Cap. 16 - Separation and Maintenance Orders Ordinance

To make better provision in Hong Kong for the granting by the District Court of separation and maintenance orders. (Amended 35 of 1969 Schedule; 25 of 1998 s. 2) [6 December 1935](Format changes—E.R. 2 of 2019) 1. Short title This Ordinance may be cited as the Separation and Maintenance Orders Ordinance. 2. Interpretation In this Ordinance, unless the context otherwise requires—education (敎育) includes training; (Added 69 of 1997 s. 9)habitual drunkard (慣性酗酒者) and drug addict (吸毒者) mean a person who is, by reason of habitual intemperate drinking of intoxicating liquor, or habitual taking or using, except upon and in accordance with medical advice, of opium, or any dangerous drug within the meaning of the Dangerous Drugs Ordinance (Cap. 134), at times dangerous to himself or herself or to others, or incapable of managing himself or herself, and his or her affairs; [cf. 1879 c. 19 s. 3 U.K.; 1925 c. 51 s. 3 U.K.]husband (丈夫) means the husband or partner of a wife or married woman; (Added 28 of 1971 s. 19)maintenance order (贍養令) means an order made—(a) under section 5(1)(c) or (d) or 9(1) for periodical payments; or(b) under section 5(1)(c) or (d) for payment of a lump sum; (Added 18 of 2003 s. 5)married person (已婚人士) means a husband or a wife; (Added 69 of 1997 s. 9)other party to the marriage (婚姻的另一方) means, in relation to a husband or a wife, the wife or husband of that person; (Added 69 of 1997 s. 9)wife (妻子) and married woman (已婚女子) mean the wife or partner of a man by—(a) a marriage celebrated or contracted in accordance with the provisions of the Marriage Ordinance (Cap. 181);(b) a modern marriage validated by the Marriage Reform Ordinance (Cap. 178);(c) a customary marriage declared to be valid by the Marriage Reform Ordinance (Cap. 178);(d) a union of concubinage as defined by section 14 of the Legitimacy Ordinance (Cap. 184);(e) a kim tiu marriage entered in accordance with Chinese law and custom applicable thereto in Hong Kong before the appointed day under the Marriage Reform Ordinance (Cap. 178); or(f) a marriage celebrated or contracted outside Hong Kong in accordance with the law in force at the time and in the place where the marriage was performed. (Replaced 28 of 1971 s. 19) 3. Grounds on which an application for a section 5 order may be made (1) Where a married person—(a) has been convicted summarily of an assault upon the other party to the marriage which in the opinion of the convicting magistrate is of an aggravated character;(b) has been convicted whether on indictment or summarily of an assault upon the other party to the marriage, and sentenced to pay a fine of more than $500 or to a term of imprisonment exceeding 2 months;(c) has deserted the other party to the marriage;(d) has been guilty of persistent cruelty to the other party to the marriage or that party’s children;(e) has failed to provide reasonable maintenance for the other party to the marriage or reasonable maintenance and education for that party’s children whom the married person is legally liable to maintain;(f) has, while suffering from a venereal disease, and knowing that he or she was so suffering, insisted on having sexual intercourse with the other party to the marriage;(g) has compelled the other party to the marriage to submit to prostitution;(h) is a habitual drunkard, or a drug addict,that other party may apply to the District Court for an order under this Ordinance.(2) For the purpose of subsection (1)(g), where a married person has, in the opinion of the District Court, been guilty of such conduct as was likely to result and has resulted in the other party to the marriage submitting to prostitution, that person shall be deemed to have compelled the other party to the marriage so to submit.(Replaced 69 of 1997 s. 10) 4. (Repealed 69 of 1997 s. 10) 5. Powers of District Court (1) On any application under section 3, the District Court may make an order containing all or any of the following provisions—(a) that the applicant be no longer bound to cohabit with the other party to the marriage (which provision while in force shall have the effect of a decree of judicial separation on the ground of cruelty);(b) that the legal custody of any children of the marriage be committed to the husband, or to the wife, until such children attain the age of 18 years;(c) that the husband or wife shall pay to the other party to the marriage, or to the Registrar of the District Court or any third person on such other party’s behalf, such lump sum (whether in one amount or by instalments) or periodical payments or both as the court, having regard to the means of both of the parties to the marriage, considers reasonable, and an order under this paragraph for the payment of a lump sum may be made for the purpose of enabling any liabilities or expenses reasonably incurred in maintaining such other party before the making of the order to be met;(d) that the husband or wife shall pay to the other party to the marriage, or to the said Registrar or any third person on such other party’s behalf, such lump sum (whether in one amount or by instalments) or periodical payments or both as the court considers reasonable, having regard to the means of both of the parties to the marriage, for the maintenance and education of each child of the marriage committed to such other party’s custody under paragraph (b);(e) a provision for payment by the husband or the wife, or both of them, of such reasonable costs of the parties or either of them as the court may think fit.(2) An order under subsection (1)(d) directing a lump sum payment for the maintenance and education of a child of the marriage shall only be made for the purpose of—(a) providing for the immediate and non-recurring needs of the child; or(b) enabling any liabilities or expenses reasonably incurred in maintaining or educating the child before the making of the order to be met,or for both such purposes.(3) In making an order under subsection (1), the court shall have regard primarily to the best interests of the children.(Replaced 69 of 1997 s. 11) 6. Limitation of powers of District Court (1) No order shall be made under this Ordinance if it is proved that the applicant has committed an act of adultery:Provided that the husband or, as the case may be, the wife, of the applicant has not condoned, or connived at, or by his or her wilful neglect or misconduct conduced to such act of adultery.(2) No order made under this Ordinance shall be enforceable and no liability shall accrue under any such order whilst the married woman, and her husband, with respect to whom the order was made, reside together, and any such order shall cease to have effect if for a period of 3 months after it is made the married woman and her husband continue to reside together.[cf. 1895 c. 39 s. 6 U.K.; 1925 c. 51 s. 1(4) U.K.] 6A. Condonation For the purposes of this Ordinance, adultery and cruelty shall not be deemed to have been condoned by reason only of a continuation or resumption of cohabitation between the parties for one period not exceeding 3 months, or of any thing done during such cohabitation, if it is proved that cohabitation has continued or resumed, as the case may be, with a view to effecting a reconciliation.(Added 33 of 1972 s. 25)[cf. 1965 c. 72 s. 42(2) U.K.] 7. District Court may vary or discharge order (1) The District Court may on the application of the husband or the wife, and upon cause being shown on fresh evidence, at any time alter, vary, discharge, suspend or revive after being so suspended any order (other than an order for a lump sum payment in one amount or for a lump sum to be paid in instalments where all such instalments have been paid) made under this Ordinance, and may from time to time increase or diminish the amount of any unpaid instalment of a lump sum payment or periodical payments or both ordered to be paid under section 5.(2) The jurisdiction conferred by subsection (1) shall be exercisable notwithstanding that the proceedings for the revocation, variation, discharge or suspension of the order or the revival of an order which has been suspended are brought by or against a person residing outside Hong Kong.(3) Subject to subsection (4), if any married person who has applied for an order and with respect to whom an order has been made under this Ordinance voluntarily resumes cohabitation with the other party to the marriage, or commits an act of adultery, such order shall upon proof of such matter be discharged.(4) The District Court may, if it thinks fit—(a) refuse to discharge an order under this Ordinance as provided in subsection (3) if in its opinion the act of adultery was conduced to by the failure of the other party to the marriage to make such payments as in the opinion of the court he or she was able to make under the order; and(b) in the event of an order being discharged as provided in subsection (3), make a new order ordering that the legal custody of the children of the marriage shall continue to be committed to the married person mentioned in subsection (3) until such children attain the age of 18 years, and that the other party to the marriage shall pay to that married person, or to the Registrar of the District Court or any third person on the married person’s behalf, either or both of the following—(i) such lump sum (whether in one amount or by instalments) for—(A) the immediate and non-recurring needs of the child; or(B) the purpose of enabling any liabilities or expenses reasonably incurred in maintaining and educating the child before the making of the order to be met,or for both, as the court considers reasonable, having regard to the means of both the husband and the wife and to any payment previously made under any order for a lump sum payment;(ii) such periodical payments as the court considers reasonable having regard to the means of both the husband and the wife for the maintenance and education of the child until that child attains the age of 18 years.(5) In making an order under subsection (4)(b) the court shall have regard primarily to the best interests of the children.(Replaced 69 of 1997 s. 12) 8. District Court may refuse an order in cases more fit for the Court of First Instance If in the opinion of the District Court the matters in question between the parties or any of them would be more conveniently dealt with by the Court of First Instance, the District Court may refuse to make an order under this Ordinance, and in such case, without prejudice to the general right of appeal conferred by Part 4 of the District Court Ordinance (Cap. 336), no appeal shall lie from the decision of the District Court:Provided that the Court of First Instance shall have power by order in any proceeding in the Court of First Instance relating to or comprising the same subject matter as the application so refused as aforesaid, or any part thereof, to direct the District Court to rehear and determine the same.(Amended 35 of 1969 Schedule; 25 of 1998 s. 2; E.R. 1 of 2013)[cf. 1895 c. 39 s. 10 U.K.] 9. Power to order interim payments where application for maintenance is adjourned (1) Subject to subsection (2), where, on the hearing of an application for an order under this Ordinance for maintenance or for maintenance and education, the application is adjourned for a period exceeding 1 week, the District Court may order the respondent to pay to the applicant or to the Registrar of the District Court or any third person on the applicant’s behalf such periodical payments as the court considers reasonable for the maintenance of the applicant and the maintenance and education of any child or children in the applicant’s custody until the final determination of the application.(2) An order under this section shall operate for not more than 3 months from the date on which it is made.(3) An order under this section shall be enforceable in like manner as if it were a final order of the District Court.(Replaced 69 of 1997 s. 13) 9A. 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. 5)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. 5)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. 3. Amended 18 of 2003 s. 6)(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 under 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. 3)(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. 3)(2) (Repealed 20 of 2001 s. 3)(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. 3)(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. 3)(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. 5)(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. 5)(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. 5)(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) The Chief Justice may make such rules of court as he considers necessary or expedient for the purpose of giving effect to subsection (1), and rules made under this subsection may in particular provide 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. 5)(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 under 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. 3)(7) Rules made under 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. 5)(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. 5)(Added 69 of 1997 s. 14) Editorial Note: * Commencement date: 23 November 2007. 9B. Interest on arrears of maintenance (1) In this section and section 9C—*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) For the purposes of subsection (2)—(a) the arrears in respect of each 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 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 9C;(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.(6) 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.(7) If an application is made under subsection (6), 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.(8) A judgment debtor who is aggrieved by a requirement under subsection (7) 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. 7)Editorial Note:* Commencement date : 1 May 2005. 9C. 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) 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) 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.(14) 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. 7) 10. 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.(Replaced 69 of 1997 s. 15) 11. Procedure Except as otherwise expressly provided in this Ordinance, all applications under this Ordinance shall be made and be dealt with and all orders be enforced in accordance with Part 4 of the District Court Ordinance (Cap. 336).(Amended 35 of 1969 Schedule; 69 of 1997 s. 16; E.R. 1 of 2013) 12. Provisions as to powers of court to make orders in favour of children and duration of such orders (1) Subject to subsection (2), the term for which by virtue of an order under section 5(1)(d) or 9 any payments are to be made 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.(2) The court may include in an order referred to in subsection (1) in relation to a child who has not attained the age of 18 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 for the benefit of that child, if it appears to the court that—(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.(3) Any order for periodical payments made by virtue of section 5(1)(d) or 7(4)(b)(ii) shall, regardless of 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.(Replaced 69 of 1997 s. 17) 13. Transitional (1) The amendments to sections 2, 3, 4, 5, 7, 9 and 10 of this Ordinance made by sections 9, 10, 11, 12, 13 and 15 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 amendment adding section 9A, and the amendments to section 12, of this Ordinance made by sections 14 and 17 of the amending Ordinance apply in relation to orders made before the commencement of the amending Ordinance as they apply in relation to orders made after that commencement, but where an order made before that commencement provides for payments to be made in respect of a child beyond the date when the child will attain the age of 18, nothing in this subsection shall be construed as affecting the term of such order.(3) Section 12(2) of this Ordinance (as substituted by section 17 of the amending Ordinance) applies in relation to a child who at the commencement of the amending Ordinance has attained the age of 18 as if reference in that subsection to the age of 18 was a reference to the age of 21.(Added 69 of 1997 s. 18)