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Reliable reports indicate that Hong Kong's highest court, the Court of Final Appeal, has just directed that divorced couples must share their assets equally. This follows the global landmark decision of England's Supreme Court in White  which held that there should be a cross-check against equality to avoid any gender discrimination. This has developed in later case law, especially the Supreme Court in Miller/McFarlane , that the starting point should be equality of division, with the necessity to show good reasons to depart from equality which may be based on needs and/or the provenance of assets especially pre-marital, inherited or post separation assets.
In the Hong Kong decision, the assets were modest, perhaps £250,000. At first instance, after a long marriage in which the wife had the traditional role of looking after the home and not working, the court awarded her only one third. The Hong Kong Court of Final Appeal said that to maintain this outcome and confine her to her reasonable requirements would be patently unfair and discriminatory. Her contribution was not financial but no less important in the relationship. Many other countries would echo such sentiments even though they have not openly embraced the equality starting point
Hong Kong family law commentators have made clear the duration of a marriage will make a difference. An equal division is more likely in a longer marriage. In another case decided at the same time but in a lower court, a wife only received one third of the wealthy husband's assets to reflect the shortness (3 years) and relatively unproductive nature of the marriage.
This decision is to be much welcomed. It recognises the increasing acceptance and acknowledgement across the world that marriage is a partnership of equals; different roles, different forms of contribution and financial earnings, but of two equal individuals making commitments to each other. Too often this is not the experience of many people whose spouses have very unequal expectations. Some are personal views but some are cultural backgrounds. Some spouses struggle with the idea of equality of the genders, even though they may find themselves being divorced in a country with this outlook. Family courts worldwide have a normative, educational role in asserting this equality in marriage.
Many countries are having policy and political debates about the distinctiveness and especial benefits of marriage. Why should it have any status in law? Should it have more (or any) protection and rights? Worldwide, many spouses make sacrifices to the spouse, children and the marital household. They do so believing this is what is important, and what is part of a loving committed, lifelong relationship. Hong Kong has joined some other countries in endorsing the importance of that relationship commitment, for its people and their children. A starting point of equality fits the expectation and sacrifices of many spouses to their marriage across the world.
He is an English specialist accredited solicitor, mediator, family arbitrator, Deputy District Judge at the Principal Registry of the Family Division, High Court, London and also an Australian qualified solicitor, barrister and mediator. He is a Fellow of the International Academy of Matrimonial Lawyers and author of A Practical Guide to International Family Law (Jordan Publishing, 2008). He is chair of the Family Law Review Group of the Centre for Social Justice. He can be contacted on firstname.lastname@example.org.
The views expressed by contributing authors are not necessarily those of Family Law or Jordan Publishing and should not be considered as legal advice.
This work provides commentary, checklists, procedural guides and precedents on the subject in a...