HONG KONG SAR, CHINA Law and Practice Contributed by: Jeffrey Lee, Jessica Leung and Hilary Leung, Charles Russell Speechlys
2.3 Forced Heirship Laws Hong Kong does not have forced heirship laws. However, under the Inheritance (Provision for Fam - ily and Dependants) Ordinance, certain categories of persons (such as a spouse, children, and par - ents of the deceased who were being maintained by the deceased immediately before the death of the deceased) may apply to the court for an order, for example, to make periodic payments out of the net estate of the deceased to the applicant, on the grounds that the disposition of the deceased’s estate effected by their will or the law relating to intestacy – or the combination of such will and that law – is not such as to make reasonable financial provision for the applicant. Furthermore, if a person makes a gift or disposition for which the full valuable consideration was not given (eg, a contribution to a trust) within six years before their death and such gift or disposition was made with the intention of defeating an application for financial provision against their estate, the court may on appli - cation order the recipient (eg, the trustees of a trust) to provide such sum of money or other property for the purpose of the making of that financial provision. 2.4 Marital Property There is no matrimonial property regime in Hong Kong. Each spouse owns and administers the property they acquired both before and during the marriage, and they can freely transfer their property without the con - sent of the other spouse during the marriage. In the event of a divorce, the division of matrimonial property will be determined by common law principles of fairness and equality: when applying these princi - ples, the courts will look at what is fair and reasonable considering the unique circumstances of each case. Division of Assets In deciding how matrimonial assets are to be divided, Hong Kong courts will consider all the circumstances of a case, including the factors contained in Section 7 (1) of the Matrimonial Proceedings and Property Ordi - nance, as follows:
• the income, earning capacity, property and other financial resources that each of the parties to the marriage has or is likely to have in the foreseeable future; • the financial needs, obligations and responsibilities that each of the parties to the marriage has or is likely to have in the foreseeable future; • the standard of living enjoyed by the family before the breakdown of the marriage; • the age of each party to the marriage and the dura - tion of the marriage; • any physical or mental disability of either of the parties to the marriage; • the contributions made by each of the parties to the welfare of the family, including any contribution made by looking after the home or caring for the family; and • in the case of proceedings for divorce or nullity of marriage, the value to either of the parties to the marriage of any benefit (for example, a pension) that, by reason of the dissolution or annulment of the marriage, said party will lose the chance of acquiring. A five-step process guides all family judges on how to approach the above factors in exercising their dis - cretion: • step 1 – identify the parties’ assets; • step 2 – assess the parties’ financial needs; • step 3 – consider the sharing principle if assets exceed needs; • step 4 – consider whether there are good reasons to depart from equal division; and • step 5 – decide the outcome. The Court of Final Appeal further identified the fol - lowing four principles to be followed when deciding on each case: • objective of fairness; • rejection of any gender or role discrimination; • yardstick of equal division; and • rejection of minute retrospective investigation. Nuptial Agreements Prenuptial and postnuptial agreements are not binding on the courts of Hong Kong. However, in a 2014 case
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