Beyond the great divide

PUBLISHED : Sunday, 05 February, 2012, 12:00am
UPDATED : Sunday, 05 February, 2012, 12:00am


Ideally divorcing couples can part as friends. In real life, though, the process can get very ugly, with drawn-out disputes over issues like division of assets and alimony payments. Fights can get particularly nasty when children are used to get back at an estranged spouse, as former nurse Doris Chong Lai-man knows only too well.

Although her marriage ended last year, the 47-year-old and her ex-husband, a civil servant, continued to quarrel over the upbringing of their two teenage sons.

'My boys have had behavioural problems since I separated from him,' Chong says. 'They have low confidence and fight all the time. So I wanted to sign them up for activities they were interested in to help them vent their anger.

'My older son likes playing piano. But my ex-husband refused to buy a piano for him. When I proposed enrolling [our sons] in a study tour in Australia he said no again. This was despite the fact that I offered to pay all the expenses.

'He attaches too much importance to money. He is afraid that I will ask him for money after I use up my savings.'

Divorce is on the rise in Hong Kong with 18,167 cases registered in 2010, up 35 per cent from 2001. At the same time, more divorced couples are turning to the courts to settle their disputes. District courts handled 17,359 new matrimonial cases in 2010, compared with 13,737 in 2001.

To reduce bitter custody battles, the government proposed last month that divorced couples have joint responsibility for raising their children. Public consultations on the proposal will continue through April, but organisations involved in family welfare say the model is not feasible without a compulsory mediation system and adequate co-parenting education.

Paulina Kwok Chi-ying, supervisor of Caritas Family Crisis Support Centre, says co-parenting requires the divorced couple to reach a consensus on many children's matters.

'This is impossible to do in cases where there is imbalance of power between the couple,' she says.

Under existing law, the parental rights of a divorced couple are assigned through custody orders.

The judge may make a sole-custody order, which empowers one parent to reside with the children and make important decisions about them while allowing the other parent visitation rights.

In a joint-custody order, both parents share the power. The government's proposal would make joint responsibility a default arrangement. But family counsellors suggest mandatory mediation is needed for the co-parenting model to function.

'A failure in communication [probably] led to their divorce in the first place. The need to consult the spouse regularly [may] lead to more conflicts,' Kwok says.

'Unco-operative parents might use the proposed arrangements to manipulate or threaten the ex-spouse. They need to gain the consent of the spouse in major decisions concerning children, such as change of surname, migration or when leaving Hong Kong for more than a month.'

Doris Chong, for example, had sought the help of a mediator with the Hong Kong Catholic Marriage Advisory Council to break the stand-off with her ex-husband.

'We have divergent views on how to spend money and parenting, which led to our divorce,' she says.

'But he refused to see the mediator. He wanted to manipulate my emotions. He knew that I might buckle under his influence without the presence of a third party.

'Before our divorce, he yelled at me so much that I couldn't sleep sometimes. But the judge in the family court ordered him to see the mediator. Only through the help of the mediator were our disputes over alimony and asset division settled.'

American divorce coach Micki McWade, author of Getting Up, Getting Over, Getting On: A Twelve-Step Guide to Divorce Recovery, says divorced couples should learn to see their conflicts from their children's perspective.

'It's not easy for the children to deal with parents separately. They need to go back and forth between homes and get used to the fact that their parents are not together anymore,' she says.

'So instead of focusing on what the spouse said or did to them before, [parents] should be forward-looking. They need to know that they are connected through the child forever. There are plenty of days ahead when they [might] have to join the birthday, graduation and wedding celebrations of the child together.'

That's easier said than done, which is where mediators come in. As neutral parties, they can help couples who are otherwise blinded by hatred and self-interest to see the alternatives available to them, says Chow Siu-ling, mediation service supervisor of the Hong Kong Catholic Marriage Advisory Council, which handles more than 200 such cases every year.

'We remind them [of] the importance of making compromises for the children's sake ,' she says.

'To help the divorcee remain calm, we never mention the issue of custody at the beginning of mediation. In separate meetings with the father and mother, we ask them to outline their schedules, and available time to take care of the kids and [their] usual parental duties.

'Children need routine. Parents should work out the best ways to minimise changes to schedules and habits of the children. If the mother is the one who takes the child to swimming or dancing classes, she should continue to do it.'

Chong credits counsellors at the Council for teaching her to avoid drawing her children into the marital conflicts.

'I've learned how to be a single mother without depriving [my ex] of his parental rights. I understand the importance of not bad-mouthing him in front of the children. I learn to be forgiving and tolerant. I don't want my children to be upset by our arguments.'

For former construction worker Chan Keung, ending his 20-year marriage was a painful experience. Chan remained close to their children even as the marriage unravelled and he was keen to retain custody, but it was a struggle.

'My kids, who have been living with me since we separated, did not want to see her at all. But she still wanted to fight for custody as I would have to pay alimony if she was living with the kids,' he says.

The 52-year-old, who took early retirement in 2007 after suffering a head injury in an industrial accident, says the custodial tug of war took a big chunk out of the compensation he received. Not only did he seek legal advice, Chan hired a private detective to gather evidence of his wife's infidelity to boost his chances.

'My lawyer charges HK$3,000 per hour, so I spent more than HK$100,000 in legal fees. My detective cost HK$6,000 per day. All the detective work and lab tests cost me another HK$100,000. My lawyer told me that it would cost another HK$300,000 if I had to convince the judge in court that she committed unreasonable behaviour.'

In May, Chan applied for financial help from the Legal Aid Department, which referred his case to the council for mediation, and the process has helped keep his legal fees from snowballing.

'The fight already took a big bite out of [compensation]. I want to reserve the remainder for the education of my two children, who are both excellent students,' he says.

'If I were to press my case further in court, my children would have to be dragged before the judge. I didn't want them to have to face the humiliation.'

After a month of mediation, his wife agreed to give up custody of the children, now aged 13 and 15.

'When she was living with us, my wife used to withhold the family income for her own use. After the mediator explained to her the odds of gaining custody in court was low, she finally agreed to waive all my alimony payments.

'Instead of corresponding through lawyer letters, we got the help of a third party to express our wants and conditions. I hadn't been able to talk to her at all since we separated in 2009.'

Protracted matrimonial disputes take a toll on both parents and children, Chow says.

'Even after the judge hands down orders about custody and alimony, some couples still take ensuing disputes over alimony payment and visitation rights to the court. I have seen divorce cases lasting over a decade. Driven by the interminable lawsuits, the bitterness keeps them up at night and makes them depressed. In the face of angry and hateful parents, children will develop all kinds of behavioural and emotional problems.'

That is why, while applauding the spirit behind the government's proposed model of joint responsibility, Chow calls on officials to put in place support measures like expanding the corps of family mediators and provide co-parenting education.

'They must make mediation compulsory, as is the case in countries like Australia that have joint responsibility laws,' she says.

'Currently, if the couple agrees to mediation, the Family Court will refer them to us. There are only around 100 mediators on the government list. We are the only organisation providing co-parenting education now. We will be burdened with [a] much heavier workload after the joint responsibility model is implemented.'

The proposed model of joint responsibility for raising children of divorced couples can be traced to a 2005 report released by the Law Reform Commission.

Joining the dots

The report on Child Custody and Access recommended a joint parental responsibility model, highlighting similar models in England, Scotland and Australia. But commission studies found that England and Australia continued to face problems after joint responsibility laws were introduced.