In our most recent video, our Mr. Szeto has made a light-hearted remark that “marriage is casual business, divorce is serious business” (“結婚求其，離婚認真”), this is unfortunately accurate and real. In this part series, we will discuss the need for our clients to consider the serious nature of a divorce.
By way another example, let us suppose a couple in Hong Kong detailed below who were married four years ago and has lived in Hong Kong for about a decade. After one year of marriage, the couple gave birth to children. Unfortunately due to irreconcilable differences in their marriage, they have now decided to part ways and initiate divorce proceedings in Hong Kong.
Custody contains various rights a parents have over their children, which encompasses custody (sole or joint), care and control, and access. Divorcing couples often believe they have to fight for custody and there is also a common misconception that parents should “secure” sole custody of their children. However, the difference of sole and joint custody is now academic as sole custody does not equate to making unilateral decisions over the children. Thus, it would be encouraging of parents to endeavour to achieve joint custody to avoid further escalation of time and costs, if a high level of co-operation between them is present. In any event, the paramount interest of the children will be prioritized before the Court and parents should be reminded of this view of the Court when presenting their proposals for the children’s care arrangements.
Once custody is agreed, the next step is deciding the care and control of the children.
“Care and control” simply means the day to day care of the children. In an amicable co-parenting relationship, this can be done in a joint effort where the Court may order “joint care and control”, allowing the children to spend an equal time with both parents. Otherwise, care and control would be granted to one of the parents and the non-custodial parent would be given “access” to the children.
For access arrangements, the ideal situation is for the parents to be flexible and consent to a fair visit to the children by the non-custodial parent. If agreement cannot be reached, then the Court’s involvement will be necessary to facilitate access. As the children gets older, more weight would be given to their views for the Court to determine their custody, care and control, and access.
Separately, if the parents are considering relocating out of Hong Kong, it is important to understand that if either parent wants to take the children away from this jurisdiction, the other parent’s consent must be given. If there is no consent, one of the parents will be required to apply to the Court for approval to take the children from Hong Kong.
Once children’s issues are settled, the next step is dealing with the issue of ancillary relief (finances of the family) and we shall touch upon this topic in our next release.
Please feel free to contact us at enquiry@hksunlawyers.com for further enquiries.
