Page under construction
Maintenance for a Child of the Marriage
The jurisdiction of the court to make orders for the financial support of children is found in section 5 of the Matrimonial Property and Proceedings Ordinance (Cap 192) -MPPO. However, unlike spousal maintenance, the court has wide discretion to allow maintenance for children at anytime prior to the decree or even if the proceedings are dismissed.
By section 5(1) Subject to the provisions of section 10, in proceedings for divorce, nullity of marriage or judicial separation, the court may make any one or more of the orders mentioned in subsection 5(2) – (a) before or on granting the decree of divorce, of nullity of marriage or of judicial separation, as the case may be, or at any time thereafter; (b) where any such proceedings are dismissed after the beginning of the trial, either forthwith or within a reasonable period after the dismissal. The orders in section 5(2) include periodic payments, secure periodic payments and any lumpsum.
In the case of a child (under 18) of the family in matrimonial proceedings – section 7(2) MPPO sets out the factors to which this Court shall have regard in exercising its discretion in making financial orders for the child. – [For Child Maintenance where the parents are unmarried see here.]
Section 7(2) Without prejudice to subsection (3), it shall be the duty of the court in deciding whether to exercise its powers under section 5, 6 or 6A in relation to a child of the family and, if so, in what manner, to have regard to all the circumstances of the case including the following matters, that is to say –
(a) the financial needs of the child;
(b) the income, earning capacity (if any), property and other financial resources of the child;
(c) any physical or mental disability of the child;
(d) the standard of living enjoyed by the family before the breakdown of the marriage;
(e) the manner in which he was being and in which the parties to the marriage expected him to be educated –
and so to exercise those powers as to place the child, so far as it is practicable and, having regard to the considerations mentioned in relation to the parties to the marriage in paragraphs (a) and (b) of subsection (1), just to do so, in the financial position in which the child would have been if the marriage had not broken down and each of those parties had properly discharged his or her financial obligations and responsibilities towards him. According to section 7(2) of the MPPO, the court has the duty to consider the matters mentioned in section 7(1) (a) and (b) when exercising those powers relating to the children.
Guardianship of Minors Ordinance(Cap 13)
By section 10(1) Guardianship of Minors Ordinance – on the application of either of the parents of a child (or the Director of Social Welfare) the court may make an order for either custody and/or access for the child to either of his or her parents. The court must have regard to the best interests of the child and the wishes of both parents.
Further, by section (2) the court may, on an application by either of the parents (or guardian) who has custody of the child – may make any one or more of the following orders – obviously having regard to the means of the paying parent:
- a payment of a lump-sum to the applicant in one amount or by instalments for the immediate and non-recurring needs of the child.
- a periodical payment towards the maintenance of the child
- a secure periodical payment towards the maintenance of the child
- transfer of such property to which either of the parents is entitled or
- settlement of such property, to the child
Section 12A was introduced to extend the duration of the financial orders for children to beyond the age of 18 in certain circumstances, in line with the provisions in section 10(3) Matrimonial Proceedings and Property Ordinance (Cap 192).