Judicious Encouragement in the Court of Final Appeal: Nothing New?
Hong Kong Law Journal (2013) Vol. 43 No. 2. 421-434
Posted: 9 Jul 2014
Date Written: August 30, 2013
The Court of Final Appeal in KEWS v NCHC had to decide whether an award of ancillary relief may be shaped so as to “judiciously encourage” third parties to use their resources to financially support the party “paying” the ancillary relief. The Court of Final Appeal decided that it can take third party resources into account if the previous extent and likely continuation of access to those resources can be satisfactorily determined. Moreover, the Court held this was a reiteration of past practice under the statutory discretion conferred by s 7(1)(a) of the Matrimonial Proceedings and Property Ordinance and not the development of a discrete principle of judicious encouragement. Nonetheless, a review of past precedents demonstrates that, whilst the court acted within the scope of its statutory discretion, an order so heavily reliant on third party assets deriving neither from a trust nor from a family company is not commonplace. As a consequence of the Court’s decision, intending spouses may in future place greater reliance on marital property agreements in an attempt to exclude third party resources from the Court’s consideration.
Keywords: Family law, divorce, ancillary relief, judicious encouragement
JEL Classification: K19, K10, K30
Suggested Citation: Suggested Citation