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Prenuptial Agreements in Hong Kong

Jeremy D. Morley

Prenuptial agreements for international people based in Hong Kong may be tremendously useful but must be carefully drafted by counsel with international experience and knowledge, says international family lawyer Jeremy D. Morley. The same applies to post-nuptial agreements in Hong Kong.

It should be noted that nuptial agreements between the parties are not included in the list of factors that the Matrimonial Proceedings and Property Ordinance directs a court in Hong Kong to consider in determining the financial consequences of a divorce.

Moreover, the potential and practical effect of both prenuptial and postnuptial agreements under Hong Kong law is quite uncertain,  since they are to be considered under the subjective and ambiguous standard of “fairness.” 

Nuptial agreements were previously considered at common law to be contrary to public policy because they ousted the jurisdiction of the court to grant ancillary relief. The modern English law on nuptial agreements dates from the 2008 ruling of the Judicial Committee of the Privy Council in MacLeod v. MacLeod, [2008] UKPC 64. In that case, the Court decided in favor of the husband (my client) that a post nuptial agreement was valid, binding and could be enforced, but it insisted that courts retained the power to modify such agreements whenever necessary or appropriate to protect the weaker spouse.

In 2011, in the landmark case of Radmacher v. Granatino, [2010] UKSC 42, [2011] 1 A.C. 534, the U.K. Supreme Court extended the MacLeod ruling to prenuptial agreements. Again, it ruled that nuptial agreements could be enforced, but only subject to the overriding standard of “fairness.” A prenuptial agreement might have “decisive weight” but it must always be reviewed on a case-by-case basis for fairness.

In 2014, the Hong Kong Court of Final Appeal ruled that the Radmacher ruling now represented the law in Hong Kong and stated that this applied to postnuptial, as well as prenuptial agreements. The case concerned the impact in Hong Kong of a German prenuptial agreement between German nationals. The Hong Kong court held that the existence of the German prenuptial agreement and also a German separation agreement was plainly a factor to consider on the husband's application to stay the Hong Kong divorce proceedings on the ground of forum non conveniens. SPH v. SA [2014] HKCFA 56.

But how the rule of “fairness” would be applied was not explained.

Indeed, the fairness standard makes it almost impossible to predict the impact that a prenuptial or postnuptial agreement will have on a future divorce case in Hong Kong.

Thus, the 2019 case of LCYP v JEK [2019] HKCFI 1588 vividly demonstrated that fairness is in the eye of the beholder. The court purported to uphold the validity of a New Jersey prenuptial agreement entered into after negotiations, representation by separate and independent counsel and full financial disclosure. Yet it held that, because the parties' circumstances had changed significantly during the marriage in that the husband's business had flourished, the prenuptial agreement was now “unfair” and the court was now required to make a financial award sufficient to maintain the wife for life at a most affluent level, notwithstanding the prenuptial agreement.

The stark difference between the way that the courts in New Jersey would have treated the prenuptial agreement as compared to that of the Hong Kong courts underscores the fact that forum shopping by international people in contemplation of divorce can yield extremely significant results.

Our office has worked on several U.S. – Hong Kong prenuptial agreements. The husband in LCYP was our client. We work globally on divorce forum strategizing. We always collaborate with local counsel in all jurisdictions as appropriate.

Disclaimer: We are admitted to practice only in New York but work as appropriate with lawyers throughout all U.S. states and throughout the world.

 

 

Third Edition of The Hague Abduction by Jeremy D. Morley

Announcing: The Third Edition of The Hague Abduction by Jeremy D. Morley will soon be published by the American Bar Association. The Third Edition has been completely updated to reflect recent case law, especially concerning the key elements of habitual residence and grave risk of harm. The book includes a chapter on International Relocation and Travel. 

Belarus and the Hague Abduction Convention

 The United States has not accepted the accession made by Belarus in 1998 to the Hague Abduction Convention (the 1980 Hague Convention on the Civil Aspects of International Child Abduction).

This means that the Convention is not in force between the two countries.

Therefore, the return remedies set forth in the Convention cannot be utilized in respect of the abduction of children from the United States to Belarus or from Belarus to the United States.

The International Centre for Missing & Exploited Children reported in 2016 that although the Ministry of Justice is the Central Authority for any incoming and outgoing cases under the Convention, no implementing legislation had been adopted in Belarus that describes the return mechanism of an abducted child.

It reported further that the Ministry of Interior of Belarus may issue a Belarus passport for a child upon the consent of only one of the child’s parents.

It also reported that the Law on the Order of Departure from the Republic of Belarus and Entry into the Republic of Belarus by Citizens of the Republic of Belarus of 2009 permits only one parent to remove a child from Belarus.

Seminar on COVID-19 Impact on Cross-Border Marriage, Divorce and Custody

 

Jeremy Morley will speak this Thursday, October 29 at 11am ET in a webinar, sponsored by the American Bar Association, entitled, “All in the Family: COVID-19 Impact on Cross-Border Marriage, Divorce and Custody.”

As the pandemic and its associated restrictions have remained largely in place, divorces appear to be on the rise, child custody battles have intensified, the separation between spouses due to stay at home orders has wreaked havoc on cross-border couples and children visitation rights, and immigration restrictions have prevented spouses from getting married or staying together.

Jeremy will join other experienced and specialized attorneys to discuss these difficult issues and suggest solutions to mitigate the impact of the pandemic on these family arrangements.

To register, visit: https://www.americanbar.org/events-cle/mtg/web/405372130/

 

My recent Interview by Singapore attorney Sarah-Mae Thomas

I was recently interviewed about my practice as an international family lawyer by Singapore attorney Sarah-Mae Thomas. Here are links to the video and the podcast:

https://youtu.be/vgNbsXaY9V4

https://anchor.fm/sarah-mae-thomas

RULING ON MORLEY’S EXPERT TESTIMONY CONCERNING TRAVEL TO INDIA

I just found this ruling from a while back by a judge in Connecticut on the impact of my testimony as an expert witness on India law and practice.

“We, normally in these matters, do not have the opportunity to hear from an expert witness, particularly someone as learned and as experienced in what I'll call international issues as Attorney Morley who was here this morning. As everyone knows Attorney Morley only testified for probably 15 or 20 minutes. We sometimes, lawyers and Judges will discuss people's testimony and sometimes we say it's the quality not the quantity of the testimony that is appropriate. In that 15 or 20 minutes Attorney Morley laid out what I'll refer to as both, I think, the social interaction between the parents and the political in India, the United States, the Hague Convention, their courts, our courts, that sort of thing in a very succinct, intelligent and sophisticated manner; the Court found Attorney Morley's testimony to be extremely credible .

The Court also in observing and reading about the Defendant Father's objection to the Plaintiff taking his daughter on this trip to India is aware of at least one prong of Attorney Morley's comments; he did indicate, my notes reflect this morning that there were two issues here. One would be the, in this case, the mother leaving, extensively staying in India with the child and the Defendant having no opportunity, A) to see the child or B) because of India's steadfast refusal to adhere to the spirit rules and law the Hague Convention having no opportunity to get her back….

But in analyzing the totality of this motion, the affects of this motion, I am brought back with, frankly, some frustration to Attorney Morley's analysis, of what I again will refer to the political aspects of this case.  While this Court is absolutely convinced that Ms. B… has no intention at this time to go to India and not return with her daughter , this Court finds, and I believe this is something that Attorney Morley said today that it is the Country, India, presenting the risk here, not the parent. ‘’’

If god forbid, the Plaintiff were permitted to take her daughter to India and for some reason her daughter were kidnapped or something else happened, there is virtually no way, based on the credible testimony from Attorney Morley the Expert, that this Court or any other Court in the United States would be able to exert one iota of influence to get her back, which is, frankly, if that happened what this Court would be doing in a heartbeat.

India for whatever reason, according to Attorney Morley and, again, I found his testimony to be credible, both the written testimony that was offered and the oral testimony he gave here today, has indicated quite fully that India des not find it a crime … if for some reason this little girl … were snatched over there that the American courts would be able to do anything t get this young girl back to her parents. That is a risk that in the best interests of this young girl I am not willing to take, therefore ... [the] motion for permission to take the young girl to India is denied.”

State Department's Annual Report on International Child Abduction, 2020: UAE

The U.S. State Department has recently released their annual report on International Child Abduction. Below is our tenth post in a series here focusing on the ten countries classified as “demonstrating patterns of noncompliance.” Today’s country is United Arab Emirates.

Country Summary: The United Arab Emirates does not adhere to any protocols with respect to international parental child abduction. In 2019, the United Arab Emirates continued to demonstrate a pattern of noncompliance. Specifically, the competent authorities in the United Arab Emirates persistently failed to work with the Department of State to resolve abduction cases. As a result of this failure, 67 percent of requests for the return of abducted children remained unresolved for more than 12 months. On average, these cases were unresolved for four years and four months. The United Arab Emirates was previously cited for demonstrating a pattern of noncompliance in the 2018 and 2019 Annual Reports.

Central Authority: Central Authority: In 2019, the competent authorities in the United Arab Emirates regularly failed to work with the Department of State toward the resolution of pending abduction cases. Moreover, the competent authorities have failed to resolve cases due to a lack of viable legal options, which contributed to a pattern of noncompliance.

Voluntary Resolution: In 2019, one abduction case was resolved through voluntary means.
Location: The Department of State did not request assistance with location from Emirati authorities.
Judicial Authorities: The United States is not aware of any abduction cases brought before or decided by the Emirati judiciary in 2019.
Enforcement: The United States is not aware of any abduction cases in which a judicial order relating to international parental child abduction needed to be enforced by the Emirati authorities.
Department Recommendations: The Department will continue to encourage the United Arab Emirates to accede to the Convention.