCO) which provides two ways to obtain a divorce: by way of petition or by joint application.

S.11 states five grounds of petition:-

  1. That the respondent has committed adultery;
  2. That the respondent has behaved in such a way that the petitioner cannot reasonably live with him/her;
  3. That the parties have lived apart for one year with consent;
  4. That the parties have lived apart for two years;
  5. That the respondent has deserted the petitioner for one year.

Maintenance

The maintenance of a husband or a wife is governed by the Separation and Maintenance Orders Ordinance.

There are 8 grounds for application of maintenance under the Ordinance:-

  1. A conviction of an assault upon the other party to the marriage summarily;
  2. A conviction on indictment of an assault upon the other party;
  3. Desertion to the other party;
  4. Being guilty of persistent cruelty to the other party;
  5. Failing to provide reasonable maintenance;
  6. Suffering from a venereal disease;
  7. Compelling the other party to submit to prostitution;
  8. Is a drunkard or drug addict.

Under s5(1), the District Court may make the following orders:

  1. A non-cohabitation order;
  2. Legal custody of any children of the marriage;
  3. A party to a marriage to pay to the other party lump sum or periodical payments for liabilities or expenses;
  4. A lump sum payments for the maintenance and education of a child.

The court will dismiss the petition if the respondent can satisfy the court that the marriage has not broken down irretrievably.

Division of property

The court, during the petition for divorce, has to consider the following matters:

  1. The income, earning capacity, property and other financial resources which each of the parties to the marriage has, or is likely to have in the foreseeable future;
  2. The financial needs, obligations and responsibilities which each of the parties to the marriage has or is likely to have in the foreseeable future;
  3. The age of each party to the marriage and the duration of the marriage;
  4. Any physical or mental disability of either of the parties to the marriage;
  5. The standard of living enjoyed by the family before the breakdown of the marriage;
  6. The contributions made by each of the parties to the welfare of the family including any contribution made by looking after the home or caring for the family.

Custody of children

Custody of a child can be made if under 18 (or who is under 21 but on full-time education)

A mother shall have the same rights and authority as the law allows to a father and the rights and authority of mother and father shall have equal and be exercisable by either without the other.

The principles affecting the award of custody are as follows:

  1. The wishes of the natural parents
  2. The physical, emotional and educational needs of the child
  3. Chinese tradition
  4. The conduct of the parents
  5. The child's own wishes
  6. A parent's social practices and religious beliefs
  7. Harm or the risk of harm to the child

If you are having family issues and would like our advice. Please ask a question within the family law discussion forum.