Considering collaborative practice for divorce in Hong Kong
20 February 2023 | Applicable law: Hong Kong | 4 minute read
It is widely recognised that the divorce process is one of the most stressful experiences ordinary people may have to endure. Even when a couple believe that they can solve all of the issues which arise during their separation, the nagging belief that they may not have received their fair share of the marital assets, or their share of their children's time, often remains.
Popularity of mediation
Over recent years, the process of mediation has become more popular. Mediation gives the parties more autonomy in reaching their own result with the assistance of a trained third party. It has also been incorporated into the court system for dispute resolution in many jurisdictions, including Hong Kong where a Family Judge may direct the couple in resolving their differences via mediation. The ability for couples to resolve their own conflicts on their own terms is better for their long-term relationship and, most importantly, for their children.
Typically, in a private mediation, the parties will attend a meeting with their lawyers in attendance, hoping to reach a compromise with the assistance of the mediator. Generally speaking, these are the only individuals involved. Mediation is an excellent way to settle a dispute but there may be some need for other professional help, such as from an accountant to verify certain financial details, which may become a hurdle if one party does not trust the figures provided by the other party or a parenting coordinator if they are not able to reach an agreement on specific arrangements for their children.
Alternative dispute - collaborative practice
Though mediation has become common practice now in Hong Kong, an alternative known as collaborative practice is now on the rise. As with private mediations, as opposed to court led settlement hearings, collaborative practice is also a voluntary process. Lawyers who are specially trained can assist parties to resolve their differences, often with the help of other professionals such as accountants or child psychologists. All parties will sign a Participation Agreement where the common aim is to come up with a settlement. If they are unsuccessful, the lawyers and other experts can no longer represent the couples on the case.
There is no limit to the topics to be discussed in the collaborative process, including how to deal with the divorce itself which may be a highly emotional issue to the parties themselves. In litigation, parties may become polarised on this initial issue which could cloud their ability to settle later on. If this can be resolved amicably, it sets the tone for later discussions.
Concerning children, there is much greater scope for considering the details which are important for day-to-day childcare. A detailed parenting plan can be thoroughly drawn up and difficult terminology such as custody, care and control and access, which may easily be misunderstood, can be avoided all together. If the child is affected by the divorce or separation, the parents may amicably discuss and come to an agreement if some degree of therapy is necessary to tide the child through the most difficult periods. Furthermore, couples may jointly select a child psychologist to be involved, in place of having multiple child experts and social welfare officers interviewing them for their views and feelings. Other individuals who are important to the child may also be involved, such as their teachers or grandparents.
In respect to finances, lack of trust and belief that each party has been open and honest in their financial disclosure are potential hurdles for settlement that can lead to escalating divorce costs. If all parties in the room are genuinely keen to settle, then a rigorous discovery process must be undertaken which can be done if all parties are looking at the same documents, often assisted by forensic experts who can advise the parties whether the disclosure is sufficient or not. This could include accountants who can advise on, for example, company accounts, or valuers of property or other experts such as pension advisers or advice on Duxbury calculations1 or what would be reasonable expenses for the wife and child(ren). If it is not only the lawyers giving the advice, the parties may well receive a necessary reality check on their expectations, either from the perspective of the receiver of financial provision or the provider.
With everyone in the room set on finding a realistic and balanced solution in order to avoid litigation in court, the emotional trauma of the divorce process can be reduced. The process, although complex in many cases, would undoubtedly be shorter than the court process which tends to suffer long delays due to a busy court system. This can only be to the benefit of the parties and their children.
Collaborative practice in Hong Kong is relatively new, but there are now over 40 qualified practitioners, including solicitors and barristers as well as psychologists and psychotherapists, which indicates that those who are frequently involved with divorce and separation cases recognise a need for a better way to solve problems in family law. Three of the qualified practitioners are with the Withers Family Team: Samantha Gershon, Billy Ko and Anisha Ramanathan. Anisha is a member of Hong Kong Collaborative Practitioner's Group Executive Committee. Should you have any questions, please do not hesitate to contact us.
- A Duxbury calculation is based on the receiving parties age, required annual income need and their estimated life expectancy, together with allowing for considerations such as the rates of capital growth and inflation.