‘Blameless divorce’ has been the guiding principle in UK law and by extension Hong Kong since the 1970s: let couples divorce, do not ask why, and focus on the legal division of assets and custody of children. It is meant to take some of the pain out of a marriage breakup, but as Dr Keith Hotten of the Department of Professional Legal Education explains, “the devil is in the details”.
Dr Hotten wrote the leading textbook on Hong Kong marital law and, as a barrister of 25 years in Hong Kong and the UK, has seen divorces mushroom here, with the number of petitions granted more than doubling since the mid-1990s to about 23,000 a year. He has also been at the sharp end when it all goes wrong.
“Judges would like agreement and the vast majority of cases are agreed. But the problem is that matrimonial law, unlike nearly all other types of civil proceedings, is highly emotional. You have cases where husbands and wives hate each other and won’t give an inch. They fight over the dog, over a worthless piece of pottery, they will fight over everything. Some of them also have lots of money and use the courts to litigate. And there’s the rub,” he said.
When there is an unwillingness to back down and the case goes to trial, it can take 18 months to two years to get a few days in court to hear the case – such is the backlog in the courts. By contrast, couples willing to go through mediation can have their Decree Absolute granted by the court within a few months, although even that overburdens the judicial system because of the sheer number of divorce petitions each year.
Those who insist on getting their day in court must be willing to pay. “People who don’t have a lot of money can’t afford to litigate,” Dr Hotten said. “Middle class couples may have more to argue about and one of them might get legal aid, but it will still cost a lot of money. You’ve got family lawyers charging HK$6,000 an hour, and you can see people fighting over HK$20 million, which is not much given the price of homes in Hong Kong. You could spend HK$10 million on lawyers if you spend two years litigating to trial. Multimillionaires with money to burn don’t care about the costs, but they are clogging up the courts.”
Judges would like agreement and the vast majority of cases are agreed. But the problem is that matrimonial law, unlike nearly all other types of civil proceedings, is highly emotional.
Dr Keith Hotten
Children pay the price
Spending that kind of money also deprives children of inheritable assets. “The courts are alive to these issues. Family court judges will be pulling their hair out saying ‘Settle!’, but at the end of the day, with the Bill of Rights, people have the right to a fair trial. If two parties are determined to litigate, there is nothing a judge can do about that,” he said.
When children are involved, the fallout can be particularly severe. In the UK, a Children’s Act was adopted in 1989 to ensure children’s welfare was the foremost consideration in things like custody battles (historically parental rights had predominated). While Hong Kong tends to follow UK law in practice, it has been particularly slow in adopting this principle in law. In 2012, legislation was reformed so the courts would regard ‘best interests of the minor’ in custody cases. But a children’s law that would give courts clearer authority to protect children is still pending. It was proposed as long ago as 2005 but is unlikely to be adopted until 2018 or later – and even then it does not include reforms incorporated into the UK children’s law in 2006.
“In a sense, Hong Kong is muddling through. It’s applying the principle, but it’s not enshrined in statute,” Dr Hotten said.
There is good reason to sort this out as early as possible, given custody cases can drag through the courts for years if the children were young at the time of divorce – terms have to be continually renegotiated as they grow. This leaves children caught in the middle. Dr Hotten said in extreme but unfortunately not rare cases, parents have defied court orders pertaining to children to get back at their ex-partner – he has even seen a mother medicate her children with Calpol and Prozac so they were disoriented during court-ordered visits with their father.
“Ultimately no law can stop warring parents fighting over children,” he said. “There is no magic answer. But a children’s law will make things better and give powers to judges that are not currently enshrined in law.” And hopefully, help to reduce some of the collateral damage that can arise from divorce in Hong Kong.
The Battlegrounds Of Divorce
Most divorces in Hong Kong can be settled with talk and mediation, but when they aren’t, children and the court system suffer.
Dr Keith Hotten is one of the authors of the leading textbook on Hong Kong marital law – Hong Kong Family Court Practice.