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Upon divorce the parties may agree on the maintenance to be given to the other party and the children. However, this cannot prevent either of them applying to the Court for an order to vary such agreement, although the court will be reluctant to do so if the agreement was freely arrived at and both parties have had legal advice.

A court order for maintenance after divorce can take several forms:-

Unsecured periodical payments. This orders the husband to pay from his likely future income. This is because, while the law treats men and women on a basis of equality, in practical terms, the husband is more likely to be able to pay. If the payer falls into arrears, the other party must ask the court to enforce payment of the arrears. The other party could also ask the court to attach the earnings / income of the payer provided that the other party honestly belief that there is no reasonable excuse for the default.

Secured periodical payments. This are more satisfactory. Usually, this is done by transferring certain assets of the payer to a trust. If the payer fails to keep up payments, the trustees can use the income or if necessary the capital of the trust to make up the payments.

Thirdly a lump sum, this could represent capitalized periodical payments and is more appropriate in Hong Kong. It is also advantageous to the payee in that it is not affected by a re-marriage and it gives a clean break to the parties.

Secured periodical payments will usually continue after the death of the payer. All periodical payments automatically cease on the re-marriage or death of the receiver. Moreover unsecured periodical payments cease on the death of the payer although the receiver may have a claim for reasonable provision from the payer's estate.

If the payer re-marries, there is no automatic determination of periodical payments but since the payer's financial circumstances are likely to be affected, he may apply to the court for variation of the original order, reducing or extinguishing the periodical payments.

For the court to decide on maintenance, each party must give full particulars of his or her income and capital. The court will take into account various factors in deciding how much the payee should receive. They are: resources, obligations, length of the marriage, age of the parties, and any disability, contributions to the welfare of the family, standard of living during marriage, and loss of any benefit. Only very bad conduct will disqualify someone from receiving periodical payments. Adultery alone is not sufficient but extreme violence probably would be.

If the need arises later, either party can apply for a variation of the order for periodical payments. In deciding whether a variation is justified, the court must take into account the same factors as when deciding the original order.

Date of amendment: 1st December 1998