Divide to conquer – the bifurcation process - what happens if there is no one size fits all?

By Winnie Chow, Collaborative Practitioner, Partner of CRB

https://www.crb.com.hk/en/winnie-chow

You may have properly commenced and engaged in proceedings in Hong Kong where at the start, both Parties were living and working in Hong Kong, and the children were also studying in school here. However, Hong Kong can be a transient place; things change, especially upon the breakdown of a marriage/relationship. One Party may decide to relocate, sometimes followed by the other Party, with their children in tow.

You may be faced with a situation where you, your former spouse/partner and the children have all left Hong Kong, but the proceedings have not yet concluded.  Given these changes, Hong Kong is no longer the natural or most convenient forum to deal with the issues.  What do you do in such a situation?

Thankfully, there are professionals practicing in the family law field who are experienced with dealing with this type of situation.

Following the breakdown of a relationship, the resolutions that the Parties are encouraged to seek usually provide for the future, rather than to make reparations for the past. The Family Court takes into account that the Children’s habitual residence may change, valuations of assets go up and down, Parties may move from Hong Kong and the family’s needs will evolve as time passes. Our Courts are used to dealing with these changes and resolving matters based on the prevailing circumstances.

Therefore, depending on the circumstances of the Parties at a time when there are outstanding children or financial issues to be resolved, the Parties may seek to divide the proceedings and carve out some or all the outstanding issues from the proceedings in Hong Kong, so that the outstanding matters can be dealt with in the jurisdiction which is best placed to deal with them.  This could involve staying (suspending) the proceedings here in Hong Kong pending determination of the outstanding issues in the foreign jurisdiction, with the Hong Kong proceedings thereafter being brought to an end.  This process is called bifurcation.

In these circumstances, being alive to the current situation, the Court will consider, on balance, which is the natural and distinctively more appropriate jurisdiction (forum) to deal with the remaining dispute(s). If it is a children matter, it is the general practice, internationally, to accept the children’s place of habitual residence as the appropriate forum. If it is a financial matter, in determining this question the Court will look at the issues, such as where the assets are located, where the Parties reside, whether ongoing financial support would be required, and if so, based on the standard of living in which jurisdiction, or whether there is income earned overseas, and if foreign tax issues arise.  The Court will also consider whether there are relevant documents in a foreign language, requiring translation, and the complexity of the family assets, requiring foreign expert advice.

The bifurcation process will enable the Parties to resolve their disputes in the Court most naturally and appropriately placed to do so.  This means the family is not blindly held to the initiating Court if the circumstances legitimately warrant a change in forum. 

Winnie and Jain have respectively been involved in the two known bifurcation cases in Hong Kong.  If you are experiencing a similar situation, you may wish to contact the CRB team to see how we may be able to assist.

This publication is general in nature and is not intended to constitute legal advice.  You should seek professional advice before taking any action in relation to the matters dealt with above.