The Family Court

Ontario Superior Court Judge Quinn remarked in his summing up that  Catherine – a 36-year-old school caretaker – and Larry, a labourer, had burned through an enormous amount of police and court time waging their futile blitzkrieg against each other. He said that Catherine once tried to run over Larry with a van. “This is always a tell-tale sign that a husband and wife are drifting apart,” Judge Quinn remarked dryly.
 

Which Court?

Family cases are generally private law matters and any reference to the ‘court’ refers to matrimonial proceedings either in the Family Court or the High Court.  The Family Court occupies the lower floors of the  Wanchai Law Courts, Wanchai Tower, 12 Harbour Road and the Registry is on level M2. The Family Court is simply that division of the District Court which is assigned by the Chief Justice to deal with ‘Matrimonial Proceedings’ and ‘Family Proceedings’ – although the latter is not statutorily defined.

All family and matrimonial cases are started in the Family Court – section 10A Matrimonial Causes Ordinance (Cap 179) – and thereafter may be transferred to the High Court where the case is of particularly high monetary value or – as is often the case – is likely to involve highly complex matters of fact or law. In the case of the total value of the assets however the Family Court regularly deals with cases that exceed the District Court limits – by section 10A(3) the court may exercise jurisdiction even where the amount claimed in the proceedings would be beyond the normal jurisdiction of that court – section 32 District Court Ordinance (Cap 336).

In such circumstances the Family Court has the power to transfer the matter up to the High Court for hearing. For the sake of completeness this is a two-way street and, of course, in turn the High Court has the power to transfer back ‘down’ to the Family Court any matter it regards as best dealt with in that court.

On transfer from the Family Court to the High Court see Practice Direction 15.14 –  ‘The Family Court has an unfettered discretion whether, and if so, when to order a transfer of the proceedings to the Court of First Instance.  When exercising the discretion, the Family Court is guided by rule 32(1) and rule 80(5) of the MCR.  The fundamental principle is whether in light of the overall circumstances including the nature of the issues of fact or law involved, the proceedings or part of them are more desirable to be dealt with in the Court of First Instance.  Practitioners may wish to consult the following cases as examples of how the jurisdiction is exercised: B v B, FCMC 3105/1999 11 July 2000; H v H, FCMC 7173/2000 1 February 2002; and SWM v PYC, CACV 308/2002 6 November 2002.’

Care Proceedings‘ – or public law that deals with the removal of children by the Social Welfare Department for their own protection – are (unlike under the Children Act in England for example) wholly separate from the Family Court and dealt with in the Magistrates’ (Juvenile) Courts inter alia under section 35 Protection of Children and juveniles Ordinance (Cap 213).

Jurisdiction

Because of the nature of Hong Kong’s transitory population this question can be an issue for those people who are not ordinary residents who were born and brought up in Hong Kong and who live and work here. Hong Kong only has jurisdiction to entertain a divorce petition if, at the date of the divorce petition, either the husband or wife is domiciled in Hong Kong, or has been habitually resident in Hong Kong throughout the previous 3 years, or has a substantial connection to Hong Kong – see section 3 Matrimonial Causes Ordinance (Cap 179) and is a factor that has to be given proper recognition: see Nan Tung Bank Ltd, Zhu Hai v Wangfoong Transportation Ltd [1999] 2 HKC 606 and Yap Lup Man v Good First Investment Ltd [1998] 1 HKC 726.

Domicile

Domicile can be a complex matter – see ML v. YJ (2010) 13 HKCFAR 794 (and Michelle Tsang’s excellent summary on the change in the law that resulted from this case on 19th March 2011 here) – but for the purposes of establishing whether Hong Kong is the place to file for divorce for those born outside Hong Kong the question relates to ‘substantial connection’ or ‘habitual residence’ rather than ‘domicile’.  The latter referring to the country that a person treats as his permanent home and to which he has the closest legal attachment – see W v C CACV 36/2011 – judgment 21st March 2013. For most people this means no more than place of birth. See section 3(2) Domicile Ordinance (Cap 596). Certainly domicile can be acquired as an adult – see section 5 – but this is rarely likely to be an issue – at least on the narrow issue of  determining whether or not the Family Court has jurisdiction to entertain a divorce application from a ‘non-domiciled’ resident. To repeat, the question (for most of Hong Kong’s often transient and/or expatriate community) is likely to turn on the question of ‘residence’ and ‘connection’ as section 3 (above) establishes questions of domicile, habitual residence and substantial connection as three separate alternatives.

For an example of where only domicile is pleaded in a divorce petition, on the facts, under the Domicile Domicile Ordinance (Cap 596) –  see Y v W FCMC 1847/2011

Habitually Resident and Substantial Connection

The two leading judgments on  ‘substantial connection’ are B v A [2007] 4 HKC 610 and
S v S [2006] 3 HKLRD 751. The judgments in these two cases are very clear and easy to follow See also the discussion in YS v TTWD FCMC 676/2011 and more recently in ZC v CN  [2014] 5 HKLRD 43 and JEK v. LCYP [2015] 4 HKLRD 798

The question of habitiual residence is rarely an issue in Hong Kong because the statute is clear – if a person has been living and working here for 3 years prior to the date of the divorce petition there is usually no difficulty in determining whether this criterion can be met. The words mean what they say and whether a person regularly takes long business trips or holidays out of Hong Kong it is not going to affect the definition of habitual residence in Hong Kong.

The question of ‘substantial connection’ under section 3 is a little more fraught and in Savournin v. Lau Yat Fung [1971] HKLR 180, Briggs J confirmed that the sub-section had established a new basis for determining the personal law of the parties to a marriage and had established an additional ground of jurisdiction although with a slightly wider meaning than the other two requirements: “Domicile in a country is obviously a substantial connexion with that country: so may three years ordinary residence be so considered. Paragraph (c), a substantial connexion with Hong Kong, is in addition to those two requirements. It is not substituted for them. A meaning must be given to the phrase wider than domicile or three years ordinary residence.”  As Hartmann J then went on to say in B v A at paras. 18 -21

‘As to the meaning of the phrase ‘substantial connection’, Briggs J said that it was to be given its ordinary meaning. It is not a term of art. In my view, that must be right. As such, it would be wrong to burden the phrase with qualifications, for example, by specifying inter alia that a person must ordinarily reside here for at least a year before he can be considered to have a substantial connection with Hong Kong. An accumulation of such qualifications would reduce the phrase to a term of art and that, I believe, would be contrary to the legislative intent.

The word ‘substantial’ is not a technical term nor is it a word that lends itself to a precise measurement. In an earlier judgment on this issue, that of S. v. S. [2006] 3 HKLRD 251, I said that it is not a word  “… that lends itself to precise definition or from which precise deductions can be drawn. To say, for example, that ‘there has been a substantial increase in expenditure’ does not of itself allow for a calculation in numerative terms of the exact increase. It is a statement to the effect that it is certainly more than a little but less than great. It defines, however, a significant increase, one that is weighty or sizeable.”

That being the case, if the phrase is to be given a wider meaning than domicile or three years ordinary residence, whether a party to a marriage did or did not have a ‘substantial connection’ with Hong Kong at the time of the institution of proceedings can only be determined in each case by having regard to the facts of that case and coming to a broad conclusion based on those facts.

In S. v. S., I said that, when considering the meaning and extent of the phrase ‘substantial connection’, it is important to recognise that the legislature saw fit to qualify it with the indefinite article ‘a’. It is not therefore necessary to show that a party’s substantial connection to Hong Kong is his or her only substantial connection with a jurisdiction or is the single most substantial connection. In the present case, therefore, while the fact that the husband and wife have a substantial connection with Argentina may go to an issue of forum non conveniens, it does not determine whether either party had a substantial connection with Hong Kong at the time when the wife’s petition was issued. As I said in S. v. S., no exercise of comparisons is required.’

In practical terms what this means for those people currently living and working in Hong Kong on anything other than a temporary basis, getting divorced in Hong Kong should be possible. On the other hand the mere fact that a person was married in Hong Kong or owns property here or was resident here sometime in the past, will almost certainly – without more – not be sufficient grounds to establish jurisdiction in the Family Court.

For further comment see para 30 -37 of the Department of Justice  LC Paper No. CB(2)2228/09-10(01) – ‘Matrimonial Proceedings and Property (Amendment) Bill 2010 (“the Bill”)’ – which concludes:

‘In deciding the issue, the court would have regard to all relevant facts instead of limiting to particular circumstances such as the time that a party has remained in Hong Kong. The presence of a matrimonial home in Hong Kong (whether in purchased or rented property), nature of their stay in Hong Kong, place of education of the children of the marriage, as well as maintaining bank accounts and acquiring family assets in Hong Kong may all be relevant. The list is not exhaustive.’

Matrimonial Causes and Matrimonial Proceedings

‘Family law’ is a very general term used by lawyers and academics to mean the law relating to ‘families’ but including separation and divorce and its repercussions, particularly in relation to any children of the marriage and the division and disentangling of any marital property and other assets. ‘Matrimonial law’ is sometimes substituted – perhaps narrowing the scope to exclude wider non-divorce related matters and children and to refer more to issues surrounding divorce and ancillary relief. However the distinction is an academic one. In Hong Kong both terms also includes customary marriage relations. Thus family law is a perfectly well understood term but within the statutory provisions governing the various aspects of divorce and its concomitant or ‘ancillary’ matters, rather more specific term are used.

Matrimonial Cause (see Practice Direction 15.12) means any proceedings for divorce, nullity, judicial separation, presumption of death and dissolution of marriage – see section 2 of the Matrimonial Causes Ordinance (Cap. 179).

Matrimonial Proceedings means any proceedings with respect to which the Matrimonial Causes Rules (Cap. 179A) apply – see section 54(1) Matrimonial Causes Ordinance (Cap 179). These include proceedings under the Matrimonial Proceedings and Property Ordinance (Cap. 192) – see Rule 2 MCR

Application of the Matrimonial Causes Rules

The Matrimonial Causes Rules – made under section 54(1) of the MCO above – apply to all Matrimonial Proceedings, and the jurisdiction vested in the Court by the MCO shall so far as regards procedure, practice and powers of the Court be exercised in the manner provided by the MCO.

Family Proceedings

The Hong Kong Law Reform Commission Report on Child Custody and Access March 2005  recommended a statutory definition of ‘Family Proceedings’ (see Recommendation 31). Practice Direction 15.12 does give a definition but no definition appears in any of the relevant Ordinances. The Practice Direction states that Family Proceedings generally do not include applications under the Child Abduction and Custody Ordinance (Cap. 512) – Hague Convention cases – or Wardship proceedings. These continue to be dealt with exclusively by the High Court. However, ‘Family Proceedings’ in both the Family Court (District Court) and the High Court may be issued under the following Ordinances, and any of their respective subsidiary legislation:

(1) Adoption Ordinance (Cap. 290)

(2) Domestic and Cohabitation Relationships Violence Ordinance  (Cap. 189)

(3) Guardianship of Minors Ordinance (Cap. 13)

(4) Legitimacy Ordinance (Cap. 184)

(5) Maintenance Orders (Reciprocal Enforcement) Ordinance (Cap. 188)

(6) Marriage Ordinance (Cap. 181)

(7) Married Persons Status Ordinance (Cap. 182)

(8) Marriage Reform Ordinance (Cap. 178)

(9) Parent and Child Ordinance (Cap. 429)

(10) Separation and Maintenance Orders Ordinance (Cap. 16)

Ancillary Relief

The term Ancillary Relief – Matrimonial Causes Rules (Cap 179A) section 2 – is often confusing to the parties to a divorce. For the avoidance of doubt, in short it covers the following applications which must be specifically pleaded in any Petition or Application.

(a) an avoidance of disposition order,

(b) a lump sum order,

(c) an order for maintenance pending suit,

(d) a periodical payments order,

(e) a secured periodical payments order,

(f) a settlement of property order,

(g) a transfer of property order,

(h) a variation of settlement order, or

(i) a variation order