Q & A: Maintenance Payments

1. Divorce

2. Separation

3. Not divorced but the other party fails to provide financial support

If there is actual need, during the divorce application, you may apply to the court for maintenance while the proceeding is pending determination, that is, maintenance pending suit in case of divorce. At the same time, you may engage family mediation services at the above different stages to try to negotiate and reach a consensus on maintenance.

The Social Welfare Department will require an applicant to first seek maintenance from the ex-spouse, and consider applying for government assistance only if difficulties are encountered.

For the ex-spouse's application for maintenance, the application can only be made with the consent of the court. If the maintenance order has stated there is a "clean break" arrangement, you will not be able to claim maintenance from the other party in the future. As for the children, even if no request for child support is made to the other party before the divorce, the court will still deal with such application made in the future.

If the person receiving maintenance remarries, or either party dies, the maintenance payer is no longer required to pay.

Yes, if both parties cannot reach an agreement on maintenance and property distribution, they may apply to court for an order on maintenance and property distribution. If mediation fails and litigation is required, both parties must disclose to the court all the assets they own (including solely owned, jointly owned, Hong Kong and overseas properties) for the court's consideration.

If one party does not have enough assets and income to pay actual maintenance to the other party when the two parties are divorced, the court might issue a nominal maintenance order requiring one party to pay the other party a nominal maintenance of one dollar per year. The maintenance payee may retains the right to claim maintenance in the future. If the financial situation of the party paying maintenance improves in the future, the maintenance payee may apply to the court for variation of the maintenance order.

Spousal maintenance and property distribution do not include child maintenance. The court will separately award child maintenance until the child reaches the age of 18 or completes full-time education, whichever is the later, or until special circumstances arise justifying the court to make orders on ancillary relief.

You may first seek family mediation services to discuss and reach an agreement for varying the maintenance, and to apply to court for a variation order on the terms of the agreement. If the parties cannot reach an agreement, you may consider filing an application to the court, but the payee must provide sufficient justification. The court will consider granting a variation order having regard to all the circumstances of the case, including any changes in any matter, such as illness, disability, unemployment or increase in living expenses of the child, etc.

You may first seek family mediation services to discuss and agree for varying the maintenance, and apply to the court for a variation order on the terms of the agreement. If the parties cannot reach an agreement, you may consider filing an application to the court, but the payer must provide sufficient justification, as in the case of the previous paragraph.

1. Apply for a judgment summons requiring the payer to appear in court to explain

   1. If the court accepts the payer’s explanation, the maintenance order may be varied.

   2. If the court does not accept the payer's explanation, the court may sentence the payer to imprisonment, or while suspending the order of committal, order the payer to pay the amount owed. If he/she fails to comply, then may be sentenced to imprisonment.

2. Apply for an Attachment of Income Order requiring the payer's employer to pay the payee's maintenance direct from the payer's wages.

   1. The court may also consider requiring the payer to pay the interest on the arrears and/or the surcharge on the arrears. For details (including the conditions for applying for interest and surcharge, the method of calculation, relevant legal procedures and reasons for refusal to pay, etc.), please refer to the Home and Youth Affairs Bureau's webpage on "Interest and surcharge on arrears of maintenance".

3. Depending on the assets owned by the payer, the payee may also consider applying to the court to freeze the payer's bank account, or for a charging order on property etc.

Maintenance and child access arrangements should be dealt with separately. Both parents have the responsibility to provide for their children regardless of whether they have access to them. On the other hand, regardless of whether maintenance is paid or not, the parent living with the child should also allow the child to have reasonable chance to meet with the non-resident parent, so that the child can enjoy the love and care of the parents.