CUHK LAW Family law notes sample PDF

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Suitable for CUHK LLB students, self-compiled study materials....

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Week 1 notes Topics to be covered · · · · · · · · ·

Introduction : What is a “family”? Marriage in Hong Kong What constitutes an “invalid” marriage – nullity. Divorce – history and current divorce law Financial provision on divorce Issues relating to children – before, during and after marriage. Child abuse: discipline, punishment, protection Relocation and Abduction of children Domestic violence – what relief is available Mediation, Collaborative Practice and Adjudication

Family The discipline of family law  Most people are part of a ‘family’ during their lifetime  Family regarded as basic unit of society to be enjoyed, protected and promoted  Can bring great joy, love, comfort and affection  Family ties can form important source of identity and belonging ● BUT; family ties can also be a place of pain and suffering – particularly when these relationships break down  Individually, we rely on our social, cultural and religious characteristics and experiences to define family  Family ‘groups’ vary greatly as to how they practice family life ● There is no legal definition of family, family is a very subjective thing, meaning that the scope of family law is somewhat uncertain.  Some families may have strong emotional attachments and responses to these family relationships (or none at all) ● Therefore, trying to make and apply laws to these individualised relationships is therefore complex. ● Questions to consider: § What relationships does family law recognise? What relationships should be recognized? § Can law address the important (emotional and subjective) issues that stem from the ‘family’ relationships? Are the courts the appropriate forum for such disputes?

 Should all aspects of family life be regulated legally? o Again, complex question because everyone has a different idea of family in their mind. o E.g. Some might think family is: § Blood § Same sex couple § Couples who cohabitate  Some aspects of ‘family’ relationships are not required by law, but are seen as important to some. o E.g. exchanging rings at a wedding celebration  Can legal regulation change behaviour and expectations within families? Should it? ● E.g. same-sex relationships; ● marital rape etc. ● Does the behavior inform the law or the law inform the behavior of citizens (family)? (Chicken and egg situation)  Therefore, due to complexities of social behaviours, it must be asked whether legal rules can respond effectively to family life.  Where has this led us? Definition of the family  What is a “family” in the 21st century? o Blood relationship § In HK – the terms ‘uncle’ or ‘aunty’ § Sisters/brothers, parents o Cohabitation § Cohabit whether you are married to them or not/ have blood relationship or not § Cohabitating in HK, law does not recognize it as a family relationship. · Instead, protection is given through normal civil means, cannot go through family law provisions. · Have to go through civil procedure, contract, debt, land, etc. o Same sex § Should same sex couple have same rights and interests as heterosexual couples enjoy? o Pooled resources and property – possibly not , but an indicator § Who you pooled your resources and property with. § E.g. I pool your resources if you live with a partner and you share the rent (e.g. your gf/bf), which you will see as a family.  Traditionally, family meant marriage.  Reason for marriage:-

o Preserve family name, property and power?; or § E.g. royal family marry non-commoners to preserve property and power. o Provide loving, supportive and protective environment for the couple and their children? · Family relationships are very subjective, your own personal point of view. Problem is does the law recognize all these family relationships. ● Results: § Difficult to determine what constitutes a family, on a social level § Stereotypical image of a family based on marriage and legitimacy is probably outdated What is undermining significance of marriage and legitimacy of children?  1. Growth in relative significance of parenthood o (Child maintenance not exclusive to married parents) § In Hong Kong, even if parties are not married, child maintenance has to be paid if the relationship breaks down. § This shows an erosion to the fact that family means marriage, since illegitimate children are still paid if relationship breaks down. § Therefore, since child maintenance is not exclusive to married parents, it shows the lesser significance of marriage and legitimacy.  2. Legislation o S.2 Domestic and Cohabitation Relationships Violence Ordinance (CRVO) (Cap.189) § s.2 CRVO: Cohabitants as well as married couples can apply for various injunction in respect of domestic violence. · Deals with domestic violence. · But is not limited to married couples, just requires a committed relationship, even includes same sex couple. o You not being married will not prohibit you from applying to that. o Kind of awkward because protection is given to couples who are not married, although law does not actually recognize them as legal relationships. · Again, shows how significance of marriage is being undermined. o S.2 Fatal Accidents Ordinance (Cap.22) § FAO – Fatal Accidents Ordinance – includes adopted kids; cohabitants etc. § s.2 FAO: Allow cohabitants to apply for compensation in relationship to the partier’s fatal accidents, just like married couples. · Party making claim can be a cohabitant or even adopted children. · Again, shows how significance of marriage is being undermined.

 3. Increased social acceptability for non-married and same sex relationships o Society is becoming more accepting of different relationships. o This again undermines significance of marriage. Modern UK perspective on concept of family · ·

The battle of same sex marriage. Both deal with same sex partners attempting to acquire rights under Rights Act. Note: If you are a protected tenancy, your family can succeed the protected tenancy.

 Fitzpatrick v Sterling Housing Association Ltd [1999] 3 WLR 1113 o Facts: § Same sex couple, protected tenants (that they cannot be kicked out or have rent increased during lease). § Partner died, and he was the one who had the lease in his name. § Same sex partner was told to leave. o Held: § The same-sex partner of a protected tenant could be regarded as a ‘member of the family’ for the purposes of the Rent Act 1977 and thus had the right to succeed to the protected tenancy. (Note the use of the term ‘member of the family’ as opposed to husband or wife) · Though not as a spouse. · Ghaidan v Godin-Mendoza [2004] UKHL 30 o Facts: § Case is about succession by a homosexual partner to a statutory tenancy under the Rent Act 1997. § The original Act had extended the benefit of its provisions to anyone living as “husband or wife” with a view to covering heterosexual cohabitants. o Held: § Mindful of the Human Rights Act 1998, and in particular the anti-discrimination provision in Art 14 of the European Convention on Human Rights, the House of Lords held that the applicant had been living in a sufficiently “marriage like” relationship to come within the scope of the Rent Act 1977.  Sufficient marriage-like relationship to be treated as the same way as a spouse. § The original Act had extended the benefit of its provisions to anyone living as “husband or wife” with a view to covering heterosexual cohabitants. § But in the wake of the Human Rights Act 1998, it was felt that the extension should now be read so as to cover homosexual cohabitants.

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Heard after the passing of Human Rights Act 1998. Succession by a homosexual partner to a statutory tenancy under the Rent Act 1977.

 Marriage (Same Sex Couples) Act 2013 ● s.1(1): Marriage of same sex couples is lawful § Don’t have this in the HK yet. § UK has Act for same sex couples where the marriage of same sex couples is lawful now in the UK. The right to marry in HK  The right to marry is regarded as an important, fundamental right. ● It is protected by the Basic Law (Article 37) and by the Bill of Rights Ordinance (BOR) (Articles 14 and 19)  Basic Law Article 37 ● the freedom to marry and raise a family freely shall be protected by law  BORO Article 14 ● Protection of privacy, family, home, correspondence, honour and reputation  BORO Article 19 ● The right of men and women of marriageable age to marry and to found a family shall be recognized. § Marriageable age= 16  See more on this later in the lecture. HK cases affecting the concept of family  W v Registrar of Marriages (2013) 16 HKCFAR 112 o Transgender marriage § Facts: · A post-operative man to female transgender person. · The hospital authority in HK after this surgery certified her gender as female, that is reflected in her documentation (passport and HKID card), both said that she is female. · She then has a male partner an she wishes to marry that male partner. · She was born a man and had surgery to be a woman. · The registrar of marriage refuses and say that she is not a woman under s.40 of the marriage ordinance and s.20(1)(d) of the MCO. o Both of the sections refer to man and woman for the purposes of marriage.

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She applies to the court to have the marriage recognized and the court made a number of findings....