JOCELYN TSAO is a partner in the divorce and family law team at Withers Hong Kong. We asked her to answer some EL readers’ questions on different aspects of the law that have increasingly been coming under the spotlight in recent times, including divorce, child custody and prenuptial agreements.
I want to relocate to my home country, but my husband isn’t keen to leave Hong Kong. Can I move with my children without his consent?”
No, you shouldn’t relocate the children out of Hong Kong without the other parent’s consent. That is so especially if HK is the children’s habitual residence.
If you take the children away without the other parent’s consent to a signatory of the Hague Convention on International Child Abduction (such as Singapore, the UK or Australia), the other parent can immediately take out an application to Court under the Hague Convention to ensure the prompt return of the children through cooperation between the central authorities of the two countries.
If the wrongful removal of the children is to a country which is not a signatory of the Hague Convention (such as Taiwan, China or Japan), then it poses a difficulty and delay in having the children returned to Hong Kong; the only recourse the left-behind parent has is to apply for a return order from the Hong Kong Court, and then finding a way to enforce that in the country to which the children are removed to.
Is a prenuptial agreement a good idea? I’d never considered it until a friend mentioned it to me after hearing I was engaged.
Although prenuptial agreements are not romantic and can be a difficult conversation to have with your fiancé, it’s always a sensible investment to make. Many compare prenups to an insurance – it’s not something you plan to use, but it’s there if you need it. Not only does a prenup thwart a costly and contentious divorce if the marriage doesn’t work out, but the secondary benefit of discussing a prenup is that it forces partners to communicate with each other on their financial goals and attitudes about money, and to be forthcoming with each other on their existing financial situation including any debts that one may have.
What people must not forget is that marriage is not just about the wedding dress and bliss; more importantly, it comes with financial implications and responsibilities by law. Nowadays, a common structure to a prenup for young, financially independent couples would be that each of them keeps their own assets and income, and shares what they have both decided to put under joint names or joint ownerships.
I’m in the early stages of divorce and I’m worried about how my child will react to things. What can I do to minimise the impact on them?
The most important thing is not to bring your children into the conflict between you and your divorcing spouse. It’s tempting to make negative comments about the other parent to the children out of anger or resentment, but doing so will only hurt the children and place them in a loyalty conflict. Reassure them that both their parents love them.
Even if you feel insecure about the relationship your children have with the other parent, remind yourself to put the children’s interests first by encouraging them to have a relationship with the other parent. Give the other parent the benefit of the doubt that they can be an equally good parent, even though you feel inclined not to trust them.
If you’re already living separately from your divorcing spouse, make the children’s transition between the two households easier by agreeing on a consistent, structured routine where the children know exactly what to expect and where to go. It’s important to give the children stability during this hard time by preserving as much of their usual routine and normalcy as possible.
My business partner is also my spouse; is there a way I can reach a settlement in a divorce instead of going to court?
It is of course possible – and advisable – for you to reach a settlement with your spouse instead of going to court. If you are both invested in a commercial venture together, the common way forward when it comes to a divorce would be for one partner to buy the other out, and continue running the business as usual. This would work in a situation where one spouse is more involved in the day-to-day operations of the company and/or plays a more pivotal role in the business.
If you both want to maintain a role and interest in the company and the divorce is amicable enough to enable a working relationship, you may consider running the business together despite a divorce. It’s possible for you both to remain as shareholders but you would need further advice on how the shares would be held. Courts generally prefer a clean break between divorcing parties so negotiations and settlement would be your best bet. Also, you may need to get advice on how to hold your shareholdings. It may be that the party who retains the business cannot afford to buy you out and some retention of shares may be the only practical solution.
If you’re unable to agree on the way forward, then the last resort is to sell the business and divide the proceeds, which may not be the most economical or preferred resolution for you both. Ultimately, you and your spouse know what’s best for your company as business partners, so it’s always wise to reach a settlement between yourselves rather than relying on the court to adjudicate; the court can be a blunt instrument, which means it’s likely to order a straightforward sale or transfer of the company.
About Jocelyn
Jocelyn started her family law practice in 2007, and advises husbands, wives and unmarried partners on all aspects of matrimonial law including divorce and prenuptial agreements; she’s also passionate about cases involving children’s interests, custody, care and control, and has successfully dealt with a number of child relocation cases. She is an experienced advocate in court as well as a seasoned negotiator in mediations.
For more advice on family law in Hong Kong, email jocelyn.tsao@withersworldwide.com.
withersworldwide.com
This article first appeared in the Spring 2022 issue of Expat Living magazine. Subscribe now so you never miss an issue.
