Division of Property in Hong Kong Divorces: Typical Cases of Property Distribution
Yau & Cheung, [2023] HKFC 169
The main asset was a Hong Kong property in the name of the husband, which the husband inherited. The husband lived separately in Shenzhen and Hong Kong for 6 out of the 7 years of the marriage, and only lived together in the Hong Kong property for 1 year.
Judgment: (1) The property was matrimonial property because the couple lived together in the property for one year; (2) After seven years of marriage, the property should in principle be divided equally between one person and one person; (3) Considering that the property was acquired by the man’s inheritance, the couple used the property as their matrimonial home for only one year and the woman did not make a good faith disclosure of the property. It was decided that the property should not be divided on an equal share basis: the woman was to receive 35% of the share of the property and the man 65%.
Chan v Zung, CACV 461/2022
The main asset is the man’s pension fund. Married on 2003.10, separated on 2014.8 and granted a temporary divorce order on 2017.8. At the time of the marriage, the husband had served in the police for 17 years, and at the time of the divorce, he still had to work for 5.5 years before he could obtain his pension. The first instance judgement ruled that 1/3 of the property belonged to the matrimonial estate, half of which (i.e. 1/6) was awarded to the woman. On appeal, the judgement was changed to 80% matrimonial property, half of which (40%) was awarded to the woman.
Reason: Although the woman did not contribute to the 22.5 years’ accumulation (the woman was considered to have contributed to the marriage for about 10 years), with the extension of the marriage period, a long-term marriage will turn property to which only one of the parties has contributed into matrimonial property. Therefore, the pension accumulated by the man during his 17 years of premarital service in the Police Force had already been converted into matrimonial property but considering that the man would need to work for a further 5.5 years in order to receive his pension at the time of divorce (this 5.5 years of service), the woman was entitled to a pension of 80%. However, taking into account the fact that the man had to work for another 5.5 years before he could receive his pension at the time of the divorce (the woman did not contribute during these 5.5 years and the accumulated pension was not matrimonial property), discretion was exercised to award 80% of the man’s total pension as matrimonial property, and the woman was entitled to half of that amount, i.e., 40%.
Z v X (C: Intervener), CACV 166, 251, 252/2011
Married in 1982, the man cohabited with a third party in 1994, and the woman applied for divorce in 2006. The third party was an intervener. The assets in dispute were shares in companies of substantial value.
The court ruled that: (1) the intervening third party did not acquire a material interest in the assets in the man’s name by virtue of his long-term cohabitation; (3) the principle of equal division of property should apply, with the woman taking half; the lower court’s ruling that the man should take 55% was reversed; (4) the amount of interim ancillary relief already paid by the man to the woman during the pendency of the proceedings should be counted towards the woman’s share; and (5) the amount of interim ancillary relief already paid by the man to the woman should be taken into account. .
T.L. v M.L AND ANOTHER, UK CASE, [2005] EWHC 2860 (Fam)
In divorce property division and ancillary relief proceedings, the wife asked that the property held by the man’s extended family (father and mother) be taken into account in calculating the distributable property, that the couple had lived in property provided by the extended family during the marriage, and that the extended family had provided the furnishings. The reason was that ‘encouragement’ should be given to the man’s extended family to provide property to meet his needs. The court ruled that the wife’s application should be dismissed. Only property to which one of the spouses is entitled (as of right) or which a third person outside the couple is obliged to pay to one of the spouses, and which the third person cannot refuse, may be regarded as distributable property.
(Bob Yan, principal solicitor of Yan Lawyers, solicitors. Email: [email protected], Tel: +852 31881995, +86 15018939249, WhatsApp: +852 5103 9249)