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Working in Hong Kong, an international hub blessed with vibrant domestic and expatriate communities, family law practitioners respond to manifold enquiries oft en driven by social and technological change and different cultural expectations. How is Hong Kong's family law evolving to meet the changing needs of this dynamic, multi-faceted community?
Whilst Hong Kong's family law has responded innovatively to some of the challenges brought in recent years, perhaps most notably the Court of Final Appeal's support in LKW v. DD for a move from needs-based ancillary relief to a starting point of equal division of matrimonial property, it is also true to say that change has sometimes been more cautious. For example, consider the very carefully drawn decision of the Court of Final Appeal in W v. Registrar of Marriages on the scope for marriage by a transsexual in their reassigned gender identity.
While earlier resistance to legal recognition of same-sex relationships, parental responsibility in lieu of parental authority, and children as rights-holders rather than the ‘property’ of parents, suggests a tension between a ‘traditional’, hetero-normative, hierarchical concept of family life and a more progressive vision of family life and family law, 2018 saw key developments challenging the dominance of a ‘traditional’ family law. Nonetheless, the question remains: is the pace of change so glacial that any impact is only illusory?
LIMITED LEGAL RECOGNITION OF SAME-SEX RELATIONSHIPS
In 2018, two sets of legal proceedings, each claiming legal recognition of same sex-relationships in relation to spousal benefits, travelled through the courts.
The first case, Leung Chun Kwong v. Secretary for the Civil Service, was an appeal and cross-appeal to the Court of Appeal (CA) from the judgment of the Court of First Instance (CFI). The applicant – a Senior Immigration Officer – employed by the Civil Service and a Hong Kong permanent resident, had legally married his same-sex partner in New Zealand in 2014. Back in Hong Kong, he subsequently claimed financial spousal benefits which were denied. He then sought a judicial review of the decisions against him. The CFI found in his favour in relation to the Secretary for Civil Service's refusal to extend spousal medical and dental benefits to his same-sex husband.