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Family Law and Matrimonial Practices Essay

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Updated: Apr 5th, 2022

Abstract

Family laws are laws that govern operations within the family. They consider the welfare and rights of children when parents divorce. These laws stipulate the actions, rights and responsibilities of parents concerning custody and access to children. Hong Kong has two laws that state what the courts should do when parents divorce, the family law and the joint parental model of action. These laws affect the issues of custody and parental access to children in the event of a divorce. The government of Hong Kong came up with the joint parental responsibility model to help improve the current provisions of child custody and access as stated in the family law.

Introduction

Every country has rules and ordinances that govern family practices. These similar laws extend to marital practices within the family. The regulations require members of the family, especially the parents, to behave in a manner that promotes care and child welfare. These laws consider the rights of parents towards children, and the rights of children towards parents, as stated in the parents and child ordinance (cap4) (LCR, 2005). They enable parents to carry out their duties accordingly, while at the same time ensuring that children receive proper care from their parents or guardians.

The rates of divorce in developed countries, such as the United States, the United Kingdom and Australia, prompted their respective jurisdiction to come up with laws that govern the rights and welfare of children in the event of a divorce. As research has indicated, the percentage of divorce in Hong Kong has been increasing since the 1990s. Lau (2014) states that this rise is yet to continue as many people have become aware of their individual and parental rights within the marriage. Consequently, the government of Hong Kong, just like in the developed countries, decided to come up with laws and regulations that govern the interest of children in the process of a divorce between the parents.

For a long time, Hon Kong relied on family laws, which look at the rights of children based on custody and access. The rules seem to award full custody to one parent, while the remaining non-custodial parent only has access to the child at given periods as stipulated by the court when passing custody rulings (LCR, 2005). According to family law, the custodial parent determines the rights and other aspects of the child’s life, while the non-custodial parent has no say on such an issue. As such, in 2005, the country came up with the joint parental responsibility model. This law aims at improving the nature of the family law and parental involvement in matters of raising children upon divorce. This paper, therefore, seeks to investigate the effects of the legislative implementation of the joint parental responsibility model with the family law.

The Family Law in Hong Kong

According to the LCR of Hong Kong (2005), the current family law only provides for child access and custody to one parent and ignores the existence of the other parent. The law does not take into account issues such as child welfare based on the involvement of the two parents. Parent and child ordinance cap 4 states that this law ignores the opinions of the children concerning their feeling on the involvement of the two parents in different areas of their lives (LCR, 2005). The existing decree also defines the relationship between the parent and the child based on authority and access. It means that only the parent, who has full custody of the child, has full access and total authority over them.

The remaining parent may have partial access to the child, but cannot exercise any authority on any matter affecting the child. Under this law, children do not have the right to state what they want when their parents go through a divorce. This case applies especially when the children are minors (The Children Act, 1989). Moreover, the court under the family law views such decrees as the best for the child’s welfare and interest. The court finds it better for the child to live with the custodial parent, especially in circumstances where the marriage ended on irreconcilable terms or harsh conditions.

The Joint Parental Responsibility Model

Under this new law, only one parent is granted full custody of the child. The remaining parent has access to the child at a stated time by the court. The time could be twice or thrice a week (Lau, 2014). However, the two parents have full authority and share full responsibilities on the matters that affect the child’s life. The non-custodial parent has the right to make important decisions that concern the daily life of the child, such as school, where they live, and the people the children should interact with (The Children Act, 1989). The parent without custody has the right to contribute fully to the financial needs of the child. He or she can participate in activities such as paying school fees, buying clothes and food and even taking the child on vacations, among other things.

According to this law, both parents continue to practice their rights and enjoy the responsibility of parenthood towards their children. They have unbiased access and authority towards the children (Hung, 2011). The children are able to interact with both parents as frequently as they want without restrictions from any one of the parents.

Hong Kong decided to come up with the joint parental responsibility model in 2005 with the aim of improving the standings in family law. Most people have thought of this law as a weapon for eradicating family law. However, the joint parental responsibility model aims at making the current law better.

How the Implementation of the Joint Parental Responsibility Will Improve Family Law in Hong Kong

The legislative incorporation of the two laws will enable the child to have uninterrupted relationships with his or her parents. Every society expects the child to grow up with both parents (The Children Act, 1989). Children who grow up with both parents, even if the parents do not stay together, acquire exemplary social and behavioral skills. Such children also end up being responsible members of society. Joint parental responsibility laws will enable the parents to continue to have close relationships with their children. Parents have the right to exercise full responsibility and parental care towards their children (LCR, 2005).

Availability of both parents, whether partial or in total, ensures that the child gets every need as she or he grows up. The law helps the custodial parent in providing for the needs of the child, especially in cases where the court granted full responsibility to a parent, who is not capable of providing for the child’s needs adequately (The Children Act, 1989). In this law, issues that affect the child and call for the notification of the other parent must take place in a court of law through legislation. Such problems could be extensive medical procedures or sending a child to a learning institution. This decision requires the consent of both parents. Each of the parents must be notified in such circumstances and the decisions reached by the court must occur through legislative means (The Children Act, 1989).

Many parents compete for residence and childcare after divorcing. The government of Hong Kong believed that by merging these two laws, such competitions would either end or reduce (Hung, 2011). Under the joint parental responsibility act, the non-custodial parent can be granted permission to spend a few days with the children. As such, competition over who stays with the child should diminish (LCR, 2005). This law has come up with a new set of orders that aim at replacing the current stringent measures towards the parents that do not have full responsibility for the child. These orders include contact, residential, prohibited steps and specific types of orders. They aim at replacing the existing custody and access law in the family law.

The new orders state that both parents have ease of access to the child, even though custody is upon one parent (Hung, 2011). The other parent can come and see the children at any time as long as the custodial parent is aware of the visit. In the family law, some parents are under restriction not to come within a given range to the children. The new law aims at reducing such restrictions, especially in circumstances where the said parent does not pose any danger to the child (LCR, 2005). However, upon realizing that the parent without custody is capable of harming the child, then the court is under obligation to uphold the restriction orders on the parent.

It is important to observe that the joint parental responsibility model, just like the family law act, seeks to maintain the interest and welfare of the children (The Children Act, 1989). This law, therefore, has a provision in which the child has the right to decide which parent he or she would like to stay with. However, a child is capable of making such a crucial decision only if they have attained the age of eighteen and over (LCR, 2005). The new law should enhance the current law by finding out how to enhance children’s rights further in case of violence from the custodial parent or the parent without custody. Studies have shown that, upon divorce, some parents normally take out their frustrations on children. Other parents also use children as bait to get to the other parent or make unnecessary demands (The Children Act, 1989).

Research done by Hung (2011) revealed that the current family law overwhelmingly ignored the opinions of non-custodial parents and those of children. As such, the government of Hong Kong hoped that the new law would enable the consideration of such factors. Under the joint parental responsibility, both children and parents with no custody will have a say and give their opinions concerning different areas of the divorce and residents, among other things. The law must also consider how the word custody is used in current family law and how it affects parental control and care (Hung, 2011).

According to family law in Hong Kong, custody is used to refer to the responsibility for a child. The law continues to be specific by using the term “sole custody” when deciding who gets to keep the children upon divorce. This term explicitly refers to one parent (father or mother) who gets to stay with the children in the event of a divorce (Hung, 2011). In this case, the parent, who gets full custody of the child, also has the total responsibility for the children. As such, the other parent only has a few rights to the children. It was hoped, therefore, that the involvement of the joint parental responsibility model would change how custody and access to children are considered by divorced parents.

The government of Hong Kong also hoped that the legislation and incorporation of the new model would enable lawmakers to deal effectively with issues affecting the family, such as divorce, separation, parent, and child welfare (The Children Act, 1989). They believed that this law would make it possible to deal with divorce issues appropriately by enabling each parent to exercise full rights over children. Children also get the ability to state their feelings and view concerning custody and the parent to stay with as long as they are above eighteen years. The purpose of the new law aspired to make children safe from hostile parents after divorce (LCR, 2005). The joint responsibility nature endeavored to ensure that children continue to live the life they are used to without lacking any provision due to the end of the marriage between their parents.

Conclusion

The rate of divorce in Hong Kong has significantly increased over the years. Research has shown that during a divorce, the most affected parties are normally the children because the minor do not seem to understand why their parents have to split up. Some parents also use their children as tools for getting back at one another when their marriage ends. Hong Kong came up with laws that would allow both parents to take full responsibility for their children.

Such laws, however, can only grant full custody to one parent. The joint parental responsibility model came into force in order to help supplement the existing family law. This model made it possible for both parents to carry out their total parental rights. In this law, the children have the right to decide whom they want to stay with after the divorce. The decree also provided other sections that help the courts to protect children from abusive parents. In totality, the law seeks to uphold children’s rights and welfare.

References

Hung, L. (2011). Views on JPR legislative reform proposal: from the perspective of child’s welfare and rights. Invited speech in “Seminar on the Joint Parental Responsibility Model” organized by the Hong Kong Council of Social Welfare on 2012.

Lau, Y. (2014). The debate over the joint parental responsibility model in Hong Kong. Web.

Law Reform Commission’s Report (LCR), Hong Kong. (2005). Web.

The Children Act (1989). . Web.

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