Untangling the Knot: Your Guide to Family and Matrimonial Law in Hong Kong

Let’s be honest, talking about prenups, divorce, and wills isn’t as fun as planning a wedding or a family vacation. But, just like remembering to pack an umbrella during typhoon season, a little legal preparedness can save you from getting absolutely drenched.

Understanding the complexities of family and matrimonial law is critical for protecting your interests and those of your loved ones. A recent community call with Jaerey Velasco, Partner at Payne Velasco leading the family and matrimonial litigation team, shed light on these often challenging matters within the Hong Kong legal context. For anyone facing these difficult circumstances, knowledge is the first step toward resolution.

Here are the essential takeaways from our discussion:

The Value of Prenuptial and Postnuptial Agreements

While both prenuptial and postnuptial agreements are recognised in Hong Kong, they are not automatically binding. For an agreement to carry significant weight, it must meet stringent criteria: full financial disclosure from both parties, independent legal advice for each individual, and execution well in advance — prenups should be signed at least 28 days before marriage to avoid claims of duress.

Postnuptial agreements are just as valid as prenups and are drafted after a couple has been married, outlining the division of assets, debts, and financial responsibilities in the event of separation or divorce. When properly drafted, these documents serve as a powerful guide for courts making decisions on asset division.

The Critical Importance of a Will and Intestacy Rules

The rules of intestacy — what happens when one passes without a will — are a powerful reminder of the necessity of estate planning. In Hong Kong, if someone with a spouse and children dies without a valid will, the first HK$500,000 of their estate passes to the spouse. The remainder is then divided according to a statutory formula between the spouse and children.

However, this process can often be long and cause divisions within unified families. A validly executed will is the only way to ensure your specific wishes are followed and to provide clarity and security for your family.

Understanding Separation and Maintenance

The law acknowledges the practical realities of separation. Parties can be considered separated while living under the same roof, provided they lead truly independent lives within the residence. Regarding financial support, maintenance for a spouse and children is not a punitive measure but is calculated based on reasonable needs, earning capacity, and the standard of living established during the marriage. The starting point for asset division is an equal split, but this is adjusted based on the specific circumstances of the case.

Establishing Jurisdiction in Cross-Border Cases

Hong Kong courts require a substantial connection to the region—such as residency, domicile, or significant assets located here—to hear a divorce case. This is a crucial first step, especially when another jurisdiction may also have a claim. The courts will carefully weigh these factors in "forum disputes" to determine the most appropriate venue for proceedings.

Help is Out There

The discussion underscored several options to seek help for those in difficult situations:

• Professional Help: The discussion highlighted the importance of shopping around for legal representation that is compatible with you and your needs - you must be able to trust them to handle deeply personal and emotionally charged matters with both empathy and professional discretion.

  
  

• Legal Aid Department: For those unable to afford private representation, applying for legal aid is an essential first step to secure legal representation for your divorce proceedings in Hong Kong.

  
  

• Social Welfare Department: In the event that there is a dispute on children care arrangements, the Social Welfare Department will be involved in preparing a report with its recommendation for the children care arrangements, and in cases involving the potential removal of children from Hong Kong.

Conclusion

Family legal matters, from divorce to probate, are inherently complex and emotionally charged. The Hong Kong legal system provides a structured framework for resolution, but navigating it requires expert guidance. Whether you are considering a pre- or post-nuptial agreement, facing a separation, or planning your estate, consulting with a qualified legal professional is the most important step you can take to protect your future.

If you are looking for more support on your journey, you can connect with Jaerey on email at jaerey.velasco@paynevelasco.com, LinkedIn, Instagram or via her firm’s website: www.paynevelasco.com

The information contained herein is for general guidance only and should not be relied upon as, or treated as a substitute for, specific advice. The presenters accept no responsibility for any loss which may arise from reliance on any of the information contained in this blog.