Children of married, unmarried parents equal under maintenance laws

With a rising number of unmarried couples, the law has evolved in the area of maintenance orders for children born out of wedlock.

Formerly, different financial provision orders were available to children of married and unmarried couples, with limited provisions to the latter, but England has long removed this disparity.

It is accepted that the law should treat all children equally, but our legislation is not identical to English law.

The question of whether the courts here had the power to order a lump sum payment or settlement of money for the purchase of property for children of unmarried couples was the subject of a recent appeal.

In this case, the parties were unmarried and had a child during their relationship lasting almost four years.

Upon separation, the mother moved out with the child and the father continued to provide maintenance, including rental. The mother initiated proceedings seeking maintenance for the child and a lump sum for the purchase of property.

The Family Court judge found he had no jurisdiction to make a lump-sum or settlement-of-property order for such a purpose. The mother disagreed and appealed to the Court of Appeal.

Under Britain's Children Act, which applies to children of married and unmarried parents, such orders can be made for any purpose.

There is similar provision under section 5(2)(c) of Hong Kong's Matrimonial Proceedings and Property Ordinance (MPPO), which does not impose limitations on lump sum payments ordered for the benefit of children of marriages, but this applies only in divorce.

In contrast, section 10(2)(a) of the Guardianship of Minors Ordinance (GMO) concerning lump sum payments is limited to the "immediate and non-recurring needs" of minors. It would appear that the financial provisions available for children of unmarried couples and the nature of lump-sum orders under the two statutes are different.

In its judgment last week, the appeal court concluded that, notwithstanding such a difference, no discrimination against children of unmarried couples arose.

While a lump sum under the MPPO can be ordered only once so as to achieve a clean break for divorcing couples, the court acknowledged that unmarried parents might occasionally require additional funds to meet a child's immediate and non-recurring needs - that is, medical treatments, particularly when the child is still a minor.

Parents should be able to make further applications under the GMO.

The court further clarified that an accommodation need was recurring and lump sum payments did not apply to property purchases.

It was also confirmed that settlement-of-property orders under section 10(2)(e) of the GMO was by virtue almost identical to the provision in the MPPO, and therefore included settlement of money for the purchase of property, which was not confined to landed property.

The court noted in this case that the child's accommodation needs had been met by the father's willingness to pay for rental, including rent increase, of the flat the mother chose.

The father did not oppose, in principle, buying a property, which he could reclaim when his maintenance obligations towards the child ended. But the court accepted that he had a real and reasonable concern about the timing of a property investment given the nature of the local property market, and did not make a settlement-of-property order.

The mother's appeal was accordingly dismissed.

This judgment confirms that children of married and unmarried couples in Hong Kong are treated equally. Irrespective of the nature of the couple's relationship, a parent can apply for the same financial orders for the benefit of their child.

Jonathan C. Y. Mok is a solicitor advocate with the Higher Rights of Audience in civil practice and Carmen Cheng is a practising lawyer