Cap. 192 - Matrimonial Proceedings and Property Ordinance

To consolidate and amend the law relating to ancillary and other relief in matrimonial causes and other matrimonial proceedings; to abolish the right to claim restitution of conjugal rights; and for purposes connected with or relating to the matters aforesaid. [1 July 1972](Format changes—E.R. 3 of 2018) Part I Preliminary 1. Short title This Ordinance may be cited as the Matrimonial Proceedings and Property Ordinance. 2. Interpretation (1) In this Ordinance unless the context otherwise requires—adopted (領養) means adopted in pursuance of an adoption order made under any enactment in force in Hong Kong at any time relating to the adoption of children; (Amended 66 of 1999 s. 3)child (子女), in relation to one or both parties to a marriage, includes an illegitimate or adopted child of that party or, as the case may be, of both parties;child of the family (家庭子女), in relation to the parties to a marriage, means—(a) a child of both those parties; and(b) any other child who has been treated by both those parties as a child of their family;court (法庭、法院) means the High Court or the District Court; (Replaced 79 of 1981 s. 7. Amended 25 of 1998 s. 2)custody (管養、管養權), in relation to a child, includes access to the child;education (教育) includes training;maintenance order (贍養令) means an order made—(a) under section 4(1)(a), 5(2)(a), 8(5) or (6)(a) or (d) or 15(4) or (5) for periodical payments; or(b) under section 4(1)(b), 5(2)(b), 8(6)(b) or (e) or 15(4) or (5) for secured periodical payments; or(c) under section 4(1)(c), 5(2)(c) or 8(6)(c) or (f) for payment of a lump sum; (Added 18 of 2003 s. 9)property (財產) means any real or personal property, any estate or interest in real or personal property, any money, any negotiable instrument, any prescribed instrument within the meaning of section 137B of the Banking Ordinance (Cap. 155), debt or other chose in action, and any other right or interest whether in possession or not. (Added 69 of 1997 s. 22)(2) For the avoidance of doubt it is hereby declared that references in this Ordinance to remarriage include references to a marriage which is by law void or voidable.[cf. 1970 c. 45 s. 27 U.K.] Part IA Commencement of Proceedings 2A. Commencement and transfer of proceedings (1) Subject to subsection (2), proceedings under this Ordinance shall be commenced in the District Court: Provided that rules of court may make provision— (a) for the transfer to the High Court of any proceedings upon the application of any party or at the instance of the District Court; and (b) for the transfer and retransfer from the High Court of any proceedings to the District Court. (Amended 25 of 1998 s. 2) (2) Applications under sections 11, 12, 13 and 23 shall be made to the court that made the order to which the application relates: Provided that rules of court may make provision for the transfer of applications from one court to the other. (Added 79 of 1981 s. 7) Part II Ancillary and Other Relief in Matrimonial Causes and Other Matrimonial Proceedings 3. Maintenance pending suit in case of divorce, etc. On a—(a) petition or joint application for divorce; or(b) petition for nullity of marriage or judicial separation,the court may order either party to the marriage to make to the other such periodical payments for his or her maintenance and for such term, being a term beginning not earlier than the date of the presentation of the petition or making of the application and ending on the date of the determination of the suit, as the court thinks reasonable.(Replaced 29 of 1995 s. 19) 4. Financial provision for party to a marriage in cases of divorce, etc. (1) On granting a decree of divorce, a decree of nullity of marriage or a decree of judicial separation or at any time thereafter (whether, in the case of a decree of divorce or of nullity of marriage, before or after the decree is made absolute), the court may, subject to the provisions of section 25(1), make any one or more of the following orders, that is to say—(a) an order that either party to the marriage shall make to the other such periodical payments and for such term as may be specified in the order;(b) an order that either party to the marriage shall secure to the other to the satisfaction of the court, such periodical payments and for such term as may be so specified; (c) an order that either party to the marriage shall pay to the other such lump sum or sums as may be so specified.(2) Without prejudice to the generality of subsection (1)(c), an order under this section that a party to a marriage shall pay a lump sum to the other party—(a) may be made for the purpose of enabling that other party to meet any liabilities or expenses reasonably incurred by him or her in maintaining himself or herself or any child of the family before making an application for an order under this section;(b) may provide for the payment of that sum by instalments of such amount as may be specified in the order and may require the payment of the instalments to be secured to the satisfaction of the court.[cf. 1970 c. 45 s. 2 U.K.] 5. Financial provision for child of the family in cases of divorce, etc. (1) Subject to the provisions of section 10, in proceedings for divorce, nullity of marriage or judicial separation, the court may make any one or more of the orders mentioned in subsection (2)—(a) before or on granting the decree of divorce, of nullity of marriage or of judicial separation, as the case may be, or at any time thereafter;(b) where any such proceedings are dismissed after the beginning of the trial, either forthwith or within a reasonable period after the dismissal.(2) The orders referred to in subsection (1) are—(a) an order that a party to the marriage shall make to such person as may be specified in the order for the benefit of a child of the family, or to such a child, such periodical payments and for such term as may be so specified;(b) an order that a party to the marriage shall secure to such person as may be so specified for the benefit of such a child, or to such a child, to the satisfaction of the court, such periodical payments and for such term as may be so specified; (c) an order that a party to the marriage shall pay to such person as may be so specified for the benefit of such a child, or to such a child, such lump sum as may be so specified.(3) Without prejudice to the generality of subsection (2)(c), an order under this section for the payment of a lump sum to any person for the benefit of a child of the family, or to such a child, may be made for the purpose of enabling any liabilities or expenses reasonably incurred by or for the benefit of that child before the making of an application for an order under this section to be met.(4) An order under this section for the payment of a lump sum may provide for the payment of that sum by instalments of such amount as may be specified in the order and may require the payment of the instalments to be secured to the satisfaction of the court. (5) While the court has power to make an order in any proceedings by virtue of subsection (1)(a), it may exercise that power from time to time; and where the court makes an order by virtue of subsection (1)(b) in relation to a child it may from time to time make a further order under this section in relation to him.[cf. 1970 c. 45 s. 3 U.K.] 6. Orders for transfer and settlement of property and for variation of settlements in cases of divorce, etc. (1) On granting a decree of divorce, a decree of nullity of marriage or a decree of judicial separation, or at any time thereafter (whether, in the case of a decree of divorce or of nullity of marriage, before or after the decree is made absolute), the court may, subject to the provisions of sections 10 and 25(1), make any one or more of the following orders, that is to say— (Amended 69 of 1997 s. 23)(a) an order that a party to the marriage shall transfer to the other party, to any child of the family or to such person as may be specified in the order for the benefit of such a child such property as may be so specified, being property to which the first-mentioned party is entitled, either in possession or reversion;(b) an order that a settlement of such property as may be so specified, being property to which a party to the marriage is so entitled, be made to the satisfaction of the court for the benefit of the other party to the marriage and of the children of the family or either or any of them;(c) an order varying for the benefit of the parties to the marriage and of the children of the family or either or any of them any ante-nuptial or post-nuptial settlement (including such a settlement made by will or codicil) made on the parties to the marriage;(d) an order extinguishing or reducing the interests of either of the parties to the marriage under any such settlement;(e) an order for the sale of such property as may be specified in the order, being property in which or in the proceeds of sale of which either or both of the parties to the marriage has or have a beneficial interest, either in possession or reversion, and for the use of the proceeds of such sale, (Added 69 of 1997 s. 23)and the court may make an order under paragraph (c) notwithstanding that there are no children of the family.(2) Subsections (2) to (6) of section 6A apply in relation to orders under subsection (1)(e) as they apply in relation to orders under subsection (1) of that section. (Added 69 of 1997 s. 23)[cf. 1970 c. 45 s. 4 U.K.] 6A. Orders for sale of property (1) Where the court makes an order under section 4, 5 or 6 then, on making that order or at any time after the making of that order, the court may make a further order for the sale of such property as may be specified in the order, being property in which or in the proceeds of sale of which either or both of the parties to the marriage has or have a beneficial interest, either in possession or reversion.(2) Any order made under subsection (1) may contain such consequential or supplementary provisions as the court thinks fit and, without affecting the generality of the preceding words of this provision, may include—(a) provision requiring the making of a payment out of the proceeds of sale of the property to which the order relates; and(b) provision requiring any such property to be offered for sale to a person, or class of persons, specified in the order.(3) Where an order is made under subsection (1), the court may direct that the order, or such provision of the order as the court may specify, shall not take effect until the occurrence of an event specified by the court or the expiration of a period so specified.(4) Where an order under subsection (1) contains a provision requiring the proceeds of sale of the property to which the order relates to be used to secure periodical payments to a party to the marriage, the order shall cease to have effect on the death or re-marriage of that person.(5) Where a party to a marriage has a beneficial interest in any property, or in the proceeds of sale of any property, and some other person who is not a party to the marriage also has a beneficial interest in that property or in those proceeds of sale, then, before deciding whether to make an order under this section in relation to that property, it shall be the duty of the court to give that other person an opportunity to make representations with respect to the order; and any representations made by that other person shall be included among the circumstances to which the court is required to have regard under section 7(1).(6) An order shall not be made under subsection (1) in relation to any property where the purported assignment or other alienation of the property together with any agreement so to assign or otherwise alienate the property pursuant to the order would be void by virtue of section 17B of the Housing Ordinance (Cap. 283).(Added 69 of 1997 s. 24) 7. Matters to which court is to have regard in deciding what orders to make under sections 4, 5 and 6 (1) It shall be the duty of the court in deciding whether to exercise its powers under section 4, 6 or 6A in relation to a party to the marriage and, if so, in what manner, to have regard to the conduct of the parties and all the circumstances of the case including the following matters, that is to say—(a) the income, earning capacity, property and other financial resources which each of the parties to the marriage has or is likely to have in the foreseeable future;(b) the financial needs, obligations and responsibilities which each of the parties to the marriage has or is likely to have in the foreseeable future;(c) the standard of living enjoyed by the family before the breakdown of the marriage;(d) the age of each party to the marriage and the duration of the marriage;(e) any physical or mental disability of either of the parties to the marriage;(f) the contributions made by each of the parties to the welfare of the family, including any contribution made by looking after the home or caring for the family;(g) in the case of proceedings for divorce or nullity of marriage, the value to either of the parties to the marriage of any benefit (for example, a pension) which, by reason of the dissolution or annulment of the marriage, that party will lose the chance of acquiring.(2) Without prejudice to subsection (3), it shall be the duty of the court in deciding whether to exercise its powers under section 5, 6 or 6A in relation to a child of the family and, if so, in what manner, to have regard to all the circumstances of the case including the following matters, that is to say—(a) the financial needs of the child;(b) the income, earning capacity (if any), property and other financial resources of the child;(c) any physical or mental disability of the child;(d) the standard of living enjoyed by the family before the breakdown of the marriage;(e) the manner in which he was being and in which the parties to the marriage expected him to be educated;and so to exercise those powers as to place the child, so far as it is practicable and, having regard to the considerations mentioned in relation to the parties to the marriage in paragraphs (a) and (b) of subsection (1), just to do so, in the financial position in which the child would have been if the marriage had not broken down and each of those parties had properly discharged his or her financial obligations and responsibilities towards him.(3) It shall be the duty of the court in deciding whether to exercise its powers under section 5, 6 or 6A against a party to a marriage in favour of a child of the family who is not the child of that party and, if so, in what manner, to have regard (among the circumstances of the case)—(a) to whether that party had assumed any responsibility for the child’s maintenance and, if so, to the extent to which, and the basis upon which, that party assumed such responsibility and to the length of time for which that party discharged such responsibility;(b) to whether in assuming and discharging such responsibility that party did so knowing that the child was not his or her own;(c) to the liability of any other person to maintain the child.(Amended 69 of 1997 s. 33)[cf. 1970 c. 45 s. 5 U.K.] 8. Neglect by party to marriage to maintain other party or child of the family (1) Either party to a marriage may apply to the court for an order under this section on the ground that the other party to the marriage (in this section referred to as the respondent) has failed—(a) to provide reasonable maintenance for the applicant; or(b) to provide, or to make proper contribution towards, reasonable maintenance for any child of the family to whom this section applies. (Amended 69 of 1997 s. 25)(2) The court shall not entertain an application under this section unless it would have jurisdiction to entertain proceedings by the applicant for judicial separation.(3) This section applies to any child of the family for whose maintenance it is reasonable in all the circumstances to expect the respondent to provide or towards whose maintenance it is reasonable in all the circumstances to expect the respondent to make a proper contribution.(4) Where the child of the family to whom the application under this section relates is not the child of the respondent, then, in deciding—(a) whether the respondent has been guilty of wilful neglect to provide, or to make a proper contribution towards, reasonable maintenance for the child, and(b) what order, if any, to make under this section in favour or for the benefit of the child,the court shall have regard to the matters mentioned in section 7(3).(5) Where on an application under this section it appears to the court that the applicant or any child of the family to whom the application relates is in immediate need of financial assistance, but it is not yet possible to determine what order, if any, should be made on the application, the court may order the respondent to make to the applicant until the determination of the application such periodical payments as the court thinks reasonable.(6) Where on an application under this section the applicant satisfies the court of any ground mentioned in subsection (1), then, subject to the provisions of section 10, the court may make such one or more of the following orders as it thinks just, that is to say—(a) an order that the respondent shall make to the applicant such periodical payments and for such term as may be specified in the order;(b) an order that the respondent shall secure to the applicant, to the satisfaction of the court, such periodical payments and for such term as may be so specified;(c) an order that the respondent shall pay to the applicant such lump sum as may be so specified;(d) an order that the respondent shall make to such person as may be specified in the order for the benefit of the child to whom the application relates, or to that child, such periodical payments and for such term as may be so specified;(e) an order that the respondent shall secure to such person as may be so specified for the benefit of that child, or to that child, to the satisfaction of the court, such periodical payments and for such term as may be so specified;(f) an order that the respondent shall pay to such person as may be so specified for the benefit of that child, or to that child, such lump sum as may be so specified.(7) Without prejudice to the generality of subsection (6)(c) and (f), an order under this section that the respondent shall pay a lump sum—(a) may be made for the purpose of enabling any liabilities or expenses reasonably incurred in maintaining the applicant or any child of the family to whom the application relates before the making of the application to be met;(b) may provide for the payment of that sum by instalments of such amount as may be specified in the order and may require the payment of the instalments to be secured to the satisfaction of the court.[cf. 1970 c. 45 s. 6 U.K.] 9. Duration of certain orders made in favour of party to marriage and effect of remarriage (1) The term to be specified in any order made by virtue of section 4(1)(a) or (b) or section 8(6)(a) or (b) shall be such term, being a term beginning not earlier than the date of the making of an application for the order in question and lasting not longer than the maximum term, as the court thinks fit.(2) In subsection (1) the maximum term (最長付款期) means—(a) in the case of an order made by virtue of section 4(1)(a) in proceedings for divorce or nullity of marriage, the joint lives of the parties to the marriage or a term ending with the date of the remarriage of the party in whose favour the order is made, whichever is the shorter;(b) in the case of an order made by virtue of section 4(1)(b) in any such proceedings, the life of that party or a term ending with the date of the remarriage of that party, whichever is the shorter;(c) in the case of an order made by virtue of section 4(1)(a) in proceedings for judicial separation or made by virtue of section 8(6)(a), the joint lives of the parties to the marriage;(d) in the case of an order made by virtue of section 4(1)(b) in proceedings for judicial separation or made by virtue of section 8(6)(b), the life of the party in whose favour the order is made.(3) Where an order is made by virtue of section 4(1)(a) or (b) in proceedings for judicial separation or by virtue of section 8(6)(a) or (b) and the marriage of the parties affected by the order is subsequently dissolved or annulled but the order continues in force, the order shall, notwithstanding anything in it, cease to have effect on the remarriage of the party in whose favour it was made, except in relation to any arrears due under it on the date of such remarriage.(4) If after the grant of a decree dissolving or annulling a marriage either party to that marriage remarries, that party shall not be entitled to apply for an order under section 4, 6 or 6A against the person to whom he or she was married immediately before the grant of that decree unless the remarriage is with that person and that marriage is also dissolved or annulled or a decree of judicial separation is made on a petition presented by either party to that marriage. (Amended 69 of 1997 s. 33)[cf. 1970 c. 45 s. 7 U.K.] 10. Provisions as to powers of court to make orders in favour of children and duration of such orders (1) Subject to subsection (3)—(a) no order under section 5, 6(1)(a) or 8 shall be made in favour of a child who has attained the age of 18; and (Amended 31 of 2025 s. 79)(b) the term for which by virtue of an order under section 5 or 8 any payments are to be made or secured to or for the benefit of a child may begin with the date of the making of an application for the order in question or any later date but shall not extend beyond the date when the child will attain the age of 18. (Amended 69 of 1997 s. 26)(2) (Repealed 69 of 1997 s. 26)(3) The court may make such an order as is mentioned in subsection (1)(a) in favour of a child who has attained the age of 18 and may include in an order made under section 5 or 8 in relation to a child who has not attained that age a provision extending beyond the date when the child will attain that age the term for which by virtue of the order any payments are to be made or secured to or for the benefit of that child, if it appears to the court that— (Amended 69 of 1997 s. 26)(a) that child is, or will be, or if such an order or provision were made would be, receiving instruction at an educational establishment or undergoing training for a trade, profession or vocation, whether or not he is also, or will also be, in gainful employment; or(b) there are special circumstances which justify the making of the order or provisions.(4) Any order made by virtue of section 5(2)(a) or section 8(6)(d) shall, notwithstanding anything in the order, cease to have effect on the death of the person liable to make payments under the order, except in relation to any arrears due under the order on the date of such death.[cf. 1970 c. 45 s. 8 U.K.] 11. Variation, discharge, etc. of orders for financial provision (1) Where the court has made an order to which this section applies, then, subject to the provisions of this section, the court shall have power to vary or discharge the order or to suspend any provision thereof temporarily and to revive the operation of any provision so suspended.(2) This section applies to the following orders, that is to say—(a) any order under section 3;(b) any order made by virtue of section 4(1)(a) or (b) or 4(2)(b) ;(c) any order made by virtue of section 5(2)(a) or (b) or 5(4); (d) any order made by virtue of section 6(1)(b), (c), (d) or (e) on or after granting a decree of judicial separation; (Amended 69 of 1997 s. 33)(da) any order made by virtue of section 6A; and (Added 69 of 1997 s. 33)(e) any order made by virtue of section 8(5), 8(6)(a), (b), (d) or (e) or 8(7)(b).(3) The powers exercisable by the court under this section in relation to an order shall be exercisable also in relation to any instrument executed in pursuance of the order.(4) The court shall not exercise the powers conferred by this section in relation to any order made by virtue of section 6(1)(b), (c), (d) or (e) on or after granting a decree of judicial separation except on an application made in proceedings— (Amended 69 of 1997 s. 33)(a) for the rescission of that decree, or(b) for the dissolution of the marriage of the parties to the proceedings in which that decree was made.(5) No such order as is mentioned in section 6 shall be made on an application for the variation of an order made by virtue of section 4(1)(a) or (b) or section 5(2)(a) or (b), and no order for the payment of a lump sum shall be made on an application for the variation of an order made by virtue of section 4(1)(a) or (b) or of section 8(6)(a) or (b).(6) Where the person liable to make payments under a secured periodical payments order made by virtue of section 4(1)(b), section 5(2)(b) or section 8(6)(b) or (e) has died, an application under this section relating to that order (and to any order made under section 6A(1) which requires the proceeds of sale of property to be used for securing those payments) may be made by the person entitled to payments under the periodical payments order or by the personal representatives of the deceased person, but no such application shall, except with the permission of the court, be made after the end of the period of 6 months from the date on which representation in regard to the estate of that person is first taken out. (Amended 69 of 1997 s. 33; E.R. 3 of 2018)(7) In exercising the powers conferred by this section the court shall have regard to all the circumstances of the case, including any change in any of the matters to which the court was required to have regard when making the order to which the application relates and, where the party against whom that order was made has died, the changed circumstances resulting from his or her death.(8) The personal representatives of a deceased person against whom any such order as is referred to in subsection (6) was made shall not be liable for having distributed any part of the estate of the deceased after the expiration of the period of 6 months referred to in that subsection on the ground that they ought to have taken into account the possibility that the court might permit an application under this section to be made after that period by the person entitled to payments under the order; but this subsection shall not prejudice any power to recover any part of the estate so distributed arising by virtue of the making of an order in pursuance of this section. (Amended E.R. 3 of 2018)(9) In considering for the purposes of subsection (6) the question when representation was first taken out, a grant limited to trust property shall be left out of account and a grant limited to real estate or to personal estate shall be left out of account unless a grant limited to the remainder of the estate has previously been made or is made at the same time.[cf. 1970 c. 45 s. 9 U.K.] 12. Payment of certain arrears unenforceable without the leave of the court (1) A person shall not be entitled to enforce through the court the payment of any arrears due under an order made by virtue of section 3, 4(1), 5(2), 8(5) or 8(6) without the leave of the court if those arrears became due more than 12 months before proceedings to enforce the payment of them are begun. (Amended E.R. 3 of 2018)(2) The court hearing an application for the grant of leave under this section may refuse leave, or may grant leave subject to such restrictions and conditions (including conditions as to the allowing of time for payment of the making of payment by instalments) as that court think proper, or may remit the payment of such arrears or of any part thereof.(3) An application for the grant of leave under this section shall be made in such manner as may be prescribed by rules of court.[cf. 1970 c. 45 s. 10 U.K.] 13. Power of court to order sums paid under certain orders to be repaid in certain cases (1) Where on an application made under this section in relation to an order to which this section applies it appears to the court that by reason of—(a) a change in the circumstances of the person entitled to, or liable to make, payments under the order since the order was made, or(b) the changed circumstances resulting from the death of the person so liable,the amount received by the person entitled to payments under the order in respect of a period after those circumstances changed or after the death of the person liable to make payments under the order, as the case may be, exceeds the amount which the person so liable or his or her personal representatives should have been required to pay, the court may order the respondent to the application to pay to the applicant such sum, not exceeding the amount of the excess, as the court thinks just.(2) An application under this section may be made by the person liable to make payments under an order to which this section applies or his or her personal representatives and may be made against the person entitled to payments under the order or her or his personal representatives.(3) (Repealed 79 of 1981 s. 7)(4) An order under this section for the payment of any sum may provide for the payment of that sum by instalments of such amount as may be specified in the order.(5) This section applies to an order made by virtue of section 3, 4(1)(a) or (b), 5(2)(a) or (b), 8(5) or 8(6)(a) or (b), (d) or (e).[cf. 1970 c. 45 s. 11 U.K.] 14. Validity of maintenance agreements (1) If a maintenance agreement includes a provision purporting to restrict any right to apply to a court for an order containing financial arrangements then—(a) that provision shall be void; but(b) any other financial arrangements contained in the agreement shall not thereby be rendered void or unenforceable and shall, unless they are void or unenforceable for any other reason (and subject to sections 15 and 16), be binding on the parties to the agreement.(2) In this section and in section 15—financial arrangements (財務安排) means provisions governing the rights and liabilities towards one another when living separately of the parties to a marriage (including a marriage which has been dissolved or annulled) in respect of the making or securing of payments or the disposition or use of any property, including such rights and liabilities with respect to the maintenance or education of any child, whether or not a child of the family; maintenance agreement (贍養協議) means any agreement in writing made, whether before or after the commencement of this Ordinance, between the parties to a marriage, being— (a) an agreement containing financial arrangements, whether made during the continuance or after the dissolution or annulment of the marriage; or (b) a separation agreement which contains no financial arrangements in a case where no other agreement in writing between the same parties contains such arrangements. (Amended E.R. 3 of 2018)[cf. 1970 c. 45 s. 13 U.K.] 15. Alteration of agreements by court during lives of parties (1) Where a maintenance agreement is for the time being subsisting and each of the parties to the agreement is for the time being either domiciled or resident in Hong Kong, either party may apply to the court for an order under this section. (Amended 17 of 2018 s. 65)(2) If the court to which the application is made is satisfied either—(a) that by reason of a change in the circumstances in the light of which any financial arrangements contained in the agreement were made or, as the case may be, financial arrangements were omitted from it (including a change foreseen by the parties when making the agreement), the agreement should be altered so as to make different, or, as the case may be, so as to contain, financial arrangements, or(b) that the agreement does not contain proper financial arrangements with respect to any child of the family,then, subject to subsections (4) and (5), that court may by order make such alterations in the agreement— (Amended 17 of 2018 s. 65)(i) by varying or revoking any financial arrangements contained in it, or(ii) by inserting in it financial arrangements for the benefit of one of the parties to the agreement or of a child of the family,as may appear to that court to be just having regard to all the circumstances, including, if relevant, the matters mentioned in section 7(3); and the agreement shall have effect thereafter as if any alteration made by the order had been made by agreement between the parties and for valuable consideration.(3) (Repealed 79 of 1981 s. 7)(4) Where a court decides to alter, by order under this section, an agreement by inserting provision for the making or securing by one of the parties to the agreement of periodical payments for the maintenance of the other party or by increasing the rate of the periodical payments which the agreement provides shall be made by one of the parties for the maintenance of the other, the term for which the payments or, as the case may be, so much of the payments as is attributable to the increase are or is to be made under the agreement as altered by the order shall be such term as the court may specify, but that term shall not exceed—(a) where the payments will not be secured, the joint lives of the parties to the agreement or a term ending with the remarriage of the party to whom the payments are to be made, whichever is the shorter;(b) where the payments will be secured, the life of that party or a term ending with the remarriage of that party, whichever is the shorter.(5) Where a court decides to alter, by order under this section, an agreement by inserting provision for the making or securing by one of the parties to the agreement of periodical payments for the maintenance of a child of the family or by increasing the rate of the periodical payments which the agreement provides shall be made or secured by one of the parties for the maintenance of such a child, then, in deciding the term for which under the agreement as altered by the order the payments or, as the case may be, so much of the payments as is attributable to the increase are or is to be made or secured for the benefit of the child, the court shall apply the provisions of section 10(1) and (3) as if the order to which this subsection relates were an order under section 5. (Amended 69 of 1997 s. 27)(6) For the avoidance of doubt it is hereby declared that nothing in this section or section 14 affects any power of a court before which any proceedings between the parties to a maintenance agreement are brought under any other enactment (including a provision of this Ordinance) to make an order containing financial arrangements or any right of either party to apply for such an order in such proceedings.[cf. 1970 c. 45 s. 14 U.K.] 16. Alteration of agreements by court after death of one party (1) Where a maintenance agreement within the meaning of section 14 provides for the continuation of payments under the agreement after the death of one of the parties and that party dies domiciled in Hong Kong, the surviving party or the personal representatives of the deceased party may, subject to subsection (2), apply to the court for an order under section 15. (Amended 17 of 2018 s. 66)(2) An application under this section shall not, except with the permission of the court, be made after the end of the period of 6 months from the date on which representation in regard to the estate of the deceased is first taken out. (Amended E.R. 3 of 2018)(3) (Repealed 79 of 1981 s. 7)(4) If a maintenance agreement is altered by a court on an application made in pursuance of subsection (1), the like consequences shall ensue as if the alteration had been made immediately before the death by agreement between the parties and for valuable consideration.(5) The provisions of this section shall not render the personal representatives of the deceased liable for having distributed any part of the estate of the deceased after the expiration of the said period of 6 months on the ground that they ought to have taken into account the possibility that a court might permit an application by virtue of this section to be made by the surviving party after that period; but this subsection shall not prejudice any power to recover any part of the estate so distributed arising by virtue of the making of an order in pursuance of this section. (Amended E.R. 3 of 2018)(6) Section 11(9) shall apply for the purposes of subsection (2) of this section as it applies for the purposes of subsection (6) of section 11.[cf. 1970 c. 45 s. 15 U.K.] 17. Avoidance of transactions intended to defeat certain claims (1) Where proceedings for relief under any of the relevant provisions of this Ordinance (hereafter in this section referred to as financial provision) are brought by a person (hereafter in this section referred to as the applicant) against any other person (hereafter in this section referred to as the other party), the court may, on an application by the applicant—(a) if it is satisfied that the other party is, with the intention of defeating the claim for financial provision, about to make any disposition or to transfer out of the jurisdiction or otherwise deal with any property, make such order as it thinks fit for restraining the other party from so doing or otherwise for protecting the claim;(b) if it is satisfied that the other party has, with the intention aforesaid, made a disposition to which this paragraph applies and that if the disposition were set aside financial provision or different financial provision would be granted to the applicant, make an order setting aside the disposition and give such consequential directions as it thinks fit for giving effect to the order (including directions requiring the making of any payment or the disposal of any property);(c) if it is satisfied, in a case where an order under the relevant provisions of this Ordinance has been obtained by the applicant against the other party, that the other party has, with the intention aforesaid, made a disposition to which this paragraph applies, make such an order and give such directions as are mentioned in paragraph (b);and an application for the purposes of paragraph (b) shall be made in the proceedings for the financial provision in question.(2) Paragraphs (b) and (c) of subsection (1) apply respectively to any disposition made by the other party (whether before or after the commencement of the proceedings for financial provision), not being a disposition made for valuable consideration (other than marriage) to a person who, at the time of the disposition, acted in relation to it in good faith and without notice of any such intention as aforesaid on the part of the other party.(3) Where an application is made under this section with respect to a disposition which took place less than 3 years before the date of the application or to a disposition or other dealing with property which is about to take place and the court is satisfied— (Amended E.R. 3 of 2018)(a) in a case falling within subsection (1)(a) or (b), that the disposition or other dealing would (apart from this section) have the consequence, or(b) in a case falling within subsection (1)(c), that the disposition has had the consequence,of defeating the applicant’s claim for financial provision, it shall be presumed, unless the contrary is shown, that the other party disposed of the property with the intention aforesaid or, as the case may be, is, with that intention, about to dispose of or deal with the property.(4) In this section—disposition (財產處置) does not include any provision contained in a will or codicil but, with that exception, includes any conveyance, assurance or gift of property of any description, whether made by an instrument or otherwise;the relevant provisions of this Ordinance (本條例的有關條文) means any of the provisions of sections 3, 4, 5, 6, 6A, 8, 11 (except subsection (6)) and 15; (Amended 69 of 1997 s. 33)and any reference to defeating an applicant’s claim for financial provision is a reference to preventing financial provision from being granted to the applicant, or to the applicant for the benefit of a child of the family, or reducing the amount of any financial provision which might be so granted, or frustrating or impeding the enforcement of any order which might be or has been made at the instance of the applicant under the relevant provisions of this Ordinance.(5) The provisions of this section shall not apply to a disposition made more than 3 years before the commencement of this Ordinance. (Amended E.R. 3 of 2018)[cf. 1970 c. 45 s. 16 U.K.] 18. Restrictions on decrees for dissolution, annulment or separation affecting children (1) The court shall not make absolute a decree of divorce or of nullity of marriage, or make a decree of judicial separation, unless the court, by order, has declared that it is satisfied—(a) that for the purposes of this section there are no children of the family to whom this section applies; or(b) that the only children who are or may be children of the family to whom this section applies are the children named in the order and that—(i) arrangements for the welfare of every child so named have been made and are satisfactory or are the best that can be devised in the circumstances; or(ii) it is impracticable for the party or parties appearing before the court to make any such arrangements; or(c) that there are circumstances making it desirable that the decree should be made absolute or should be made, as the case may be, without delay notwithstanding that there are or may be children of the family to whom this section applies and that the court is unable to make a declaration in accordance with paragraph (b).(2) The court shall not make an order declaring that it is satisfied as mentioned in subsection (1)(c) unless it has obtained a satisfactory undertaking from either or both of the parties to bring the question of the arrangements for the children named in the order before the court within a specified time.(3) If the court makes absolute a decree nisi of divorce or of nullity of marriage, or makes a decree of judicial separation, without having made an order under subsection (1) the decree shall be void but, if such an order was made, no person shall be entitled to challenge the validity of the decree on the ground that the conditions prescribed by subsections (1) and (2) were not fulfilled.(4) If the court refuses to make an order under subsection (1) in any proceedings for divorce, nullity of marriage or judicial separation, it shall, on application by either party to the proceedings, make an order declaring that it is not satisfied as mentioned in that subsection.(5) This section applies to the following children of the family, that is to say—(a) any minor child of the family who at the date of the order under subsection (1) is—(i) under the age of 16, or (Amended E.R. 3 of 2018)(ii) receiving instruction at an educational establishment or undergoing training for a trade, profession or vocation, whether or not he is also in gainful employment; and(b) any other child of the family to whom the court by an order under that subsection directs that this section shall apply;and the court may give such a direction if it is of opinion that there are special circumstances which make it desirable in the interests of the child that this section should apply to it.(6) In this section welfare (福利), in relation to a child, includes the custody and education of the child and financial provision for him.[cf. 1970 c. 45 s. 17 U.K.] 19. Orders for custody and education of children affected by matrimonial suits (1) The court may make such order as it thinks fit for the custody and education of any child of the family who is under the age of 18— (Amended 69 of 1997 s. 28)(a) in any proceedings for divorce, nullity of marriage or judicial separation, before, by or after the final decree;(b) where such proceedings are dismissed after the beginning of the trial, either forthwith or within a reasonable period after the dismissal;and in any case in which the court has power by virtue of this subsection to make an order in respect of a child it may instead, if it thinks fit, direct that proper proceedings be taken for making the child a ward of court.(2) Where an order in respect of a child is made under this section, the order shall not affect the rights over or with respect to the child of any person, other than a party to the marriage in question, unless the child is the child of one or both of the parties to that marriage and that person was a party to the proceedings on the application for an order under this section.(3) Where the court makes or makes absolute a decree of divorce or makes a decree of judicial separation, it may include in the decree a declaration that either party to the marriage in question is unfit to have the custody of the children of the family.(4) Where a decree of divorce or of judicial separation contains such a declaration as is mentioned in subsection (3), then, if the party to whom the declaration relates is a parent of any child of the family, that party shall not, on the death of the other parent, be entitled as of right to the custody or the guardianship of that child.(5) While the court has power to make an order in any proceedings by virtue of paragraph (a) of subsection (1), it may exercise that power from time to time; and where the court makes an order by virtue of paragraph (b) of that subsection with respect to a child it may from time to time until that child attains the age of 18 make a further order with respect to his custody and education. (Amended 69 of 1997 s. 28)(6) The court shall have power to discharge or vary an order made under this section or to suspend any provision thereof temporarily and to revive the operation of any provision so suspended.(7) An order made by virtue of this section shall cease to have effect as respects any child when he attains the age of 18. (Added 69 of 1997 s. 28)[cf. 1970 c. 45 s. 18 U.K.] 20. Orders for custody of children in cases of neglect to maintain (1) Where the court makes an order under section 8, the court shall also have power from time to time to make such orders as it thinks fit with respect to the custody of any child of the family who is for the time being under the age of 18; but the power conferred by this section and any order made in exercise of that power shall have effect only as respects any period when an order is in force under that section and the child is under that age. (Amended 69 of 1997 s. 29)(2) Section 19(2) and (6) shall apply in relation to an order made under this section as they apply in relation to an order made under that section.[cf. 1970 c. 45 s. 19 U.K.] 21. Abolition of right to claim restitution of conjugal rights No person shall after the commencement of this Ordinance be entitled to petition the court for restitution of conjugal rights.[cf. 1970 c. 45 s. 20 U.K.] 22. Order for maintenance of party to marriage under Matrimonial Causes Ordinance to cease to have effect on remarriage of that party (1) An order made, or deemed to have been made, under section 28(1)(a) or (b) of the Matrimonial Causes Ordinance (Cap. 179) shall, notwithstanding anything in the order, cease to have effect on the remarriage after the commencement of this Ordinance of the person in whose favour the order was made, except in relation to any arrears due under it on the date of such remarriage.(2) An order for the payment of alimony made, or deemed to have been made, under section 32 of the Matrimonial Causes Ordinance (Cap.

179), and an order made, or deemed to have been made, under section 33 or 34 of that Ordinance, shall, if the marriage of the parties to the proceedings in which the order was made was or is subsequently dissolved or annulled but the order continues in force, cease to have effect on the remarriage after the commencement of this Ordinance of the party in whose favour the order was made, except in relation to any arrears due under it on the date of such remarriage.[cf. 1970 c. 45 s. 21 U.K.] 23. Orders for repayment in certain cases of sums paid after cessation of order by reason of remarriage (1) Where—(a) an order to which this section applies has ceased to have effect by reason of the remarriage of the person entitled to payments under the order, and(b) the person liable to make payments under the order or his or her personal representatives made payments in accordance with it in respect of a period after the date of such remarriage in the mistaken belief that the order was still subsisting,no proceedings in respect of a cause of action arising out of the circumstances mentioned in paragraphs (a) and (b) shall be maintainable by the person so liable or his or her personal representatives against the person so entitled or her or his personal representatives; but on an application made under this section the court may exercise the powers conferred on it by subsection (2). (Amended L.N. 145 of 1992)(2) The court may order the respondent to an application made under this section to pay to the applicant a sum equal to the amount of the payments made in respect of the period mentioned in subsection (1)(b) or, if it appears to the court that it would be unjust to make that order, it may either order the respondent to pay to the applicant such lesser sum as it thinks fit or dismiss the application.(3) Subsections (2) and (4) of section 13 shall apply to an application made under this section and to an order made on such application as they apply to an application made under that section and to an order made on the last mentioned application. (Amended 79 of 1981 s. 7)(4) No officer of a court to which any payments under an order to which this section applies are required to be made shall be liable for any act done by him in pursuance of the order after the date on which that order ceased to have effect by reason of the remarriage of the person entitled to payments under it, if, but only if, the act was one which he would have been under a duty to do had the order not ceased to have effect as aforesaid and the act was done before notice in writing of the fact that the person so entitled had remarried was given to him by or on behalf of that person, the person liable to make payments under the order or the personal representatives of either of those persons.(5) This section applies to an order made by virtue of section 4(1)(a) or (b) or 8(6)(a) or (b) and to any such order as is referred to in subsection (1) or (2) of section 22.[cf. 1970 c. 45 s. 22 U.K.] 24. Settlement, etc., made in compliance with order under section 6 may be avoided on bankruptcy of settler The fact that a settlement or transfer of property had to be made in order to comply with an order of the court under section 6 shall not prevent that settlement or transfer from being a settlement of property to which section 49 of the Bankruptcy Ordinance (Cap. 6) applies.(Amended 76 of 1996 s. 79)[cf. 1970 c. 45 s. 23 U.K.] 25. Commencement of proceedings for financial provision orders, etc. (1) Where a petition or joint application for divorce or a petition for nullity of marriage or judicial separation has been presented or made, then, subject to subsection (2), proceedings under section 3, 4, 5, 6 or 6A may be begun, subject to and in accordance with rules of court, at any time after the presentation of the petition or the making of the application; but—(a) no order under section 4, 6 or 6A shall be made unless a decree nisi of divorce or of nullity of marriage or a decree of judicial separation, as the case may be, has been granted;(b) without prejudice to the power to give a direction under section 26, no such order made on or after granting a decree nisi of divorce or of nullity of marriage, and no settlement made in pursuance of such an order, shall take effect unless the decree has been made absolute.(2) Rules of court may provide, in such cases as may be prescribed by the rules—(a) that applications for ancillary relief shall be made in the petition, joint application or answer; and(b) that applications for ancillary relief which are not so made, or are not made until after the expiration of such period following the presentation of the petition, making of the joint application or filing of the answer as may be so prescribed, shall be made only with the leave of the court. (3) In subsection (2) ancillary relief (附屬濟助) means relief under any of the provisions of sections 3, 4, 5, 6 and 6A.(Amended 29 of 1995 s. 20; 69 of 1997 s. 33)[cf. 1970 c. 45 s. 24 U.K.] 26. Direction for instrument to be settled by the Registrar Where the court decides to make an order under this Ordinance requiring any payments to be secured or an order under section 6 or 6A—(a) it may direct that the matter be referred to the Registrar of the High Court for him to settle a proper instrument to be executed by all necessary parties; and (Amended 25 of 1998 s. 2)(b) in the case of an order under section 4, 5, 6 or 6A, it may, if it thinks fit, defer the grant of the decree in question until the instrument has been duly executed. (Amended 69 of 1997 s. 33)[cf. 1970 c. 45 s. 25 U.K.] 27. Payments etc., under order made in favour of person suffering from mental disorder Where the court makes an order under this Ordinance requiring payments (including a lump sum payment) to be made, property to be transferred, or the proceeds of sale of property by virtue of an order under section 6(1)(e) or 6A to be paid, to a party to a marriage and the court is satisfied that the person in whose favour the order is made is incapable, by reason of mental disorder within the meaning of the Mental Health Ordinance (Cap. 136), of managing and administering his or her property and affairs, then, subject to any order, direction or authority made or given in relation to that person under the said Ordinance, the court may order the payments to be made, the property to be transferred, or, as the case may be, the proceeds of sale of property to be paid, to such persons having charge of that person as the court may direct.(Amended 69 of 1997 s. 33)[cf. 1970 c. 45 s. 26 U.K.] 28. Attachment of income to satisfy order (1AA) In this section—Amendment Ordinance (《修訂條例》) means the Attachment of Income Order (Application to Government and Miscellaneous Amendments) Ordinance 2007 (20 of 2007); (Added 20 of 2007 s. 7)attachment order (扣押令) means an order made under subsection (1);designated payee (指定受款人) means, in relation to a maintenance order, the person named in that order as the person to whom the maintenance payments are to be made;income source (入息來源) means a person by whom the income of the maintenance payer is payable and includes the Government; (Added 20 of 2007 s. 7)maintenance payer (贍養費支付人) means, in relation to a maintenance order, the person against whom that order is made;specified payee (指明受款人) means, in relation to an attachment order, the person named in that order as the person to whom an amount attached by that order is to be paid.(Added 20 of 2001 s. 4. Amended 18 of 2003 s. 10)(1) Where a maintenance order has been made against a maintenance payer and—(a) (i) a court is satisfied that the payer has without reasonable excuse failed to make any payment which he is required to make by the maintenance order; or(ii) a court is satisfied that there are reasonable grounds to believe that the payer will not make full and punctual payment in compliance with the maintenance order; or(iii) the payer and designated payee agree to the making of an order under this section; and(b) there is any income capable of being attached payable to the payer,the court may, in accordance with rules made for the purpose of subsection (6), order the income to be attached as to the whole or part of the amount payable under the maintenance order and the amount attached to be paid to the specified payee. (Replaced 20 of 2001 s. 4)(1A) For the purpose of subsection (1)(a)(ii), in deciding whether there are reasonable grounds to believe that the maintenance payer will not make full and punctual payment in compliance with the maintenance order, the court shall take into account all the circumstances of the case, including (but not limited to)—(a) the payer’s past record and conduct in discharging his reasonable financial obligation towards the designated payee before any maintenance order is made;(b) the payer’s past record and conduct in connection with the making of maintenance payments to the payee pursuant to the maintenance order or an undertaking in any proceedings; and(c) the risk of the payer dissipating his property. (Added 20 of 2001 s. 4)(2) (Repealed 20 of 2001 s. 4)(2A) The court may, at any time after a maintenance order has been made, including in the same hearing in which the maintenance order is made or varied, make an attachment order. (Added 20 of 2001 s. 4)(2B) An attachment order may be made by the court on its own motion or on the application by the maintenance payer or the designated payee or both. (Added 20 of 2001 s. 4)(3) An attachment order is an authority to an income source to make the payment in accordance with the order, and the receipt of the specified payee is a good discharge to that income source. (Replaced 20 of 2007 s. 7)(3A) Without limiting the generality of subsection (1), that subsection applies to income that is wages or salary payable to a maintenance payer by the Government, and accordingly paragraph (a) of the proviso to section 23(1) of the Crown Proceedings Ordinance (Cap. 300) is not to be construed as precluding the court from making an attachment order in respect of such wages or salary. (Added 20 of 2007 s. 7)(4) Without limiting the generality of subsection (1), that subsection applies to income that is wages payable to a maintenance payer by a person other than the Government, and accordingly section 66 of the Employment Ordinance (Cap. 57) is not to be construed as precluding the court from making an attachment order in respect of such wages. (Replaced 20 of 2007 s. 7)(5) Where—(a) pursuant to an attachment order, an employer is required to make a deduction from the wages of his employee in any wage period; and(b) that deduction, together with any deduction authorized to be made under section 32 of the Employment Ordinance (Cap. 57) by the employer from the employee’s wages in the same wage period would in total exceed the whole of the wages payable to the employee in respect of that wage period,then the amount liable to be deducted by the employer pursuant to the attachment order shall be treated as being reduced by such an amount that the total of all deductions made by the employer does not exceed the whole of the wages payable to the employee in respect of the wage period.(6) Rules made under section 32 may, in relation to proceedings under subsection (1), make provision for—(a) the matters to be contained in any application for an attachment order, and the manner of filing and service of such an application;(b) compliance with an attachment order;(c) the obligations on the part of the income source; (Replaced 20 of 2007 s. 7)(d) the obligations of the maintenance payer when an attachment order is in force or in the event of an attachment order ceasing to have effect for any reason;(e) the recovery from the maintenance payer of the clerical and administrative costs incurred in complying with an attachment order;(f) the variation or discharge of an attachment order;(g) the enforcement of an attachment order.(6A) Rules made for the purpose of subsection (6) may empower the court to dispense with or relax any procedure or abridge any time limit specified in the rules if the court is satisfied that it is fair and reasonable to do so in the circumstances of the case. (Added 20 of 2001 s. 4)(7) Rules made for the purpose of subsection (6) may provide that the contravention of any rule shall constitute an offence punishable by a fine at level 2 and by imprisonment for 1 month.(8) The Chief Justice may specify the form of any document which is to be or may be filed in proceedings under subsection (1).(9) Any attachment order—(a) made by the court before the commencement date* of the Amendment Ordinance in respect of the wages or salary payable to a maintenance payer by the Government; and(b) which has not been discharged or declared invalid by the court as at that commencement date,has effect from that commencement date as if it were made under subsection (1) as read with subsection (3A). (Added 20 of 2007 s. 7)(10) An application—(a) for an attachment order in respect of the wages or salary payable to a maintenance payer by the Government;(b) that is pending immediately before the commencement date* of the Amendment Ordinance; and(c) in which an attachment order has not been made as at that commencement date,is to be determined in accordance with this section as amended by the Amendment Ordinance. (Added 20 of 2007 s. 7)(Added 69 of 1997 s. 30)Editorial Note:* Commencement date: 23 November 2007. 28AA. Interest on arrears of maintenance (1) In this section and section 28AB—*commencement date (生效日期) means the date on which the Interest and Surcharge on Arrears of Maintenance Ordinance 2003 (18 of 2003) comes into operation;judgment creditor (判定債權人) means a person entitled to enforce a maintenance order;judgment debtor (判定債務人) means a person liable under a maintenance order.(2) Where a maintenance order has been made against a judgment debtor, and the judgment debtor fails to make full and punctual payment in compliance with the maintenance order, the judgment creditor is entitled to interest in respect of arrears of maintenance which accrue on or after the commencement date.(3) Subject to subsection (5) and for the purposes of subsection (2)—(a) the arrears in respect of each periodical payment, secured periodical payment or payment of a lump sum, as the case may be, under a maintenance order shall be treated as a judgment debt for the purposes of section 50 of the District Court Ordinance (Cap. 336);(b) the interest under subsection (2) shall be calculated in accordance with that section 50; and(c) for the purposes of that section 50, the date on which payment is due as specified by the maintenance order shall be treated as the date of the judgment.(4) The judgment debtor is liable to pay the interest under subsection (2).(5) If the court grants leave, on the application of a judgment creditor for leave under section 12, to enforce arrears of maintenance which became due for more than 12 months, the interest under subsection (2) shall be calculated from the date specified by the court as being the date on which the judgment creditor is entitled to enforce the payment of the arrears.(6) If any payment under a maintenance order is not paid and interest in respect of the arrears has accrued under subsection (2), and subsequently the judgment debtor makes payment, the payment is deemed to be made in the following order in or towards the discharge of—(a) interest accrued under subsection (2);(b) surcharge payable under section 28AB;(c) if there are any proceedings instituted for enforcing the maintenance order, the costs ordered by the court to be paid under those proceedings;(d) any sums from time to time falling due under the maintenance order, with the sums discharged in the reversed chronological sequence of the dates on which payment is due (that is, the most recent arrears will be discharged first);(e) if the court makes an order in any proceedings instituted for enforcing the maintenance order, the amount of the maintenance in arrears, whether in one amount or by instalments, payable by the judgment debtor under the order.(7) A judgment debtor who considers that he has reasonable grounds not to pay the interest under subsection (2) may, within a reasonable time after having knowledge of the requirement to pay, apply by summons to the court not to pay the interest, and shall set out the grounds in the application.(8) If an application is made under subsection (7), in deciding whether to require the judgment debtor to pay interest and, if so, the amount of interest, the court shall take into account all the circumstances of the case, including (but not limited to) the following—(a) whether the judgment debtor has a reasonable excuse for his failure to comply with the maintenance order;(b) whether the judgment debtor has evaded service of court documents;(c) the judgment debtor’s past record and conduct in connection with the making of maintenance payments to the judgment creditor pursuant to the maintenance order or an undertaking in any proceedings;(d) whether the judgment debtor has given the judgment creditor a reasonable explanation for his failure to comply with the maintenance order; and(e) the judgment debtor’s ability to pay.(9) A judgment debtor who is aggrieved by a requirement under subsection (8) to pay interest may appeal to the Court of Appeal against the decision under section 63 of the District Court Ordinance (Cap. 336).(Added 18 of 2003 s. 11)Editorial Note:* Commencement date : 1 May 2005. 28AB. Surcharge on arrears of maintenance (1) Where a maintenance order has been made against a judgment debtor, and the judgment debtor, without reasonable excuse, repeatedly fails to make full and punctual payment in compliance with the maintenance order, the court may, on application made by the judgment creditor, make an order requiring the judgment debtor to pay to the judgment creditor a surcharge in respect of the total arrears of maintenance which accrue on or after the commencement date.(2) The application for a surcharge under subsection (1) may be made—(a) in proceedings instituted for enforcing the maintenance order; or(b) in a manner described in subsections (3), (4), (5), (6), (7), (8) and (9).(3) For the purposes of subsection (2)(b), the application for a surcharge shall be made by a summons supported by an affidavit of the judgment creditor stating—(a) the name of the judgment creditor and the address for service of the documents relating to the application;(b) the name and the address for service or last known address of the judgment debtor;(c) the particulars of the maintenance order;(d) the total arrears of maintenance due and unpaid and the date on which the arrears first accrued;(e) a request for an order requiring the judgment debtor to pay surcharge at a rate to be decided by the court under subsection (11);(f) a request for fixing a date, time and place for the hearing of the application;(g) a request for an order requiring the judgment debtor to pay to the judgment creditor the surcharge claimed if the judgment debtor does not appear at the hearing.(4) On receipt of the summons and affidavit, the court shall fix a date, time and place for the hearing of the application.(5) The judgment creditor shall serve a sealed copy of the summons and a copy of the affidavit, together with a notice of the hearing, on the judgment debtor.(6) Without prejudice to any enactment relating to the service of documents and save as is otherwise expressly provided, the summons, affidavit and notice may—(a) be personally served on the judgment debtor; or(b) be sent—(i) if the judgment debtor is represented, by post to the solicitor acting for that judgment debtor, or by leaving the same with the solicitor; or(ii) if the judgment debtor is unrepresented, by post to the address for service given by him or his last known address, or by leaving the same at the address for service or the last known address of that judgment debtor; or(c) be served in such other manner as the court directs.(7) If the judgment debtor fails to appear at the hearing of the application on the date fixed under subsection (4), then—(a) if the court is satisfied that the summons, affidavit and notice have been duly served on the judgment debtor, it may proceed to hear the application and may make an order requiring the judgment debtor to pay a surcharge to the judgment creditor;(b) if the court is not satisfied that the summons, affidavit and notice have been duly served on the judgment debtor, it may adjourn the hearing to a date, time and place as it thinks fit.(8) The judgment creditor shall serve a notice of the adjourned hearing on the judgment debtor.(9) If the judgment debtor fails to appear at the adjourned hearing on the date fixed under subsection (7)(b), the court may proceed to hear the application and may make an order requiring the judgment debtor to pay a surcharge to the judgment creditor.(10) If the judgment debtor, within a reasonable time after having knowledge of the order made under subsection (7)(a) or (9), applies by summons to vary or set aside the order, the court may, if it is satisfied that there is reasonable excuse for the judgment debtor’s failure to—(a) appear at the hearing; and(b) make full and punctual payment in compliance with the maintenance order,vary or set aside the order on such terms as it thinks fit.(11) Subject to subsection (13), the amount of surcharge payable by the judgment debtor under subsection (1) shall not exceed 100% of the total arrears of maintenance calculated from the date on which the arrears first accrued to the date of payment of the surcharge.(12) If the court makes an order requiring the judgment debtor to pay a surcharge, it shall specify in the order the amount of surcharge payable by the judgment debtor and the date of payment.(13) If the court grants leave, on the application of a judgment creditor for leave under section 12 to enforce arrears of maintenance which became due for more than 12 months, the surcharge under subsection (1) shall be calculated from the date specified by the court as being the date on which the judgment creditor is entitled to enforce the payment of the arrears.(14) A surcharge payable under this section is recoverable as a civil debt due to the judgment creditor by the judgment debtor. An action under this subsection may be brought in the District Court even though the amount to be recovered otherwise exceeds the limit of jurisdiction of the District Court.(15) A judgment debtor who is aggrieved by an order to pay a surcharge may appeal to the Court of Appeal against the order under section 63 of the District Court Ordinance (Cap. 336).(Added 18 of 2003 s. 11) 28A. Notice of change of address (1) Any person for the time being under an obligation to make payments, including costs, under an order under this Ordinance shall within 14 days of any change of his address give notice of his new address to any person whose name is specified in the order by sending it by registered post to the last known address of that person or to such address as may be notified to him by that person for the purposes of this section.(2) A person who, without reasonable excuse, contravenes subsection (1) commits an offence and is liable to a fine at level 2.(Added 69 of 1997 s. 31) 29. Validation of certain void or voidable decrees Any decree of divorce, nullity of marriage or judicial separation which, apart from this section, would be void or voidable on the ground only that the provisions of section 45 of the Matrimonial Causes Ordinance (Cap. 179) (which restricts the making of decrees of dissolution or separation where children are affected) had not been complied with when the decree was made absolute or granted, as the case may be, shall be deemed always to have been valid unless—(a) before the commencement of this Ordinance the court declared the decree to be void; or(b) in proceedings for the annulment of the decree pending at the said commencement the court declares the decree to be void.[cf. 1970 c. 45 s. 29 U.K.] Part IIA Financial Relief in Hong Kong after Divorce, etc. Outside Hong Kong (Part IIA added 20 of 2010 s. 3) 29AA. Interpretation of Part IIA In this Part—competent authority outside Hong Kong (境外主管當局) means any court or public body outside Hong Kong;disposition (財產處置) does not include any provision contained in a will or codicil but, with that exception, includes any conveyance, assurance or gift of property of any description, whether made by an instrument or otherwise;order for financial relief (經濟濟助命令), except in section 29AJ, means an order that the court may make under section 29AG. 29AB. Applications for financial relief after divorce, etc. outside Hong Kong (1) If—(a) a marriage has been dissolved or annulled, or the parties to a marriage have been legally separated, by means of judicial or other proceedings in a place outside Hong Kong; and(b) the divorce, annulment or legal separation is recognized as valid by the law of Hong Kong,either of the parties to the marriage may apply to the court in accordance with rules of court for an order for financial relief.(2) If after a marriage has been dissolved or annulled in a place outside Hong Kong, one of the parties to the marriage remarries, that party is not entitled to make an application in relation to that marriage. 29AC. Leave of court required for applications for financial relief (1) No application for an order for financial relief may be made unless the leave of the court has been obtained in accordance with rules of court.(2) The court must not grant leave unless it considers that there is substantial ground for the making of an application for an order for financial relief.(3) The court may grant leave under this section despite the fact that an order has been made by a competent authority outside Hong Kong requiring the other party to the marriage to make any payment or transfer any property to, or for the benefit of, the applicant or a child of the family.(4) Leave under this section may be granted subject to any conditions the court thinks fit. 29AD. Interim orders for maintenance (1) If leave is granted under section 29AC for the making of an application for an order for financial relief and it appears to the court that the applicant or any child of the family is in immediate need of financial assistance, the court may make an order requiring the other party to the marriage to make to the applicant or the child any periodical payments the court thinks reasonable.(2) The periodical payments may be for a term that the court thinks reasonable, but the term must not begin earlier than the date of the grant of leave and must end on the date of the determination of the application for an order for financial relief.(3) An order under this section may be made subject to any conditions the court thinks fit. 29AE. Jurisdiction of court The court has jurisdiction to entertain an application for an order for financial relief if any of the following jurisdictional requirements is satisfied—(a) either of the parties to the marriage was domiciled in Hong Kong—(i) on the date of the application for leave under section 29AC; or(ii) on the date on which the divorce, annulment or legal separation obtained in the place outside Hong Kong took effect in that place;(b) either of the parties to the marriage was habitually resident in Hong Kong—(i) throughout the period of 3 years immediately before the date of the application for leave under section 29AC; or(ii) throughout the period of 3 years immediately before the date on which the divorce, annulment or legal separation obtained in the place outside Hong Kong took effect in that place; or(c) either of the parties to the marriage had a substantial connection with Hong Kong—(i) on the date of the application for leave under section 29AC; or(ii) on the date on which the divorce, annulment or legal separation obtained in the place outside Hong Kong took effect in that place. 29AF. Duty of court to consider whether Hong Kong is appropriate venue for application (1) Before making an order for financial relief, the court must consider whether in all the circumstances of the case it would be appropriate for the order to be made by a court in Hong Kong, and if the court is not satisfied that it would be appropriate, the court must dismiss the application.(2) The court must in particular have regard to the following matters—(a) the connection that the parties to the marriage have with Hong Kong;(b) the connection that those parties have with the place where the marriage was dissolved or annulled or where they were legally separated;(c) the connection that those parties have with any other place outside Hong Kong;(d) any financial benefit that the applicant or a child of the family has received, or is likely to receive, in consequence of the divorce, annulment or legal separation, by virtue of any agreement or the operation of the law of a place outside Hong Kong;(e) if an order has been made by a competent authority outside Hong Kong requiring the other party to the marriage to make any payment or transfer any property to, or for the benefit of, the applicant or a child of the family—(i) the financial relief given by the order; and(ii) the extent to which the order has been complied with or is likely to be complied with;(f) any right that the applicant has, or has had, to apply for financial relief from the other party to the marriage under the law of any place outside Hong Kong and, if the applicant has not exercised that right, the reason for that;(g) the availability of any property in Hong Kong in respect of which an order for financial relief in favour of the applicant may be made;(h) the extent to which any order for financial relief is likely to be enforceable;(i) the length of time that has elapsed since the date of the divorce, annulment or legal separation. 29AG. Orders for financial provision and property adjustment (1) On an application by a party to a marriage for an order for financial relief, the court may make any one or more of the orders that it could make under section 4, 5 or 6 if a decree of divorce, a decree of nullity of marriage or a decree of judicial separation in respect of the marriage had been granted in Hong Kong.(2) If under subsection (1) the court makes an order mentioned in section 4, 5 or 6, then, on making that order or at any time after the making of that order, the court may make an order mentioned in section 6A(1). 29AH. Matters to which court is to have regard in exercising its powers under section 29AG (1) In deciding whether to exercise its powers under section 29AG and, if so, in what manner, the court must make its decision in accordance with this section.(2) As regards the exercise of those powers in relation to a party to the marriage, the court must have regard to the conduct of the parties and all the circumstances of the case including the matters mentioned in section 7(1)(a), (b), (c), (d), (e), (f) and (g).(3) As regards the exercise of those powers in relation to a child of the family, the court must—(a) have regard to all the circumstances of the case including the matters mentioned in section 7(2)(a), (b), (c), (d) and (e); and(b) if it decides to exercise those powers, exercise them in the manner specified in section 7(2).(4) As regards the exercise of those powers against a party to the marriage in favour of a child of the family who is not the child of that party, the court must have regard to all the circumstances of the case including the matters mentioned in section 7(3)(a), (b) and (c).(5) If an order has been made by a competent authority outside Hong Kong for the making of payments or the transfer of property by a party to the marriage, the court in considering in accordance with this section the financial resources of the other party to the marriage or a child of the family must have regard to the extent to which that order has been complied with or is likely to be complied with. 29AI. Application of certain provisions of Part II to orders made under sections 29AD and 29AG The following provisions of Part II apply in relation to an order made under section 29AD or 29AG as they apply in relation to a like order under those provisions—(a) section 4(2);(b) section 5(3) and (4);(c) section 6A(2), (3), (4), (5) and (6);(d) section 9(1), (2) and (3);(e) section 10;(f) section 11, except subsections (2)(d) and (4);(g) section 12;(h) section 13;(i) section 23;(j) section 24;(k) section 26(a);(l) section 27;(m) section 28;(n) section 28AA;(o) section 28AB. 29AJ. Avoidance of transactions intended to defeat applications for financial relief under section 29AD or 29AG (1) If leave is granted under section 29AC for the making by a party to a marriage of an application for an order for financial relief under section 29AG, the court may, on an application by that party, make an order mentioned in subsection (2) or (3).(2) If the court is satisfied that the other party to the marriage is, with the intention of defeating the claim for financial relief, about to make any disposition or to transfer out of the jurisdiction or otherwise deal with any property, the court may make any order it thinks fit for restraining the other party from so doing or otherwise for protecting the claim.(3) If the court is satisfied that the other party to the marriage has, with the intention of defeating the claim for financial relief, made a disposition to which this subsection applies, and that if the disposition were set aside, financial relief or different financial relief would be granted to the applicant, the court may make an order setting aside the disposition.(4) If an order for financial relief under section 29AD or 29AG has been made by the court at the instance of a party to a marriage, then, on an application by that party, the court may, if it is satisfied that the other party to the marriage has, with the intention of defeating the claim for financial relief, made a disposition to which this subsection applies, make an order setting aside the disposition.(5) Subsections (3) and (4) apply respectively to a disposition made by the other party to the marriage (whether before or after the commencement of the application), not being a disposition made for valuable consideration (other than marriage) to a person who, at the time of the disposition, acted in relation to it in good faith and without notice of any intention on the part of the other party to defeat the applicant’s claim for financial relief.(6) If the court makes an order under subsection (3) or (4) setting aside a disposition, it may give any consequential directions it thinks fit for giving effect to the order; including directions requiring the making of any payment or the disposal of any property.(7) Subsection (8) applies if an application is made under subsection (1) or (4), with respect to a disposition that took place less than 3 years before the date of the application or with respect to a disposition or other dealing with property that is about to take place.(8) If the court is satisfied—(a) in a case falling within subsection (2), that the disposition or other dealing would (apart from this section) have the consequence of defeating the applicant’s claim for financial relief; or(b) in a case falling within subsection (3) or (4), that the disposition has had the consequence of defeating the applicant’s claim for financial relief,it is to be presumed, unless the contrary is shown, that the person who disposed of or is about to dispose of or deal with the property did so or, as the case may be, is about to do so, with the intention of defeating the applicant’s claim for financial relief.(9) In this section, any reference to defeating a claim by a party to a marriage for financial relief is a reference to—(a) preventing financial relief from being granted or reducing the amount of relief that might be granted; or(b) frustrating or impeding the enforcement of any order that might be or has been made under section 29AD or 29AG. 29AK. Prevention of transactions intended to defeat prospective applications for financial relief (1) The court may make an order under subsection (2) if, on an application by a party to a marriage for the order, it appears to the court—(a) that the marriage has been dissolved or annulled, or that the parties to the marriage have been legally separated, by means of judicial or other proceedings in a place outside Hong Kong;(b) that the divorce, annulment or legal separation is recognized as valid by the law of Hong Kong;(c) that the applicant intends to apply for leave to make an application for an order for financial relief as soon as he or she has been habitually resident in Hong Kong throughout a period of 3 years immediately before the date of the application; and(d) that the other party to the marriage is, with the intention of defeating the claim for financial relief, about to make any disposition or to transfer out of the jurisdiction or otherwise deal with any property.(2) The court may make any order it thinks fit for restraining the other party to the marriage from making any disposition or transferring out of the jurisdiction or otherwise dealing with any property.(3) If an application is made under subsection (1) with respect to a disposition or other dealing with property that is about to take place and the court is satisfied that the disposition or other dealing would (apart from this section) have the consequence of defeating the applicant’s claim for financial relief, it is to be presumed, unless the contrary is shown, that the person who is about to dispose of or deal with the property is about to do so, with the intention of defeating the applicant’s claim for financial relief.(4) In this section, any reference to defeating a claim by a party to a marriage for financial relief is a reference to—(a) preventing financial relief from being granted or reducing the amount of relief that might be granted; or(b) frustrating or impeding the enforcement of any order that might be made under section 29AG. 29AL. Power to grant injunctions not affected Sections 29AJ and 29AK do not affect any power of the High Court to grant an interlocutory injunction under section 21L(1) or 21M(1) of the High Court Ordinance (Cap. 4). Part III Miscellaneous Provisions 29A. Power of court hearing petition to terminate subsisting maintenance order made by another court (1) If, at the time of the presentation or making of a petition or joint application for divorce, nullity of marriage or judicial separation, there is subsisting an order, made by a court in previous proceedings between the same persons as are parties to the petition or application, requiring financial provision to be made for the maintenance by one of the parties of the other, or for the maintenance by either or both of the parties of a child of the family, the court hearing the petition or application may, if it thinks fit, direct that the said order shall cease to have effect on such date as may be specified in the direction. (Amended 29 of 1995 s. 21)(2) For the purpose of this section parties to the petition (呈請雙方) means the petitioner and the respondent.(Added 64 of 1979 s. 2)[cf. 1960 c. 48 s. 7(3) U.K.] 30. Jurisdiction of, and appeal on question of fact from, District Court The jurisdiction conferred on the District Court by this Ordinance shall be exercisable by the District Court notwithstanding that by reason of the amount claimed in an application made under this Ordinance the jurisdiction would not but for this section be exercisable by the District Court.(Amended 79 of 1981 s. 7; L.N. 145 of 1992)[cf. 1970 c. 45 s. 34 U.K.] 31. Devolution of property on intestacy of separated spouse Section 32(3) of the Matrimonial Causes Ordinance (Cap. 179) (which provides that in a case of judicial separation certain property of the wife shall, if she dies intestate, devolve as if her husband had then been dead) shall cease to have effect except in relation to a case where the death occurred before the commencement of this Ordinance.[cf. 1970 c. 45 s. 40(3) U.K.] 32. Rules of court (1) The Chief Judge may make rules of court for the better carrying out of the purposes and provisions of this Ordinance. (Amended 20 of 2010 s. 4)(2) Without limiting subsection (1), the Chief Judge may make rules of court—(a) as to all matters of procedure under this Ordinance;(b) prescribing the forms to be used under this Ordinance;(c) with regard to any matter as to which rules may be made under this Ordinance; and(d) providing for the enforcement in the High Court of orders made under this Ordinance in the District Court. (Added 20 of 2010 s. 4) 33. Transitional (1) The amendments to sections 2(1), 19 and 20(1), and the amendment adding section 28A, of this Ordinance made by sections 22, 28, 29 and 31 of the Marriage and Children (Miscellaneous Amendments) Ordinance 1997 (69 of 1997) (the amending Ordinance) do not apply in relation to orders made before the commencement of the amending Ordinance, and the provisions of this Ordinance in force immediately before the commencement of the amending Ordinance continue to apply in relation to those orders as if the amending Ordinance had not been enacted.(2) The amendments to section 10 of this Ordinance made by section 26 of the amending Ordinance—(a) do not apply in relation to orders made before that commencement under section 5, 6(1)(a) or 8 of this Ordinance in favour of a child if the term of the order extends beyond the date when the child will attain the age of 21;(b) except as provided in paragraph (a), apply in relation to orders made before that commencement, but where such an order provides for payments to be made or secured to or for the benefit of a child for a term extending beyond the date when the child will attain the age of 18 but not beyond the date when the child will attain the age of 21, nothing in this subsection shall be construed as affecting the term of such order.(Added 69 of 1997 s. 32) First Schedule (Omitted as spent—E.R. 3 of 2018) Second Schedule (Omitted as spent—E.R. 3 of 2018)