Once children’s issues are resolved by the Court, the next step is to deal with the finances. This is called “ancillary relief” (or in American lingo, alimony & child support). First and foremost, it is important to understand that there is no mathematical formula for the division of matrimonial assets in Hong Kong given there are a vast array of factors to make a determination. The Court is also guided by the principle of fairness and to prohibit any discrimination on the grounds of gender or domestic roles.
As discussed in our previous newsletter, a child’s interest continues to be paramount interest and the same applies in ancillary relief. In other words, the needs of the child must be provided for before the Court considers the parties’ needs. By way of a classic example, a housewife who has been taking care of the child would require more financial assistance than the husband who has continuously worked throughout the marriage. Therefore, the parties’ needs are also a consideration the Court will take into account to determine the division of matrimonial assets.
Once the needs have been satisfied, all the circumstances of the case will be considered by the Court whilst bearing in mind the following factors:-
- 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;
- the financial needs, obligations and responsibilities that each spouse has or is likely to have in the foreseeable future;
- the standard of living enjoyed by the family during the marriage;
- the age of each parties to the marriage and the duration of the marriage;
- any physical or mental disability of either of the parties to the marriage;
- the contributions made by each of the parties to the welfare of the family;
- the value to either of the parties of any benefit lost as a result of the dissolution of the marriage, for example, a Pension.
Obviously, the list is not exhaustive and each case depends on its own unique factual matrices. Moreover, the Court cannot make those determinations if financial assets are not disclosed in a full and frank manner. Therefore, it is important to also understand that lawyers cannot provide proper advice without fully canvassing your assets. Similarly, the procedure taken by the Court is to require the parties to file a detailed financial statement (commonly known as the Form E) to provide a full overview of their finances. The Form E would require the production of bank statements, credit card statements and other financial documents going back sometimes for more than a year.
Once financial disclosure is completed, the Court has the power to make orders for financial provisions, such as:-
- Periodical payments;
- Secured Periodical payments;
- Lump sum;
- Transfer or settlement or property;
- Variation of settlement; and
- Sale of property.
As above reliefs are unique in nature, we would suggest parties to consult lawyers before considering binding themselves to a Court Order with these financial terms.
Please feel free to contact us at enquiry@hksunlawyers.com for further enquiries.
