To Divorce or Not to Divorce?

---

TRANSCRIPT

To Divorce or Not to Divorce?

Alfred Ip  00:10
Hello, everyone, welcome to our video, I am Alfred Ip and… I’m Azan Marwah. Today we talk about divorce.

Azan Marwah  00:17
My favourite topic.

Alfred Ip  00:21
All right. When my friends are asking me what I should get married, I always ask them. How about divorce? Be careful, don’t get married unless you’re very sure about it because you couldn’t even get divorced in Hong Kong. Why is that?

Azan Marwah  00:41
Kind of the last time you and I spoke, we talked about marriage equality. Yeah. And how the laws in Hong Kong had been designed for opposite sex marriages. So, in fact, the divorce law in Hong Kong, it speaks about kinds of marriages, which are void. And one kind of marriage, which is void is a marriage that’s between two people of the same sex. Oh, so actually, in Hong Kong, it is a ground for divorce, that you are of the same sex… in a sense, again, except for various reasons, generally speaking, you can’t use that.

Alfred Ip  01:23
Yeah. Interesting. So, it’s not true that you can get divorced in Hong Kong, per se. You can but it’s not called divorce.

Azan Marwah  01:34
That’s right, but it’s not called divorce. And two, the system really isn’t designed for marriages, which all along intended to be same sex marriages. So, it’s likely that a court right now would say that that marriage wasn’t a marriage at all. But I wouldn’t go so far as to say that there is no such thing as same-sex divorce in Hong Kong. And I would simply say, the question hasn’t really been asked of the courts yet.

Alfred Ip  02:04
So nobody has brought it to court yet. That’s right.

Azan Marwah  02:07
There is one case where one of the courts talked about whether or not there should be same-sex divorce. And the Court said that it couldn’t see a reason why there would be, but it wasn’t argued in that case. And I would say there are actually lots of good reasons why a person might want to get a divorce and why they might need a divorce.

Alfred Ip  02:30
I think actually asking this question itself is a bit problematic. Think about if you’re stuck in a relationship or marriage and you earlier you’re told that oh, you can never get divorced, how sad it would be?

Azan Marwah  02:45
Yes. It’s the ball and chain for the rest of your life.

Alfred Ip  02:52
But actually, that’s not true. Because, okay, I always say that divorce is a procedure. I understand that getting through the procedure help you to get closure. But actually it is the reality that makes a difference. Divorce, we were talking about the dissolution of the marriage itself. But a lot of times actually, this is the part that the two parties have consensus. They agree that the marriage cannot go on forever from now on, and they need to lead separate lives. But then leading separate life actually comes to a lot of issues as well, the first question that a lot of people ask about it, who moves out?

Azan Marwah  03:40
That’s right. And thankfully, in divorce, really, the court has the power to deal with the three big questions. The first one we just talked about: the need to relate relationship. The second one, the need to deal with the practicalities of the finances? Yes. Who gets the dog? Who gets the apartment? Who gets the bank account? Yes. And then the third major area that the courts really have to get involved with, which I can say the courts would certainly deal with in Hong Kong. In fact, there’s a recent case, which I dealt with, where there was a same sex couple, and they were getting broken up. Yeah. And the question was, who should take care of the children? Yeah, who should have the rights of custody related to the children? And these are the three big areas where the courts need to get involved when there’s a breakdown in the relationship. And that’s really why generally speaking, you need some kind of divorce arrangement.

Alfred Ip  04:35
Since you bring up that case it took about AA and BB. Right, that’s right. Yeah. Um, tell us more about that case. Why is it important?

Azan Marwah  04:44
The case is really important for a few reasons. One, it recognizes the right and interests of children in maintaining their relationships with both parents, even if the legal status of parentage isn’t established with one of those parents, because the reality you and I know of same sex relationships is they have children. Yeah, those children exist. Yes. And they grow up in families where both of those partners are practically functionally if not necessarily legally, their parents, yes. And AA and BB first deals with saying, yeah, the court can and should recognize the children’s interests in having their relationship with both parents protect it. The second thing that AA and BB recognizes is that when that happens, the person who assumes what we call the guardianship of the child together with the other parent, that person should also have the responsibility to take care of that child, including financially. And in that case, the court was dealing with a relationship that was breaking down, and it was making orders that would enable both parents to remain in the lives the children.

Alfred Ip  06:01
So the children actually, the parties have joint custody and joint care and control. Right. I think that’s brilliant, because not a lot of cases not even in usual divorce, that the parties can agree on the joint care and control. Joint Custody is normally like a given. But joint care and control is not.

Azan Marwah  06:28
Not easy at all. Um, I consider Hong Kong very fortunate that you had a couple like AA and BB come forward, where really they’re both of their common focus was on the children. Yeah. And in demonstrated, or in some ways that same-sex couple can behave better than most divorcing or separating couples.

Alfred Ip  06:53
Yeah. But we always say that same-sex couples can have more drama.

Azan Marwah  07:00
They could do both. And in this case, I’m very grateful that they were those kinds of parents.

Alfred Ip  07:05
But what about if they cannot agree and fight over children on custody and care and control? Would it become very complicated?

Azan Marwah  07:12
Well, children’s cases, you and I both have that experience. Yeah, it can become very complicated. Ideally, they are matters that are dealt quickly with reason, based on what’s best for the children. Yeah. After you’ve investigated, sometimes you might need an expert or not. But the truth is, it can get very complicated, or it can be dealt with simply. Yes, depending on the people involved.

Alfred Ip  07:37
Yeah. And would lesbian couples cases be different compared with gay couples, two men versus two women? Especially when we’re talking about birth right, gestation and who has to guardianship etc.

Azan Marwah  07:53
Yeah, so in divorce cases, that could be different. But really, the question, the legal questions are the same ones. Yes. And the core question is what’s in the best interests of the child? Yeah. And really, the sexuality or gender of the parents, most of the time is actually not that important, not that serious. And there, really, this principle, became part of Hong Kong law in about 2005. That was the first time the issue of the sexuality or the gender, or sexuality of a of a parent, in the same sex relationship became important. There’s a case called W and W. Okay, nobody needs to know the full case. But in that case, a straight couple divorced because the mother joined a lesbian relationship. Okay, partner, and the father said that her sexuality disqualified her. And the court in this in this occasion, it was the Family Court, the family court said, No, it’s sexuality is not going to disqualify you as a parent. But there are also many cases after that, where the courts have talked about the difference between a male parent and a female parent. Yes. And in a very important decision from the court of appeal called H and M, the court said, No, there’s no presumption in favor of males or females. There’s no such presumption.

Alfred Ip  09:27
In reality, when we’re talking about children, especially younger children, there seems to be like a presumption or preposition that the children will be closer to the mother.

Azan Marwah  09:45
I would say the prejudice exists. Yeah, sometimes. Maybe very often with the lawyers or with the parents, sometimes with the social workers, and rarely, but still sometimes with the judges, but I’d say that those prejudices, they often disappear when there is rigorous analysis. When people are represented by competent professionals, typically those kinds of questions they, they can evaporate very quickly.

Alfred Ip  10:15
I think it’s most important to actually have a role in the children’s upbringing, active role in the children’s upbringing and preserve that role when the parents are going through divorce. Can you imagine like the children becoming like a ball that gets thrown from one court to another, that is the worst. And this is even worse when the parents are fighting only because they want to fight. Even that some people do a lot of different things as soon as they realize the relationships is going to an end and then because they’re so afraid of losing…

Azan Marwah  11:01
You highlight a really important issue, which is how to protect children… yeah… before the breakdown of the relationship. Yes. And this is a problem, which is very acute for same sex couples in that way it’s generally quite different from heterosexual couples. Yes. Homosexual couples, they need to take more active steps to protect their children and to protect themselves. And the AA and BB case it’s so funny, you keep calling it AA and BB, because in my head, I think of the names of the parties. Yeah. But when I look at that case, I actually think well, it’s incumbent on same-sex parents to go out and get a guardianship order that reflects the reality, because they cannot assume that the court will take that as the status quo. This is an area well until we have true and full marriage equality, marriage equality, family equality, same sex parents are going to need to go out and positively put in place legal structures that protect the child.

Alfred Ip  12:11
This is actually a fairly complicated subject. But let’s see if we can do it within five minutes. The primary position is that the father actually has no guardianship right to their own children, unless and until he married the mother. That’s right. That can you apply this to same sex couples, when actually neither of them is the birth mother? Who has the right?

Azan Marwah  12:42
That is a very, it’s very interesting that you raised that example of unmarried couples. Yes, in a sense, same sex couples are like heterosexual unmarried couples. Yes, in terms of their status. Now it can get a little bit complicated. And there are some cases that may come out soon, that might clarify things, depending on how the child was conceived, and how the child was born, sometimes people have existing adoption orders or parenting orders from outside of Hong Kong, which can also help the situation. But typical families in Hong Kong, they like unmarried couples, they have to go to the court and ask for an order in order to create that legal reality.

Alfred Ip  13:26
This is outmost important because when there are two fathers, and only one of them, or neither of them has the right to the children, you never know what is going to happen when the children grow up. And whether they can make effective decision on them. That’s actually very unsettling.

Azan Marwah  13:45
It is very unsettling. And I would agree with you if what you’re saying is that the current law doesn’t sufficiently protect children. Yeah. Because it makes assumptions about families. Which, if they were ever true, they’re certainly not true in modern Hong Kong.

Alfred Ip  14:01
Yeah. And how about a lesbian couple if one of them is the birth mother, does the other mother have a right to the child, even if they’re married?

Azan Marwah  14:12
So, the AA and BB case is very interesting, because there were two children. Yeah, the first child was born in Australia, okay. And because of the laws in Australia, even though this couple were unmarried, they had a kind of civil partnership, okay, that under Australian law meant they were treated automatically as the joint parents of the child. But because of the specifics of Hong Kong law, that order, let’s say it was questionable whether or not it had any effect in Hong Kong. Partly because of when our laws were written they were written in a different time with a lot of different assumptions. That party they had a second child that was born in Hong Kong. That child certainly was only the child of one of them, and the other person had no rights. No, not even arguable rights. And so, the order was crucial to regularize it. So, it was clear both parents had responsibilities of guardianship. And both parents had the authority on an equal basis.

Alfred Ip  15:17
Such an order must be very important to the non-biological mother or non-gestational mother.

Azan Marwah  15:25
Actually, it goes both ways. Yes, because the biological mother will have two things. On the one hand, she will have all the rights and authorities of a parent. On the other hand, she’s also the only person responsible, legally, okay, to finance, maintain the child, the other person may be able to just walk away.

Alfred Ip  15:44
Yeah. So AA and BB occurred when the parents are actually in the dissolution of relationship. That’s right. But do orders like these actually apply to those parents who are not talking about divorce? it’s actually important to them to have a similar court order, so that they can be sure that both parties have equal rights to the children.

Azan Marwah  16:12
That’s right. And we’ve talked about children. But you can say the same issues arise when we talk about finances. Yes, there is an obligation, I mean, say obligation, there’s an onus on people the burden on people that they have to positively take steps, yes, to ensure that there will be some fairness when the relationship breaks down. Yeah, that can be done through deeds of arrangement between people. And it can be done through other, let’s say, clever, and sensible arrangements with your estate to ensure that each of you is treated properly, whether someone dies or the relationship breaks down.

Alfred Ip  16:56
I think if we’re talking about finances, perhaps in order to complete the whole story, the first thing is, before getting married, what should people think about when they’re planning the marriage and finances in case there is such a dissolution in future?

Azan Marwah  17:15
I would say the first thing it’s important to be honest with your partner.

Alfred Ip  17:22
Oh, yes. This is crucial. Yeah. communication,

Azan Marwah  17:26
Communication as a general rule in relationships. Both of us know, yeah. Is there any relationship, but also in terms of planning. What happens when things go bad? Yes. You don’t want one person to turn around and say I was deceived. Yes. Or I simply didn’t know what something meant. So, the first step is always putting your cards on the table.

Alfred Ip  17:50
Absolutely. Putting the cards on the table, laying out the expectations, especially in terms of shouldering financial burden, a lot of times two people get together, they probably have similar or equal financial footing, but actually not for everyone is the case. There are a lot of situations when one party assumed the role of the breadwinner. And the other one assumed the role of caretaker. And that was more common in traditional marriage, where we’re talking about the husband going out and work and the mother minding the children at home. Now in terms of same sex relationship, that’s actually also the case. That’s right. And…

Azan Marwah  18:35
…in Hong Kong, I would say there are lots of different kinds of people. Yeah, but there are actually a lot of people who have come to Hong Kong, because the other partner is the breadwinner. Absolutely. They arrive here and it may be the only one of them has work. Yes. Or only one of them has heavily remunerative work, the other person doesn’t have that. And yes, automatically in a weaker position…

Alfred Ip  18:58
…and that person probably sacrifice their own career path. So, in order to form a family, with the partner in another country.

Azan Marwah  19:11
In heterosexual divorce, yeah. We talk about this concept of compensation. Yes. As an aspect of fairness. Yes. And this is something which happens the same in a homosexual relationships. Absolutely.

Alfred Ip  19:24
Especially when we are talking about the accumulation of wealth together is only fair to share it fairly upon the demise of the marriage. Perhaps not everyone knows what we mean by equal sharing. Can we start with DD and LKW?

Azan Marwah  19:50
I think that’s a great place to start. I think the first thing to say is that not all marriages are the same. Yeah, straight or gay and lesbian, not all relationships are the same. Yes. And what’s fair will depend on the circumstances. Yeah. So in this case called DD and LKW… following White and White… There is a there’s a decision from the Court of Final Appeal. It was a straight divorce. And the court was concerned with what happens when the family has more money than either of the parties need for their maintenance? Yeah. What do you do with the surplus, and it used to be the Court of Final Appeal was upturning the previous law, but the previous law was, well, you would only look at one person’s needs generously assessed, and you would just provide them with like a meal ticket for life, really. But the Court of Final Appeal says no, that’s not quite fair. Instead, what the court should do is the court should consider 1. we reject discrimination. Discrimination between males and females, breadwinner and homemaker, we’re going to reject that. Yeah, we’re going to say instead, there are different kinds of contribution to a family. Yeah. That can be by making the home or can be made by making the bread. Both of those are equal, neither will there be discrimination based on gender. Now, that same principle, I would say, in principle applies to heterosexual and homosexual couples, and it should be the same. The next thing the court said is that we’re going to say that, generally, the factors like the length of the marriage, yeah, those things are also relevant and how the parties have conducted themselves. So if the parties have said, you know, you keep your finances, I’ll keep my finances, we’re going to limit our relationship to this point. Well, the court says, Well, we’re going to respect that. But subject to that caveat, the court also says generally, fairness means equality. Yeah. This is where people get that idea in their head of 50/50. Okay. But the Court of Final Appeal isn’t quite saying 50/50, saying, after you’re taking care of needs, after you’ve adjusted for things like how long the marriage was, how the parties have conducted themselves, perhaps if they’ve signed what’s called a prenuptial agreement, after you consider those things, generally speaking, the approach should be equality, and we should be closer to equality or even 50/50 sharing, the longer the marriage is, the more both parties have contributed to the relationship.

Alfred Ip  22:32
I always use the example for like, you have $100, I have one dollar, if we are getting divorced, your $100, put together with buy $1 and put it together is $101. So, each of us will get $50.50. And then, because I only have $1, you have to give me $49.50. That’s right. Yeah. So, it’s as simple as that, it sounds like as simple as that, but in terms of calculating whether you have $100 or I have one dollar, it’s an entirely different story for you. And then they haven’t even talked about needs, I may have only one dollar, but if my needs is going to be $10 per year, and I have another 20 years to live for 30 years to live, I definitely would need more than $30 or even $300. So, in that case, I can get more than half from you.

Azan Marwah  23:32
This is right. In surplus cases…

Alfred Ip  23:35
…when they are surplus that we’ll be talking about equal footing, 50/50. That’s right, then when we’re talking about need cases,

Azan Marwah  23:45
In need cases, it will really depend on what are what are my capacities? What’s my need? So, if you need $10, and I only need $1, or you need $10, but I need $10 too but you, let’s say you’re a quadriplegic and you find it very difficult to earn money, but I’m earning $200. Yeah. All that goes into the mix. Yeah. But the court, the general approach of the court is, we want to make sure that each person’s needs are covered. Yeah. But we’re still looking to ultimately the parties going their own way. Yes. Even though the court does have the power to do this thing called periodical maintenance. Yeah.

Alfred Ip  24:25
Which is the reason why divorce can become very complicated, because there are quite a lot that can be argued that like whether you have 100$ or not, well, you have another person who is unloading another $100 for you. And or whether you are holding $50 on behalf of another person like your mother. So, it shouldn’t be it $100 that can be divided, or whether my need is $10 or even only $5. I’m just inflating money for the purpose of the divorce.

Azan Marwah  24:58
I totally agree with you and the reality is there are different ways of slicing a cake. Yeah. And you can eat it. And the court really has a broad discretion. But I would say this, that process, which can be very difficult, in Hong Kong can be very expensive. That’s true. Absolutely. But the focus is really on what is fair. Yeah. Now, you can make that process more expensive, more difficult by not planning for it, coming back to the question you asked. Exactly. And you can make it even more difficult if you are not forthright with the other person. Now, on the other hand, people do agree things and the courts have increasingly said they’re going to recognize that by saying, okay, you we’ve agreed ahead of time, yeah, this is what I owe you. Yeah, this is what you owe me. Yeah, this is what I can keep to myself. That’s what you keep to yourself.

Alfred Ip  25:46
Yeah, which is exactly where the prenup comes into play. But I always say that prenup actually is not a very effective way to protect the family wealth. My take is that, first of all, prenup you have to have separate legal representation, so that when it is enforced, the court is satisfied that both parties actually understand what they are signing and with legal effect to it. And legally effect to it is not just like oh, this is the terms and you have to agree to it, how one party is better off or worse off in case of a divorce with the tamps in place. And separate legal representation is one thing, asset disclosure is another which actually, a lot of people do find it very unromantic. Think about it. The purpose of the prenup is to ringfence pre-marital assets, assets that you bring into the marriage, but the terms of the contract is that in case of a divorce, you’re not going to claim against me for the assets that I bring into the marriage. And a lot of people do find, actually, my spouse doesn’t really know how much I have.

Azan Marwah  27:03
Some people don’t know how much they have. Exactly. But as unromantic as it is. And that is certainly the thing that’s been told to me every time I’ve suggested a prenup. Yeah, I will tell people, what you’re signing up for is not a date. Yeah. You’re not signing up for a holiday. Yeah, you are signing up for a partnership. Yes. And it’s a partnership that’s going to cover every aspect of your life. Yeah. If you at the beginning of that relationship, don’t show the other person that part of your life, it can cause a problem.

Alfred Ip  27:38
But then at the same time, they can also say that by showing them that side of my life changes the dynamics of relationship, I can no longer be sure that he loves me for who I am.

Azan Marwah  27:55
The other thing I would say, beyond this very difficult aspect of the conversation. Yeah. Is that really a prenup is not, like you said, it’s not a panacea. Yeah, it’s not something that’s going to end the conversation. Yeah, I would say that sensible person, particularly those people with more complicated financial lives, yeah, should actually be reviewing their, their planning from year to year, where there is a concern about relationships ending, it’s something that ought to be done with a little bit more thought on a regular basis. Because it may be when you make something that people often discover late into the relationship is that the courts can actually undo certain kinds of transactions. Yeah. And it does make more sense when you’re making major changes to your financial life, to involve your spouse, at least making sure that they are advised and informed so that it doesn’t come back to bite you later on.

Alfred Ip  28:59
Actually, a lot of people asked me this question, can I simply set up a family trust to avoid the separation of marital assets? So, the answer is no. This is too late. If you want to set up a trust set up before you get married.

Azan Marwah  29:15
There is a recent case in the High Court where that’s exactly what one of the parties did, okay, set up a family trust, they invited their spouse, but they didn’t really give their spouse any opportunity to object to it. Okay. And the court did exactly that, completely unwound. Yes, this trust that had been set up. Yeah. And in a very expensive way. And I would say that that person was poorly advised in how they went about that trust. There were good reasons for that trust, but they went about it in a way, which wasn’t really designed to ensure the court would enforce it.

Alfred Ip  29:53
Yeah. That requires a lot of planning and good advice from people who also have to experience in the divorce court, how the trust is going to be treated if things go down and the parties are going for divorce, it is an effective tool to protect family assets. This is particularly the case when we’re talking about another aspect of the prenuptial agreement that is, is of persuasive value. The court has discretion with jurisdiction, that it can always depart from the terms of the agreement and make a decision that is considered fair to the parties. So, ultimately I do agree that prenup is not a particularly effective tools to protect family wealth. And I think I agree with you more on the understanding, communication, disclosure, and be honest with each other as the way to protect a family wealth.

Azan Marwah  30:57
It’s like drafting a contract. You want to have a full discussion when people are on good terms. You don’t want to wait until the bad stuff has hit the fan.

Alfred Ip  31:08
Yes, absolutely. Especially when family members a lot of times if everything is laid out on the table, it sounds so romantic, and this is a conversation that a lot of times may not be that easy. Why are we talking about this? While you’re thinking that I’m after your money, or, you know, a lot of misunderstanding can arise. I think we can carry on this conversation for another hour or two. But let’s wrap it up and we talk about another thing another time.

 

This video is for informational purposes only. Its contents do not constitute legal or professional advice.