FAQ

Family & Matrimonial

• How can I make an application for Divorce?
  • Subject to s.12 of Matrimonial Causes Ordinance (Cap. 179) (the "one year rule of marriage") that parties to marriage cannot present a petition to divorce within one year after marriage, divorce can be instituted by either divorce petition or joint application.
    
    
    1. By Divorce Petition
       According to s.11A of Matrimonial Causes Ordinance (Cap. 179), the sole ground for making a petition for divorce is that the marriage has been broken down irretrievably. In order to show an irretrievably broken marriage, the petitioner has to show at least one of the followings:-
       
       
       1. The respondent was proved to have committed adultery and the petitioner finds it intolerable to live with the respondent anymore;
       2. The respondent's behaviours are so unreasonable that the petitioner cannot be reasonably expected to live with the respondent anymore;
       3. The couples have lived apart for a continuous period of at least one year;
       4. The parties have lived apart for more than 2 years before a presentation of divorce petition; and/or
       5. The respondent has deserted from the petitioner for not less than 1 year continuously before a presentation of divorce petition.
    2. By Joint Application
       According to s.11B(1) of Matrimonial Causes Ordinance (Cap. 179), application for divorce can be made jointly by a written notice of intention to divorce signed by each party with the following grounds proved:-
       
       
       1. The parties have been living apart for a continuous period of at least 1 year prior to the joint application; and/or
       2. A written notice for intention to divorce has been signed not less than one year preceding the joint application.
    3. Other Option: Judicial Separation
       Apart from the aforesaid, the parties may consider lodging an application to the District Court for a judicial separation. The major advantage of judicial separation is that the one year rule of marriage does not apply and the parties to marriage still hold themselves as husband and wife. It is particularly suitable for parties who do not want to divorce due to moral or religious reason. However, the same set of proof as divorce has to be shown.
• Upon immigration, can I move my child out of Hong Kong without getting consent of non-removing parent?
  • According to Rule 94(2) of Matrimonial Causes, Rules (Cap. 179A), an application for leave has to be granted before removing a child permanently out of Hong Kong unless the removal is unopposed.
    
    Hong Kong is one of the contracting states to Hague Convention 1980 and has incorporated the convention into local legislation by enactment of Child Abduction and Custody Ordinance (Cap. 512) in order to provide a mechanism for summary return of a wrongly removed child to his/her place of habitual residence. According to Article 3 of the Convention, wrongful removal refers to a breach of rights of custody or access entitled to a person and at the time of removal, such rights of custody or access were actually exercised.
    
    Any act attempting to remove the child without obtaining consent from the divorcing partner may constitute a wrongful removal if any rights of custody or access have been granted to the non-removing parent and he/she did actually exercise such right. In this regard, the non- removing parent is entitled to make an application within one year from the date of removal to Department of Justice for returning the wrongfully removed child unless the child has already settled in the new environment. Yet, please note that the said mechanism of summary return of a wrongfully removed child is only applicable to contracting states to Hague Convention 1980.
    
    Even if there is no rights of custody or access be granted to the non- removing parent or the divorcing proceeding is still pending, the non- removing can institute a wardship proceeding in the High Court or apply for an injunction to prohibit the child from leaving Hong Kong.
    
    Please be reminded child's interest shall be the first and paramount consideration in any custody and access dispute. If you are considering permanently removing a child out of Hong Kong, it is advised to obtain consent from the non-removing parent to avoid potential time-consuming and costly legal proceedings.
    
    
• Can I rely on pre-nuptial agreement to avoid ancillary relief?
  • The landmark Hong Kong Court Final Appeal decision in SPH v SA [2014] HKCFA 56 changes the legal position on pre-nuptial agreement in Hong Kong. Prior to the case, ante-nuptial agreement is not binding to the parties making it and it is only one of the considerations that the Court takes into account.
    
    In SPH, the Court of Appel confirmed the view as stated in L v C [2007] 3 HKLRD 819 that agreements providing future separation are no longer in contrary to public policy. Further, the Court was first given opportunity to consider principles established in Radmacher v Granatino [2010] UKSC 42. In Radmacher, the English Court held that a freely entered ante nuptial agreement should give effect under the conditions that the parties have obtained all material information to enter into such agreement with full appreciation of its implication unless the circumstance is unfair for the parties to be bound. The Hong Kong Court concludes that principles of Radmacher should be regarded as law in Hong Kong in SPH. Further, in LCYP v JEK [2019] HKCFI 1588, the Court provided a clear standard at which needs of the financially weaker party are to be assessed when deciding whether a financial provision set out in a pre-and post nuptial agreement is unfair. The Court adopted the approach used in a number of post Radmacher English authorities that the Court should only make an award to alleviate payee from real need and the fact that an nuptial agreement which does not meet generously interpreted needs will not make such agreement unfair.
    
    
• What would happen if the Court does not give effect to a pre-nuptial agreement?
  • 1. 4 Principles
       Hong Kong Court would follow the approach in LKW v DD [2010] 13 HKCFAR 537 to distribute surplus assets. The Court, with the view of ensuring fairness, highlighted 4 principles applicable to ancillary relief cases in line with the English case White v White [2001] 1 AC 596 and Miller v Miller [2006] 2 AC 618, which reads (1) the objective of a s.7 of Matrimonial Proceedings and Property Ordinance (Cap. 192) exercise regarding financial provision is to maintain fairness between the divorcing parties; (2) gender and/or role discrimination shall be prohibited; (3) Judges should check their tentative views against a ‘yardstick of equal division' and it can only be departed from for good reason; and (4) Rejection of retrospective investigation on the failed marriage.
    2. 5 Steps
       In order to reach fair distribution of assets, the Court would first ascertain financial resources (including assets, liabilities, income and expenses) of each party. There is a duty for the parties to disclose fully and frankly. Only if the parties have surplus asserts, the Court would proceed with examining financial needs of each party. In order to decide the outcome of the ancillary relief case, the principle of equal division will be applied and the Judge would consider whether there are good reasons to depart from it and decide the outcome.
• What are the Ancillary Relief Orders that the Court can make?
  • According to s.3, 4, 5, 6 and 6A of Matrimonial Proceedings and Property Ordinance (Cap. 192), the ancillary Relief Orders that the Order can make can be categorised as (1) Maintenance Order; (2) Lump Sum Order; (3) Settlement of property Order; and (4) Transfer of Property order. In deciding what ancillary relief orders to be made, the Court would consider matters set out under s.7 of Matrimonial Proceedings and Property Ordinance (Cap. 192), including but not limited to the followings:-
    
    
    1. the income, earning capacity, property and other financial resources which each of the parties to the marriage has or is likely to have in the foreseeable future;
    2. the financial needs, obligations and responsibilities which each of the parties to the marriage has or is likely to have in the foreseeable future;
    3. the standard of living enjoyed by the family before the breakdown of the marriage;
    4. the age of each party to the marriage and the duration of the marriage;
    5. any physical or mental disability of either of the parties to the marriage;
    6. the contributions made by each of the parties to the welfare of the family, including any contribution made by looking after the home or caring for the family; and
    7. in the case of proceedings for divorce or nullity of marriage, the value to either of the parties to the marriage of any benefit (for example, a pension) which, by reason of the dissolution or annulment of the marriage, that party will lose the chance of acquiring
    As pre-nuptial agreements are highly complex documents and the outcome of ancillary relief may vary depending on facts of case, it is advised that parties intending to rely on pre-nuptial agreements should seek independent legal advice.
    
    

Employment

• Can an employer terminate the employment contract of an injured employee who suffered temporary incapacity as a result of work-related injuries?
  • S.48 of the Employees' Compensation Ordinance (Cap. 282) (the "ECO") stipulates that an employer shall not, without the consent of the Commissioner for Labour (the "Commissioner"), terminate or give notice to terminate the employment contract of an employee who has suffered temporary incapacity for a period not exceeding 3 days or before the period of temporary incapacity has expired and the compensation has been paid.
    
    For temporary incapacity exceeding 3 days and permanent incapacity, an employer shall not, without consent of the Commissioner, terminate or give notice to terminate the employment contract of an injured employee unless: -
    
    
    1. The Commissioner has issued a Certificate of Compensation Assessment (i.e. Form 5) to the employer and the injured employee, stating the amount of compensation payable by the employer;
    2. Where the temporary incapacity (whether total or partial) of the injured employee is for a period exceeding 3 days but not exceeding 7 days, the employer has entered into an agreement with the injured employee as to the compensation payable by the employer; or
    3. The Ordinary Assessment Board or the Special Assessment Board has issued a Certificate of Assessment (Form 7 or 8) or a Certificate of Review of Assessment (Form 9 or 10) to the employee, the employer and the Commissioner.
    If an employer terminated the employment contract of an injured employee in contravention of s.48 of the ECO, such an employer commits an offence and shall be liable on conviction to a fine at level 6 (i.e. HK$100,000.00).
    
    

Employee's Compensation and Personal Injury

• What kind of employees' compensation can be claimed in a work-related injury?

  • When an employee suffers an injury arising out of and in the course of his/her employment, the employer is liable to pay compensation to the employee under the Employees' Compensation Ordinance (Cap. 282). The usual heads of claim are as follows: -

    1. Periodical payment
       During the sick leave period, the employee is deemed to be in a period of temporary incapacity. The employer is liable to pay the employee four-fifths of the difference between the monthly salary earnings at the time of the accident and the monthly earnings during the period of temporary incapacity. An employee is generally entitled to periodical payments for up to 24 months and the Court may allow an extended period of not more than 12 months.
    2. Compensation for permanent incapacity (if applicable)
       Compensation under this head is further categorized into (a) permanent total incapacity and (2) permanent partial incapacity.
       
       
       1. Permanent total incapacity
          The compensation in the case of permanent total incapacity is as follows:-
          

          AGE OF THE INJURED EMPLOYEE	AMOUNT OF COMPENSATION
          UNDER 40	96 MONTHS' EARNINGS1 OR $537,780.002, WHICHEVER IS HIGHER
          40-56	72 MONTHS' EARNINGS1 OR $537,780.002, WHICHEVER IS HIGHER
          56 OR ABOVE	48 MONTHS' EARNINGS1 OR $537,780.002, WHICHEVER IS HIGHER

       2. Permanent partial incapacity
          Compensation for permanent partial incapacity is calculated by multiplying the amount of compensation for permanent total incapacity (as stated in paragraph (b)(i)) by a percentage of loss of earning capacity. The said percentage is assessed by the Employees' Compensation Assessment Boards appointed by the Commissioner for Labour.
    3. Medical expenses
       Upon the employee's written request to recover medical expenses together with receipts for such medical expenses, the employer shall reimburse the employee for such medical expenses within 21 days. The daily maximum of medical expenses recoverable for either in-patient treatment or other than in-patient treatment is $300.00. If the employee claims expenses for medical treatment both as an in-patient in a hospital and other than as an in-patient in a hospital, the maximum daily rate is $370.00.
    4. Prostheses and surgical appliances (if any)
       If the employee requires a prosthesis or surgical appliance as a result of the work-related injury, the employer is generally liable to pay (1) the initial costs of supplying and fitting the prosthesis or surgical appliance up to a maximum of $44,300.002 and (2) the probable costs of repair and renewal of such an item during a period of 10 years after the initial fitting of the item up to a maximum amount of $ 134,220.002.
       
       
       ¹ Monthly earnings are subject to a maximum of $35,600.00 for work injuries caused by accidents on or after 15th April 2021. Since the amount of compensation may be revised from time to time, please refer to the Employees' Compensation Ordinance (Cap. 282).
       ² Applies to work injuries caused by accidents on or after 15th April 2021. Since the amount of compensation may be revised from time to time, please refer to the Employees' Compensation Ordinance (Cap. 282).
• What kind of damages can be claimed in a personal injury?
  • A victim may make a common law claim for damages sustained in a personal injury when the subject accident was caused by the negligence or breach of statutory duty of a person or entity.
    
    For work-related injuries, the injured employee may make a separate common law claim which is independent of an employee's compensation claim. It is the usual practice to proceed with the employees' compensation first. Any compensation paid under the employees' compensation will later be deducted from the damages recoverable in the common law claim.
    
    The heads of claim of a personal injury are to be considered on a case-by-case basis. The usual heads of claim include:-
    
    
    1. Pain, suffering and loss of amenities
       Damages for pain, suffering and loss of amenities are generally assessed with reference to the seriousness of the injury, the extent of pain suffered and loss to the enjoyment of life. The Court would consider the damages awarded in previous similar cases when assessing the damages.
    2. Loss of earnings
       Loss of earnings is dependent on the earnings of the victim at the time of the accident to estimate the earnings that the victim would have made but for the accident, calculating from the day of the accident to the retirement age of the job. If the remuneration of the post-accident job is lower than the job at the time of the accident, the difference in salary may also be claimed.
    3. Loss of earning capacity
       Loss of earning capacity compensates for the victim's weakened competitiveness in the open labour market. The Court will take into account various factors such as the likeliness of the victim losing his/her job, the time required for the victim to find alternative employment and the reduction in salary as a result of the injury.
    4. Medical expenses
       The cost of medical advice, treatments, medications and operations reasonably incurred may be recovered.
    5. Other expenses incurred as a result of the injury
       Other expenses include travelling fees for attending medical treatments and costs of carers.

Civil Litigation

• What are "sanctioned offer" and "sanctioned payment" ?
  • Both the plaintiff and the defendant can make an offer for settlement by way of "sanctioned offer" and/or "sanctioned payment" after the commencement of proceedings under Order 22 of the Rules of the District Court (Cap. 336H) or Order 22 of the Rules of the High Court (Cap. 4A) (depending on where a claim is commenced). Sanctioned offer is a written offer made by a plaintiff or a defendant to settle the whole claim or part of it whereas a sanctioned payment is a payment into court made by a defendant to settle all or part of a plaintiff's claim.
    
    If a sanctioned offer or sanctioned payment is accepted by either a plaintiff or a defendant within 28 days after the offer/payment was made, the plaintiff generally is entitled to his/her costs of the proceedings up to the date of serving the notice of acceptance.
    
    If a party fails to accept the sanctioned offer or sanctioned payment and such party eventually fails to obtain a more advantageous judgment after trial than the sanctioned offer or sanctioned payment, the Court may impose costs consequences on the party failing to accept the sanctioned offer or sanctioned payment, such as being held liable for the other party's costs on the indemnity basis together with interest at a rate of 10% above judgment rate.
    
    

Probate and Will

• Who is entitled to deal with the Deceased's estate?
  • In order to deal with the estate left under the Deceased's name, a "Grant of Probate" or a "Grant of Letters of Administration" has to be obtained from the Probate Registry of the High Court of the Hong Kong Special Administrative Region.
    
    
    1. With a Will
       The executor shall obtain a Grant of Probate to show the last Will of the Deceased is proved by the Court. The person appointed in the last Will to manage the Deceased's estate (i.e. executor) is entitled to apply for a Grant of Probate from the Court. If the executor does not wish to handle the Deceased's estate or there is no surviving executor, the person entitled to the Deceased's residuary estate has the priority to apply for a Grant of Letters of Administration (with the last Will annexed).
    2. Without a Will
       A Grant of Letters of Administration shall be applied if the Deceased did not leave a valid last Will, or did not appoint an executor in his/her last Will, or has revoked his/her last Will in his/her lifetime. The person to be appointed shall be aged 21 or above, mentally and physically capable and able to manage his/her affairs.
    Pursuant to rule 21 of the Non-Contentious Probate Rules (Cap. 10A), if the following persons have a beneficial interest in the Deceased's estate, they shall be entitled to a Grant of Letters of Administration in the following order of priority:-
    
    
    1. The surviving spouse of the Deceased;
    2. The children of the Deceased or the issues of any such child who has died during the lifetime of the Deceased;
    3. The surviving parent of the Deceased; and
    4. The siblings of the Deceased or the issues of any such sibling who has died during the lifetime of the Deceased.
    Pursuant to s.25(1) of the Probate and Administration Ordinance (Cap. 10), there can be more than one administrator or executor to deal with the Deceased's estate. However, the number of the executor or the administrator shall not be more than four persons.
    
    
• How can the Deceased's estate be distributed?
  • The person(s) who is entitled to the Deceased's estate called a beneficiary.
    
    
    1. With a Will
       The distribution of the Deceased's estate will be made in accordance with the last Will after it is proved by the Court. If there is no beneficiary named in the last Will, the distribution of the Deceased's estate will be made as if there is no Will.
    2. Without a Will
       The distribution of the Deceased's estate will be made in accordance with the s.4 of Intestates' Estates Ordinance (Cap. 73).
       
       
       1. The Deceased only leaves a spouse
          The surviving spouse is entitled to the residuary estate of the Deceased.
       2. The Deceased leaves a spouse and issue(s)*
          Even there are surviving parents and siblings, only the surviving spouse and the issue are entitled to the Deceased's estate. The surviving spouse is entitled to the first HK$500,000 from the Deceased's estate and all the personal chattels of the Deceased. After distributing the aforesaid sum to the surviving spouse, the remaining sum (if any) will be divided into 2 equal parts. One part will be distributed to the surviving spouse and another part will be divided into equal parts among the issue(s).
       3. The Deceased leaves a spouse and parents (or siblings)
          The surviving spouse is entitled to the first HK$1,000,000 from the Deceased's estate and all the personal chattels of the Deceased. After distributing the aforesaid sum to the surviving spouse, the remaining sum (if any) will be divided into 2 equal parts. One part will be distributed to the surviving spouse and another part will be divided into equal parts among the surviving parent(s) (if there is no surviving parent(s) but there is surviving sibling(s), the another part will be divided into equal parts among the surviving sibling(s).)
       4. The Deceased only leaves issue
          The surviving issue is entitled to the residuary estate of the Deceased.
       5. The Deceased leaves parents
          The surviving parent is entitled to the residuary estate of the Deceased. If there are surviving parents, the residuary estate of the Deceased will be divided into equal shares and be distributed to them.
    Please note that if non-Hong Kong property is involved (especially immovable property), the executor or administrator may not be able to manage and distribute the Deceased's non-Hong Kong property from the Deceased's estate in accordance with the laws of Hong Kong. If a non-Hong Kong property is involved in the Deceased's estate, please seek our solicitors for legal advice.
    
    In any events, the executor or the administrator has to repay the Deceased's debts, funeral expenses and other expenses in relation to the Deceased's estate before distribution of the Deceased's estate.
    
    It is a criminal offence under s60J of the Probate and Administration Ordinance (Cap. 10) for anyone to deal with the estate of the Deceased who die on or after 11 February 2006 without lawful authority or reasonable excuse. Such person shall be liable on conviction to a fine at level 3 and an additional penalty equal to the value of the intermeddled part of the estate or the intermeddled part of the income of the estate.
    
    ^*Issue means any descendants of a person
    
    
• What are the formalities and the advantages of making a Will?
  • Any person aged 18 or above can make a Will.
    
    Formalities of making a Will
    1. The Will should be in writing.
    2. The Will should be signed by (i) the will-maker or (ii) a person in the presence of or by the direction of the will-maker.
    3. The signature of the will-maker should be witnessed by 2 people who aged 18 or above and they should also sign on the Will in the presence of the will-maker.
    4. The witness and his/her spouse should not be the beneficiary in the Will. Otherwise, the gift to that beneficiary or those beneficiaries will be voided.
    Advantage of making a Will
    If a person makes a Will, he/she can:-
    1. appoint an executor or executors (no more than 4) to help him/her distribute his/her assets; and
    2. distribute his/her assets to anyone he/she wants to such as friends and charities, instead of distributing in accordance with s.4 of Intestates' Estates Ordinance (Cap. 73).
    We are advised the Will-maker to make his/her Will when he/she is healthy, so it will save time and costs to prove his/her intention and mental capacity at the time he/she made instruction and signed the Will. Having a well-drafted Will at the right time can minimise the potential disputes among the family members and friends of the Will-maker after he/she passed away.
    
    As such, it is important for the family members to check carefully if the Deceased left a last Will before applying for a "Grant of Probate" or a "Grant of Letters of Administration" from the Court as it may affect the procedure to apply a "Grant of Probate" or a "Grant of Letters of Administration" afterward. Meanwhile, it is extremely helpful if the applicant could tell which bank(s) and/or company(ies) maintains the Deceased's estate and it would even be better if they could ascertain the sum of the Deceased's estate. Please be reminded that if the Deceased had a bank deposit box, the applicant shall approach Home Affairs Department for an inspection of a Deceased's bank deposit box, so that those properties inside can be listed in the Grant of Letters of Administration. Please do not open the subject safety box without notifying Home Affairs Department. Otherwise, the doer may be liable to intermeddling.
    
    
• Can I revoke my last Will?
  • A last Will can be revoked at anytime in the lifetime of the Will-maker (i.e. testator). Usually, a testator has to take action to revoke his/her last Will such as (a) by his/her written revocation; or (b) by himself/herself or by some person in his/her presence and by his/her direction, burning, tearing, or destroying the last Will with the testator's intention of revoking the same; or (c) making a new Will.
    
    However, apart from the above, a subsequent marriage (a marriage occurred after the last Will was made) can also revoke the last Will. In the event that the subsequent marriage contracted in Hong Kong under Marriage Ordinance (Cap. 181) or contracted outside Hong Kong in accordance with the law in force at the time and place where the marriage was performed, the last Will will be revoked automatically unless it is proved that the last Will was drafted in contemplation of that marriage such as (1) the testator is expecting to be married to a particular person and he/she intended that the Will should not be revoked by that marriage or (2) a clause is inserted in the last Will stating that the subsequent marriage with a particular person shall not revoke the last Will.
    
    In addition, if a last Will specifically states the spouse of the testator is entitled to some assets from the estate of the Deceased, however, the testator and his/her spouse subsequently divorced. The former spouse may not be entitled to those assets unless a contrary intention is proved.
    
    

Property

• What are the usual terms included in the Provisional Sale and Purchase Agreement?
  • A provisional sale and purchase agreement is usually provided by an estate agent containing the following terms:-
    
    
    1. The details of the parties, namely the vendor and the purchaser (if a party to the agreement is a limited company, the full name and the business registration number of the company must be stated);
    2. The address of the property;
    3. The price of the property;
    4. The payment manner including the amount of initial deposit to be paid by the purchaser at the time of signing the provisional agreement (usually 3-5% of the purchase price), the amount of further deposit to be paid by the purchaser (usually 10% of the purchase price taking into account the initial deposit paid upon signing of the provisional agreement) and the balance of the purchase price to be paid by the purchaser on the completion day;
    5. The date of signing the formal agreement;
    6. The completion day;
    7. On what condition the property is sold;
    8. The party who bears legal costs and stamp duty;
    9. The liability of the party who fails to perform the provisional agreement after signing the same; and
    10. The payment of the commission of the estate agent.

    However, please note that these terms are subject to the actual construction of the provisional agreement made between the parties in each individual case.

• How many ways can I own a property? What are the differences between them?
  • There are three ways to own a property: Sole Ownership; Joint Tenants and Tenant In Common.
    
    
    1. Sole Ownership
       Sole ownership refers to a property owned by one person only and that person is the sole owner of the property.
    2. Joint Tenants
       A joint tenant does not hold any interest in the property in his/her individual capacity. His/her interest is that he/she holds jointly with his/her fellow joint tenant(s).
       
       Joint tenants have a special feature known as the "right of survivorship". When a joint tenant dies, his/her interest is automatically extinguished and the surviving joint tenant(s) become(s) entitled to the property. If there are two joint tenants, the surviving tenant will become the sole owner of the property.
       
       If there are more than two joint tenants, the shares of the late joint tenant will be passed to the surviving tenants jointly. No instrument is required to bring the right of survivorship into effect. Instead, the surviving joint tenant(s) shall register the death certificate in the Land Registry for the purpose of proving its title to the property.
    3. Tenant In Common
       A tenant in common holds a separate interest in the property and the shares of tenants in common may be unequal. A tenant in common's interest forms part of his/her estate upon death and passes according to his/her will or the law of intestacy.
• Can I sell my property if I am one of the Joint Tenants/ Tenants in Common?
  • If you own a property in forms of Tenants in Common, you can always sell your shares in the property to a purchaser without prior consent or agreement of the other co-owner as a Tenants in Common.
    
    If you own a property in forms of Joint Tenant, since you do not own a distinct share in the property, you have to sever the joint tenancy first by way of procedure described in s.8 of the Conveyancing and Property Ordinance (Cap. 219) before you can sell your share of the property. You should seek legal advice if you wish to sever the joint tenancy.