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2 April 2019 | by LexisNexis Hong Kong
On 11 February 2019, three Practice Directions that cover various aspects of matrimonial proceedings came into effect, namely:
Practice Direction SL 10.1 concerns child arrangements cases that have been commenced or are pending in the Family Court or High Court, where issues on domestic violence have been raised. Adoption cases as well as applications made under the Child Abduction and Custody Ordinance (Cap 512) are expressly excluded from the guidance provided in this Practice Direction. In applicable cases, the relevant court must duly consider the issue of domestic violence whenever it is alleged, or when there is reason to believe, that a child of the family or a minor has been subjected to or exposed to domestic violence or where there is risk of such violence occurring in the future. If necessary, the court may give directions for a Fact Finding Hearing to be conducted as expeditiously as possible if there is sufficient prima facie evidence of domestic violence. The Practice Direction then provides further guidance as to the required contents of a courts’ direction of a Fact Finding Hearing as well as the course of action the court must take if domestic violence is found to have occurred.
Practice Direction SL 10.2 is a response to the Court of Appeal’s judgment in YBL v LWC  1 HKC 555, where it was held that Rule 87 of the Matrimonial Causes Rules was incompatible with Articles 10 and 11 of the Hong Kong Bill of Rights Ordinance. This Practice Direction indicates that the existing practice whereby the examination process and the committal process in a judgment are combined should cease. Instead, they should be treated as separate and distinct processes and applied for separately under separate procedures. In light of this distinction, the Practice Direction then provides guidance as to the respective procedures for the application of an examination summons and a committal summons.
Practice Direction SL 10.3 applies to consent orders on ancillary relief made under sections 4, 5, 6, 6A or 29AG of the Matrimonial Proceedings and Property Ordinance (Cap 192) where no error of the court is alleged. From the commencement process to case management considerations, this Practice Direction details the appropriate procedure to be followed when applying to set aside consent order on ancillary relief. As applications by way of a summons in existing proceedings is only available in limited circumstances, applications must be done by way of a fresh action either in the Court of First Instance or in the District Court if the case falls under its jurisdiction by virtue of Part IV of the District Court Ordinance (Cap 336).
For more information on family law, please see:
- Marriage Reform Ordinance (Cap 178)
- Marriage Ordinance (Cap 181)
- Married Persons Status Ordinance (Cap 182)
- Domestic and Cohabitation Relationships Violence Ordinance (Cap 189)
- Matrimonial Proceedings and Property Ordinance (Cap 192)
- Child Abduction and Custody Ordinance (Cap 512)
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