01 December 2015

How Hong Kong’s children of unwed parents miss out in a break-up


Samantha Gershon
Partner | Hong Kong

Is there discrimination against children born out of wedlock? In practice, the judiciary in Hong Kong makes every effort not to discriminate against such children. But on the face it, with the legislation as it presently stands – the answer is yes. The legislation which protects married couples and their children is significantly stronger than that which deals with children of unmarried parents.

As most people know, the rights of the parents are fewer if they are not married – there is limited financial relief for those people rather misleadingly referred to as “common-law wives” (or husbands these days). They are limited to a “carer's allowance” for looking after the children but are entitled to no financial provision in their own right, and fathers have no custody rights unless they make a specific application to the court.

There are those who argue that it is right that the position of an unmarried couple should be different from those who have committed to marriage. That debate is a matter for Hong Kong society as a whole and beyond the scope of this article, but it has been generally agreed that such decisions by parents should not affect their children.

The fact that the children of cohabiting couples are treated differently is a problem which urgently needs attention as the prevalence of such families are on the increase in Hong Kong and around the world.

The Census and Statistics Department report on Marriage and Divorce Trends issued in January this year showed that there was an increasing trend towards marriage postponement or non-marriage in both genders between 1991 to 2011. The proportions of married men and women also dropped continuously over the same period, suggesting an increase in cohabiting families.

This mirrors a trend elsewhere: in the UK, numbers of cohabitees have increased by 12 per cent from 1996 to 2012 according to the Office of National Statistics. In the US a government census shows a marked increase in the number of cohabitees, with 7.8 million couples living together without walking down the aisle, compared to 2.9 million in 1996, and most of the increase was in the younger adult population.

This question came into focus this year in the Court of Appeal where a mother sought a lump sum provision for her five-year-old daughter, specifically for the purchase of a property. The parents, both British expatriates, had been cohabiting for four years, during which time their daughter was born. After the relationship broke down, the mother and her two daughters (one from a previous marriage) moved into a separate apartment.

For separated couples who never married, Hong Kong law allows one parent to seek a lump sum from the other parent, to provide “financial relief” for the child. However, the underlying principle applied in such a case differs from the principle followed for children of married parties, which is to try to place the child in a financial position as if the relationship had not broken down.

Also, while monthly maintenance can be ordered for the child of unmarried parents, a lump sum can only be made in respect of a child's “immediate and non-recurring needs”.

This is different from the legislation for children of married parents, which makes no such restriction, and also differs from the position in England where such orders for lump sums for the purchase of property are regularly made, if the parent can afford it.

In addition, a transfer of property or settlement to benefit the child of unmarried parents can only be made if the property is already owned by the parent and if the court thinks it is reasonable to do so, having regard to the means of the parent. There is no such limitation for the children of married parents.

In this year's case, the trial judge found that he was bound by the statute and that he was unable to make an order for a lump sum because, purchasing a home was not an “immediate and non-recurring need. Housing is clearly an ongoing and constantly recurring need. He also did not think he had jurisdiction to order the father to purchase a property in order to have it settled in favour of the child.

The Court of Appeal agreed the court lacked the power to make a lump sum order to purchase a property. However, it disagreed with the trial judge on the settlement and found that the father could put money into a trust for the child, which could be used to purchase a property for the family to live in.

On the facts of this case, however, the Court of Appeal refused the mother's application on the basis that the monthly maintenance provision provided adequate security. The case went all the way up to the Court of Final Appeal which refused to allow the mother's application for leave to appeal. The judges were of the opinion that the Court of Appeal had resolved the problem, and agreed that the mother had been adequately provided for by monthly rental payments.

The mother argued that this did not reflect the position in the UK where lump sums were regularly given where the father had unrestrained resources and the family were used to living in owned accommodation.

The mother in this case was left with a significant bill for costs, despite her limited resources, and this was an expensive case for all concerned.

What is really required is a change in the legislation to clarify once and for all that there should be no discrimination and that there is no difference whatsoever in the treatment of children of unmarried parents. Until this happens, despite the courts' best efforts, there is an inherent discrimination. And, as succinctly put by the trial judge when this matter went back before him in July, “Mothers in many cases, as no doubt the one before me, would simply feel discriminatively aggrieved by the apparent injustice or unfairness so caused”.

Often in these cases there is a significant difference in financial power between the parties. In addition there is the extraordinary anomaly that even where the paying party has died, the mother of a child will have a greater claim on the father's estate than a living ex-cohabitee.

The trial judge recently called for legislation to help cohabitants and their children avoid the sort of expense incurred in this case. We agree, and the sooner the better.

In the meantime, cohabitees beware: if you are an expatriate, you may wish to consider bringing your case elsewhere, or consider tying the knot!

The article was originally published in South China Morning Post on 1 December 2015.

Samantha Gershon Partner | Hong Kong

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