STOP PRESS
Save the Date – Hong Kong Family Law Conference. 25th – 27th April 2019
Sir Nicholas Mostyn J, Richard Todd QC, Anthony Douglas CBE (CAFCASS),
Elizabeth Clarke
More details to follow
Hotten & Ho On Family & Divorce Law in Hong Kong
(Vol 4 should be available sometime after Easter 2019)
“The snag in this business of falling in love, aged relative, is that the parties of the first part so often get mixed up with the wrong parties of the second part, robbed of their cooler judgement by the party of the second part’s glamour. Put it like this: the male sex is divided into rabbits and non-rabbits and the female sex into dashers and dormice, and the trouble is that the male rabbit has a way of getting attracted by the female dasher (who would be fine for the non-rabbit) and realizing too late that he ought to have been concentrating on some mild, gentle dormouse with whom he could settle down peacefully and nibble lettuce.”
P.G. Wodehouse, How Right You Are, JeevesHaving written and edited a number of legal text books on criminal and matrimonial law, I am painfully aware of their limitations. Most obviously, legal texts and commentaries become out of date almost as soon as they are published and very few contain any valuable exegesis and certainly little reliable content within a year or two of publication. The traditional method of avoiding this has been to offer a ‘loose-leaf’ publication with regular updates together with an on-line version. “Hotten & Ho On Family Law & Divorce in Hong Kong” LexisNexis (photo above) now fulfils this niche.
My notes here of course have a more modest aim but I hope this electronic palimpsest will go some way to fill the present gap for students and some legal professionals and all those who have ceased to be content nibbling a lettuce with their current partners. Obviously this is an ongoing project and it is my intention to edit and add to the site daily, weekly or as often as necessary, in order to keep it up to date and to add items of interest. In this sense, like a loose-leaf publication, this is a manuscript in which old writing will be rubbed out to make room for the new. Clearly the site is far from complete but I will update and enlarge this site as time allows.
Needless to say nothing written here should be regarded in any way a substitute for taking independent, professional legal advice on any proposed divorce or collateral matrimonial litigation. In this sense the main chapters on the site are no more than on-line family law ‘text-book’ chapters offering explanation, exposition and reference on the law relating to matrimonial breakdown and the practice and procedures of the courts. Of course, as with any legal text, any views expressed are my own. Others may choose to disagree with how I see the law operating in practice in this area. However, whilst I have quite deliberately set out to free the text of footnotes and the dusty constraints required of academic publishing, I have nevertheless tried to write accurately on family law in Hong Kong and I have applied the same standard of writing here as I have in my printed books.
Law is not a science and lawyers disagree on approaches and likely outcomes – indeed the courts themselves often see things differently as is regularly evidenced by the different views taken at first instance, the Court of Appeal and the Court of Final Appeal. Except at an elementary level no solicitor or barrister can possibly predict how a court will proceed on any given facts – a reminder perhaps of why pre-trial Mediation, FDR and now CDR, remain the only opportunities for husbands and wives to end hostilities on terms they can write themselves rather than have a judge impose those terms in a court Order.
There are exceptional lawyers of course, just as there are exceptional doctors – and it is often said of barristers in particular that he or she must have an ability to make bricks out of straw – but this is not to deny that almost every battle is ‘won’ and ‘lost’ on the unique facts of a particular case and any lawyer (or doctor) who claimed otherwise would be being somewhat disingenuous. No lawyer can remedy that which is irremediable or refute evidence which is irrefutable. Lawyers who appear to offer only sunshine advice unleavened by a generous measure of caution and common sense, in most cases, ought to be avoided. Certainly in family law, the best lawyer is often the one who has the ability to settle a case long before it goes to trial. But law is also about new ideas and (often heated) argument and I hope – as it builds over the coming months – that this text will go some way to helping students – and possibly even some practitioners – avoid being locked into structures of thought that deny the full benefits of a wider knowledge of the law.
The various chapters and sub-chapters in the drop-down menus are, I hope, easily navigable and self-evident as to their subject matter. Whilst statute law is obviously more static than case law, it is my intention to keep the authorities up-to-date as well as editing and re-writing each section as and when the need arises.
Cohabitees
Contrary to popular belief there is no such thing a ‘common law marriage’ neither, regrettably, are lawful civil partnerships recognised in Hong Kong. The infantile refusal of the Hong Kong government even to contemplate reform of the law to recognise civil partnerships (save where forced to, for example, in Director of Immigration v QT [2018] 4 HKC 403), is evidence of a parochial political mindset that belies the hyperbole of Hong Kong as ‘Asia’s World City’. That said in a region not exactly filled with politicians sporting Judy Garland on their iPods, my guess is – as with equality before the law regarding the age of consent in Leung T C William Roy v. Secretary for Justice [2006] HKCA 360; [2006] 4 HKLRD 211; CACV 317/2005 (20 September 2006) or transgender rights as in W v Registrar of Marriages (2013) 16 HKCFAR 112 – Hong Kong is likely to be one of the first to move the political agenda forward. In such cases trusts law will apply and those heterosexual couples who are living together, or in long term same-sex relationships should look at Chapter 12 on cohabitation. Those who are otherwise lawfully married but in civil partnerships, should do likewise or consider starting proceedings in the forum where their civil partnerships were entered into.
PCLL and JD Students
Readers will find some of the chapters on this site password protected. This is because these contain lectures and materials for use by my post-graduate students in matrimonial and criminal law who – being the cream of the crop in Hong Kong and having achieved the very highest marks as undergraduates – have been admitted to the PCLL or JD programmes in the Faculty of Law at the University of Hong Kong. The PCLL is a professional course and is compulsory for those suitably qualified graduates who intend to go into practice either as solicitors or barristers. The JD programme will qualify non-law graduates to enter the PCLL. Needless to say the most talented, hard-working and, most importantly, least boring amongst these delightful people, have had the undeniable good sense to sign up for my courses in criminal and family law, in particular the Matrimonial Practice & Procedure on the PCLL This site is for them.
Help
Keeping up to date on the law is a full-time job for any practitioner or academic and I cannot guarantee to be immediately on top of every latest pronouncement by government or the Court of Appeal. However, I will do my best to keep this site current and to this end I would be most grateful to be told if users spot any glaring errors, irritating typos or who may wish to make suggestions or observations on the content. Any corrections or suggestions however small – including notice of any hot-links that fail – will be gratefully received. Please e-mail me using the ‘Contact’ drop-down.
Author’s Rights
Although I claim copyright over the authorship of this website and my own written work on it, in the best traditions of the internet as well as good manners, I will try to ensure that where I have referenced any information that is publicly available on the web it is credited and where possible ‘hot-linked’ to its web source. Whilst the writing here is free of footnotes – the hot-links more often than not act as footnotes – most of the writing is nevertheless my own work and I trust that users of this site will show similar courtesy when referring to it.
F & A – always my raison d’être and Y, C & K – continued inspiration.
Copyright © Keith Hotten 2019 all rights reserved.
Nothing published on this website should be viewed in anyway as a substitute for taking independent, professional, legal advice
Any information contained on this site, just as with any printed law book, is provided for general guidance and educational purposes only. Nothing on this website should be construed as legal advice and the author accepts no responsibility for any loss or damage which may arise from reliance on any of the information contained herein.
Unauthorized copying, reproduction, modification or adaptation of any part of this website is prohibited. This website contains copyrighted materials with acknowledgements to the respective author(s) according to the fair dealing practice under the Copyright Ordinance Cap 528.
Lord Sumption, in my view, wins the argument, but loses the vote – an excellent debate.
