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CHINA (HONG KONG BAR): An Introduction to Family/Matrimonial: The Bar

Hong Kong: An Introduction to Family and Matrimonial Law 

Recognition of Same-Sex Parentage 

This past year saw Hong Kong’s first judgment dealing with the parentage of a child born to a lesbian couple through “reciprocal” IVF (also known as ‘shared motherhood’). In the case of NF v R [2023] 5 HKLRD 58, the parents were married overseas before deciding to have children. However, only the carrying parent was stated to be the “mother” on the birth certificate, although the other had provided the egg and thus both had a biological relationship with their son. An application was brought on behalf of the child for recognition of the genetic mother. The High Court observed that the current state of the Parent and Child Ordinance absurdly did not provide for such a declaration, while an unmarried man who did not even provide genetic material could be declared a father in similar circumstances. Instead, the court recognised the legal relationship of the genetic mother by declaring her to be a “parent at common law”. This remains an area that is likely to see more developments in case law pending any statutory reforms, including in the areas of birth registration and surrogacy (see eg HWH v WYH [2024] HKCFI 1157).

Recognition of Same-Sex Partnerships 

Recognition of same-sex relationships took a massive step forward with the Court of Final Appeal’s ruling in the recent case of Sham Tsz Kit v SJ (2023) 26 HKCFAR 385. This case concerned a homosexual couple who had entered into a same-sex marriage in New York. Currently, under the Matrimonial Causes Ordinance, a marriage is void if the parties to a marriage are not male and female respectively. The Court found that the lack of recognition for long term same-sex relationships was potentially demeaning and failed to meet the basic social needs of such couples. It considered that the constitutional right to privacy was engaged and required an alternative framework for recognition of same sex partnerships (albeit not necessarily “marriage”).

This judgement is ground-breaking, and the government has been given two years to make the necessary changes. The clearest way for the government complying with such a requirement would be the passage of new legislation, but what an “alternative framework” actually means is still up for debate. In the meantime, the Court of Final Appeal will hear three other challenges on the rights of same-sex married couples, in relation to public housing, inheritance and intestacy (see eg Ng Hon Lam Edgar v SJ [2023] 5 HKLRD 608). In any event, one can expect to see rapid change in this area, and the legal landscape ahead will be both exciting and challenging.

Forced Marriage 

Apart from same-sex partnerships, forced marriages have long been an issue in jurisdictions around the world. Although not widely reported, this is also a recurring problem in Hong Kong, especially amongst groups who adopt the practice of arranged marriages. Hong Kong does not have a specific law regarding forced marriages, and in the past this has made things difficult for the party who seeks to withdraw from such a marriage.

However, a landmark judgement was handed down recently in RM v AY [2023] HKFC 59, which granted the first declaration of nullity in a case of forced marriage and marked a significant step forward for victims. The Family Court clarified that where a party’s will was overborne it destroyed the ability to consent to the marriage and a decree nisi of nullity could be obtained. This was also the first case in which the Family Court recognised its jurisdiction over a Muslim marriage celebrated in Pakistan, as the Pakistani marriage in this case was nonetheless determined to be a de jure monogamous marriage.

Recognition of Cross-Border Family Orders 

Hong Kong’s importance as the only common law jurisdiction in China has taken on renewed importance with the recently enacted Mainland Judgements in Matrimonial and Family Cases (Reciprocal Recognition and Enforcement) Ordinance (Cap. 639). Cross-border families have become commonplace, and there is a real need for family law to develop to meet that need. In the past, families have suffered from the failure of courts to enforce and recognise decisions made on either side of the internal border. The new law allows for recognition and enforcement of family judgements between both Hong Kong and the Mainland, including for financial and children’s orders.

Under the new law, custody orders made in Hong Kong will be enforced across the border. This not only provides for increased clarity and certainty to parties, but also allows for a whole new host of possibilities, such as where primary care and control lies with a parent in Hong Kong but the child is able to travel back to the Mainland for defined access with the other parent. It also helps to address the longstanding problem of children who are abducted to or from Hong Kong, and can make securing their return simpler for the left behind parent.

Apart from children’s disputes, the Ordinance also allows for recognition of financial orders and cross-border divorces. Hong Kong is a preferrable jurisdiction for many families in divorce, especially for discovery and sharing orders. This new law simplifies the situation where one party registers their marriage in the PRC but obtains a divorce in Hong Kong. In the past, parties would need to commence a separate action to dissolve their marriage in the Mainland. Under the new system, registration of the divorce with the relevant authorities will do. Similarly, if a maintenance order is issued, parties can register it across the border, which promises to help greatly with enforcement.

It should be noted that there is a statutory time limit for registration of both child-related and maintenance-related orders, the former being within two years of the first date of non-compliance, and the latter being within two years of the date of the financial order.

Family Procedure Ordinance 

Hong Kong’s family procedures have undergone a sea change with the implementation of the new Family Procedure Ordinance (Cap. 646) as well as General Directions 1.1 and 1.2. These developments establish the new system of Family Court Masters as well as target timetables to try to speed up resolution of financial and children’s cases. Importantly, this will mean that many applications will be dealt with by a master, rather than the docket judge as before, and cases will need to be ready for trial at a much earlier stage.

More is yet to come, once the Rules Committee is established to consolidate the various family law regulations and replace them with the anticipated Family Procedure Rules. With all of these changes, it is imperative to keep a firm grasp on the evolving practice and procedure in family work in 2024 and beyond.