Due to the COVID-19 outbreak, the Hong Kong Courts were closed from 29 January 2020 to 4 May 2020 and thousands of court hearings were adjourned during this General Adjourned Period (“GAP”). Although the Family Court has now reopened there are social distancing measures in place which mean that hearings are continuing to be adjourned. We expect this to be the ‘new normal’ for some time to come.
Ongoing divorce proceedings
Divorcing couples are now facing an even longer waiting period before their cases will be heard by the Family Court due to the huge backlog of cases.
For court hearings that were due to take place during the GAP, they have been re-fixed and we are seeing a delay of around 3 to 4 months for short hearings and up to at least 6 months for trials. The rescheduling process is more complicated for substantive hearings and trials as it involves working around the diaries of the parties and their legal teams. A longer delay is expected if one of the parties is not available on the adjourned date assigned by the Court. There are also cases of adjournments being requested because it is not possible for a party to come to Hong Kong to attend a hearing due to ‘stay at home’ and quarantine restriction that are in place around the world.
This current situation is undesirable for children when their normal lives have already been disrupted due to the suspension of schools as a result of the COVID-19 outbreak. We are seeing an increase number of disputes between parents stemming from this unprecedented situation, for example: (i) one parent requiring the other parent to return a child to Hong Kong having travelled overseas in the early weeks of the outbreak in Hong Kong when the other parent believes it is preferable to stay overseas until it is safe to travel and (ii) disagreement between the parents on the children’s access schedule as the school suspension period is neither holiday time or school term time. Unfortunately, some of these disputes have resulted in urgent applications to Court which have raised tensions in what are already stressful circumstances.
Having the divorce proceedings prolonged will no doubt cast a detrimental effect on children.
The Covid-19 outbreak does not only affect couples already going through a separation or divorce process. People have been required to self-isolate and stay at home as a preventive measure to flatten the curve of the spread of the coronavirus. For couples who are having difficulties in their relationship, staying under the same roof for a long period of time will be an added pressure.
We might see a spike in divorce cases being filed in the coming weeks as the Family Court resumes service.
A possible solution is the use of the collaborative law process. Collaborative practice provides for a four-way meeting for the parties and their lawyers to work “collaboratively” and try to reach an agreement on the outstanding issues without resorting to the court.
Main features of the collaborative practice:
- Voluntary – The process is voluntary. All parties involved, including the collaborative lawyers, sign an agreement confirming that they agree to negotiate in good faith and try to reach an agreement that is mutually acceptable.
- Legal representation – Parties must be legally represented during the collaborative law process: they engage lawyers who are collaboratively trained for the purpose of settlement negotiations, i.e. their relationship with the collaborative lawyers terminates if the parties decided to litigate
- Experts – Parties can jointly engage experts (for example: a child psychologist on children related matters or a tax expert on financial matters) to provide their professional views to assist the parties in the negotiation process.
- Confidentiality – The process remains confidential among the participants. The parties also have a personal and confidential relationship with their respective legal representation.
- Amicability – Collaborative lawyers are trained to focus on having sensible, interest-based negotiations and assisting parties to reach an agreement without resorting to litigation. Collaborative law practice can avoid litigation driven by emotions and adversarial behaviours, therefore keeping the parties on speaking terms.
- Control – The parties are in control of the process and the pace of the negotiations in order to come up with a tailor-made solution to resolve their issues.
- Save time and costs – The process is efficient as it only involves working around the diary of the parties and the collaborative lawyers and not subject to the court schedule. The parties can avoid the court process which is costly, time-consuming, stressful and uncertain.
The advantage of collaborative practice is for couples to try to resolve the issues and reach an agreement at a meeting (or series of meetings) with the assistance of their lawyers. With everyone sitting in the same room, the parties can focus on the issues at hand and try to resolve them in a professional, practical and sensible way. It avoids the time and costs involved in solicitors’ correspondence and the preparation of court documents, and most importantly it helps to manage the emotions of the parties involved.
If the parties are able to reach an agreement, the lawyers will prepare the documentation which can be filed together with the divorce petition for the court’s approval, expediating the entire process and avoiding the requirement of the parties to attend court hearings. The process also has the benefit of avoiding a long and uncertain delay for the matter to be dealt with through the court.
The Hong Kong Collaborative Practice Group has written to the Hong Kong Judiciary in respect of collaborative practice in Hong Kong. There are about 70 lawyers in Hong Kong that are collaboratively trained.
The unprecedented situation of the Family Court having been closed for an extended period has put the spotlight on alternative disputes resolution options to address issues arising out of relationship breakdown. Collaborative practice should be considered by parties as an alternative process by which they can address matters swiftly and sensitively. Even before the COVID-19 outbreak, the Hong Kong Family Court was suffering under the burden of a heavy caseload and the current situation has exacerbated the problem. The use of collaborative practice can help fast track process and help carefully manage the emotional fallout at the end of a relationship.
More information about collaborative process is available on the International Academy of Collaborative Professionals website