- Claiming “HK$1” maintenance protects a wife’s, or the other spouse’s, right to claim maintenance later.
- Child maintenance generally has to be paid until the child turns 18 or finishes their studies, whichever is later.
- The recipient can only recover maintenance unpaid in the last 12 months. Beyond that, the court’s permission is required.
- The recipient can consider a judgment summons, an attachment of income order and an order preventing departure from Hong Kong, to force the spouse to comply with the court order for maintenance.
If the other side refuses or fails to pay maintenance, the recipient can apply to the Family Court for recovery and force them to comply with the court order for maintenance.
This article explains symbolic “HK$1” maintenance, changing and adjusting the amount of maintenance, the time limit for recovering maintenance, and the consequences of unpaid maintenance.
Why “HK$1” token maintenance matters
“HK$1” maintenance is only symbolic and is not really paid, but its benefit is that it protects a wife’s, or the other spouse’s, right to claim maintenance later.
When a couple go through divorce, maintenance is often a sensitive and complicated issue that easily leads to unnecessary disputes.
In some cases, a wife may think she has enough money to cover her basic living costs, and decide not to claim maintenance from the other side.
Please note
- That decision may affect her right to claim maintenance again in future, because if she did not claim it from the other side, she may face difficulties when she tries to claim later.
To protect the wife’s or both spouses’ right to claim maintenance later, her divorce solicitor should advise claiming “HK$1” maintenance from the other side.
If the wife, or the other spouse, needs to claim maintenance again later, she can apply to the court to vary the “HK$1” maintenance order and claim actual maintenance from the other side.
Not sure whether to claim “HK$1” maintenance?
Feel free to check your situation with us.
Changing child maintenance: how long it is paid
A court order usually requires both parents to pay child maintenance until the child turns 18 or finishes their studies, whichever is later.
Child maintenance is usually paid monthly. Parents can agree on it after the divorce; if they cannot agree, either can apply to the court.
Once it has been set, whether agreed by both parents or decided by the court, the monthly amount can be adjusted to fit the circumstances, for example:
- The child goes to university or studies abroad
- The paying parent’s finances change
If the children are young at the time of the divorce, adjusting child maintenance is hard to avoid. It may lead to disagreement over the amount between the parents and even to court action.
To avoid this, the way to deal with it is to include terms in the maintenance order, such as:
- Adjusting maintenance automatically in line with the inflation rate published by the government each year
- A term saying that when the fees charged by the child’s school go up, maintenance goes up automatically by a corresponding amount
Both parents need to handle child maintenance properly, so that the child’s living and study needs are secured. A solicitor can also help and advise if needed.
Applying to adjust the amount of maintenance
To avoid the need to apply to the court regularly for adjustment, the spouses can agree in advance that maintenance rises each year in line with an inflation index or a set percentage.
After a divorce, either spouse’s life or finances may change, which may affect maintenance, for example:
- The husband remarries and takes on new family responsibilities
- Being unable to work because of illness
- Long-term unemployment
Any of these may mean he cannot pay the original maintenance.
Such an agreement can effectively reduce disputes over maintenance, and make sure maintenance rises in line with inflation.
Please note
- If maintenance does not keep pace with inflation, its real value may fall, and the children’s quality of life may even decline.
The look-back period for recovering maintenance, and how long maintenance lasts
There is a time limit on recovering maintenance: the recipient can only recover arrears from the last 12 months.
If the paying spouse falls behind, the recipient can apply to the Family Court to recover the arrears.
If arrears are more than 12 months old, the court’s permission is needed before the recipient can pursue the payer.
Please note
- Under section 12 of the Matrimonial Proceedings and Property Ordinance (Cap. 192), if arrears are more than 12 months overdue when enforcement proceedings begin, no one may enforce payment of them through the court without the court’s permission.
The court may grant or refuse permission, and may also remit all or part of the arrears.
Although Hong Kong law provides that arrears of maintenance carry interest and surcharges, the recipient should still apply to the Family Court as soon as possible to enforce payment, to protect their rights.
Recipients must keep the time limit for recovery in mind and apply to the court promptly.
How long has your maintenance been overdue?
Contact us to go through your arrears and the look-back period.
Consequences of unpaid maintenance: how can you recover it?
If the other side refuses or fails to pay maintenance, the court can summon the payer to explain their finances, why they have not paid, and their ability to clear the arrears.
Without a good reason, the court can make a new order for payment or send them to prison.
You can consider these ways to force your spouse to comply with the court order for maintenance:
- Judgment summons
- Attachment of income order
- Order preventing departure from Hong Kong
Judgment summons
You can apply to the court for a judgment summons. The court can summon your spouse to appear in court and explain their finances and their ability to clear the arrears.
If your spouse fails to pay without good reason, the court has power under rule 87 of the Matrimonial Causes Rules (Cap. 179A) to make a new order for payment or commit them to prison.
Please note
- Do not hesitate to recover arrears. If the arrears were more than 12 months overdue when the enforcement proceedings began, the court may refuse to enforce the payment order.
- If your spouse repeatedly fails to attend hearings, the court may also commit them to prison in their absence; but if the payer pays the arrears or makes arrangements, the prison order can be suspended.
Attachment of income order
Under section 28 of the Matrimonial Proceedings and Property Ordinance (Cap. 192), where the court has made a maintenance order against a payer, and:
- the court is satisfied that the payer has, without reasonable excuse, failed to pay any sum required by the maintenance order; or
- the court has reasonable grounds to believe the payer will not pay on time and in full as the maintenance order requires; or
- the payer and the named recipient both agree to an order being made under this section; and
- some of the payer’s income can be attached.
then the court may order that an amount from the payer’s income, equal to all or part of the sum the order requires, be attached.
The attached amount is paid to the named recipient by the payer’s source of income (such as their employer).
Before making this deduction, however, the payer may keep a certain amount for reasonable living expenses.
Order preventing departure from Hong Kong
You can also apply to the court, without notice to your spouse (ex parte), for an order stopping your spouse from leaving Hong Kong until the debt is recovered.
If the order is granted, it is served on the Director of Immigration of Hong Kong, and if your spouse tries to leave Hong Kong, they will be refused exit.
Please note
- If your spouse often has to travel abroad, this is very effective, because it causes them considerable inconvenience.
- The court may be reluctant to restrict anyone’s freedom this way, so you should apply for this order only when other methods of enforcement have failed or do not apply.
Can a husband claim maintenance, and how is child maintenance assessed?
A husband can claim maintenance from his wife: when spouses apply for divorce or separation, both have the same right to maintenance.
Usually the husband supports the wife, but Hong Kong law makes no distinction: if the wife can afford it, she also bears the responsibility.
It is true that in practice it is less common for a husband to claim money from his wife.
How is child maintenance assessed?
Child maintenance is generally assessed on two main categories:
- The type of child maintenance claim
- The upper age limit for child maintenance
The type of child maintenance claim
The parent who has custody of the child is entitled, in the case, to claim financial support for the child from the other parent.
In maintenance matters, the applicant can ask the court for interim maintenance before the proceedings end.
After a petition for divorce or separation and an application for interim maintenance are made, the court can make interim financial orders for the children, for example:
- Periodical payments
- Secured periodical payments
- Lump sum
The court can also make other orders at different stages of the proceedings, including:
- When or after a decree nisi of divorce is made
- During proceedings about the guardianship of a minor
- During custody proceedings
The upper age limit for child maintenance
Under section 10 of the Matrimonial Proceedings and Property Ordinance (Cap. 192), the court can make orders for children under 18, such as periodical payments, secured periodical payments and lump sums.
The Ordinance further provides that, in the following cases, payments under an existing order can continue beyond age 18:
- The child is, or will be, in an educational establishment
- or is receiving some kind of training
- or there are special circumstances that the court considers appropriate (for example, the child has a disability)
Not sure how child maintenance is assessed?
Get in touch about your child maintenance arrangements.
