Yes, if the divorcing parties cannot reach an agreement on maintenance payments and division of assets, the parties can ask the court to make court orders relating to maintenance payment orders and transfer of asset. Assets belonging to both divorcing parties (whether in their sole or joint names, and whether in or outside Hong Kong) will need to be disclosed to the court and are taken into consideration by the court.
If an agreement is reached through mediation and submitted to the courts and the judge thinks its terms are reasonable, it is likely that court orders may be given according the terms of the agreement.
If the parties cannot reach agreement, the parties must go through the financial dispute resolution court procedure. All assets, liabilities, income and expenses are required to be disclosed to the courts. Before deciding on maintenance payments for spouses and division of property between the parties, the courts will consider the following factors.
the income, earning capacity, property, and other financial resources of which each party has or likely to have in the foreseeable future;
the financial needs, obligations, and responsibilities which both parties have or is likely to have in the foreseeable future;
the standard of living enjoyed by the family before the breakdown of the marriage;
the age of each party and the duration of marriage;
any physical or mental disability of either party;
the contributions made by each party to the welfare of the family, including any contribution made by looking after the home or caring for the family;
the value of any benefit that party will lose as a result of the divorce
When considering maintenance for children, the ultimate goal is to treat all parties equally, with the children's welfare as the primary consideration. If the parties cannot reach agreement, the courts will make a decision after the parties complete the courts' financial dispute resolution process. The courts will consider the financial capabilities and assets of the parties, their financial needs and liabilities and also consider the following factors when deciding the children's maintenance payments:
the financial needs of the children;
the income, financial capabilities and assets of the children;
the mental and physical health of the children;
the standard of living prior to the breakdown of marriage;
the way in which the children have been brought up and the parties' expectation of the children's education.
In respect of maintenance payment applications from ex-spouses, if any parties give up applying for maintenance payment , then the party cannot re-apply for maintenance payment orders in the future. If the maintenance is for the children, even if there were no court orders in the divorce for children's maintenance, the court will consider applications for maintenance for children.
$1 Nominal maintenance payments are court ordered periodic maintenance payments where a nominal sum (usually $1) is ordered to be paid by one spouse to the other. Nominal maintenance payment orders are made when there are insufficient assets or income to order maintenance payments at the time of divorce. The party in whose favour a nominal maintenance payment order is made will retain a right in the future to apply for maintenance payments should the maintenance payer will have sufficient assets or income in the future.
Periodic maintenance payments when ordered by the court have to pay until the recipient remarries or dies. If there is a decrease in income for a foreseeable period of time, an application may be made to the court to vary the court maintenance payment order.
Parties may seek family mediation services to negotiate and agree on variations in maintenance payments and then apply to the court for variation based on the agreement reached. If the parties cannot reach an agreement, the court may consider the variation application only after the maintenance recipient has established sufficient grounds. The courts will consider every circumstance, including any changes, such as illness, disability, unemployment, increased living expenses, etc. If there are already court orders for spousal maintenance made under the "clean break" principle, ex-spouses cannot apply for further maintenance payment orders relating to the ex-spouse.
Parties may seek family mediation services to negotiate and agree on variations in maintenance payments and then apply to the court for variation based on the agreement reached. If the parties cannot reach an agreement, the court may consider the variation application only after the maintenance recipient has established sufficient grounds under the same situation as the above item.
I. Apply to the courts for a judgment summons requesting the payer to provide an explanation to the court.
If the court accepts the payer's explanation, the maintenance payment court order may be varied.
If the court does not accept the payer's explanation, the court may jail the payer or suspend committing the payer to jail if he pays the defaulted payments.
II. Apply to the courts for an attachment of the payer's income and order the payer's employer to directly pay the defaulted amounts from the payer's income.
Interest on default amount: From 1st May 2005, if the payer fails to pay the court ordered maintenance on time or in full, the recipient is entitled to receive interest on the defaulted amount.
Additional amount: If the payer consistently fails to pay on time, the court may order the payer to pay an additional amount which is not more than 100% of the default amount and the default occurred on or after 1st May 2005.
III. Depending on the assets of the payer, the recipient can consider applying to the courts to freeze the bank accounts of the payer or to impose a legal charge on the payer's assets, etc.
Maintenance payments and seeing the children should separately dealt with. Irrespective of whether there is any opportunity to see the children, both parents are responsible to maintain the children. From another perspective, irrespective of maintenance payments, the parent living with the children should give reasonable opportunities for the other parent and the children to meet in order that the children may enjoy the love and care of both their parents.