50-50 split new starting point for HK divorces

PUBLISHED : Thursday, 06 March, 2008, 12:00am
UPDATED : Thursday, 06 March, 2008, 12:00am

Assets held by Hong Kong couples at the time of their divorce will be split evenly from now on - regardless of who brought them into the union - unless there are exceptional circumstances, the Court of Appeal ruled yesterday.

The principle applied even when the assets brought into the marriage plainly exceeded what was needed to ensure the continued comfort of all parties, a three-judge panel said.

Hong Kong's marital laws are almost exact copies of those in England and Wales. However, until now the city's courts have not followed a landmark House of Lords judgment made eight years ago about the division of assets in a divorce. Yesterday's decision remedies that.

Mr Justice Peter Cheung Chak-yau, Madam Justice Maria Yuen Ka-ning and Mr Justice Johnson Lam Man-hon said the development of the law in England and Wales, while no longer binding on the city as it was before the handover, could not be ignored.

'One cannot see any discernible difference in the social and economic context of these two places which may justify a retention of the former matrimonial practice,' Mr Justice Cheung said.

Until now, Hong Kong courts have assessed what the 'reasonable requirements' of the spouses are and divided the assets accordingly; leftover assets have then been awarded to the breadwinner, usually the husband.

However, the court said this approach was outdated given that society's view of marriage had changed.

'On marriage, the parties commit to sharing their lives,' Mr Justice Cheung, writing the lead opinion, said. 'It is a partnership of equals.'

Even if one of the parties continued to work while the other stayed at home to care for the family, their contributions should be regarded as equal, the judgment said.

'On divorce, the principle and spirit underlining the union should be reflected in the division of the family assets,' Mr Justice Cheung said. '[It] should proceed on the basis of fairness and this necessarily means there is no room for discrimination between husband and wife.

'The starting point is equality in division unless there is a good reason to depart from it.'

The guiding principle, the court said, should be fairness - so in the case of a very short marriage, it might be relevant to consider what each party brought to the union. But otherwise an equal division would be the presumed starting point.

Solicitor Jonathan Mok Chi-ying, a partner of law firm Mayer Brown JSM, said the Family Court had been departing from the 'reasonable requirements' principle in recent years and it was not a surprise that the court had ruled it outdated.

Mr Mok expects prenuptial agreements to become more common in Hong Kong and in other places, such as Australia, which have followed the Lords' 2000 ruling. While such agreements are not binding in England and Wales, courts there have been giving them greater weight.

Wealthy businessman Allan Zeman supported fixing the starting point for divorce rather than leaving it up to a judge to let parties know the consequences of divorce.

'It's fair to both parties,' he said.

Liu Ngan-fung, representing a group which helps battered women, welcomed the recognition of the important contribution of housewives to a marriage.