Financial Provision For Children Born Out Of Wedlock

In light of the increasing number of unmarried parents in Hong Kong, there has been increasing discussion about the financial provision available to children born out of wedlock. It is well established that children of married parents are entitled to the financial provisions set out in sections 4-6 of the Matrimonial Proceedings and Property Ordinance (Cap. 192) ("MPPO"), which include orders for periodical payments, lump sum payments, transfer of property and settlement of property.

Four years ago, the Court of Appeal decision in IDC v SSA [2014] 4 HKLRD 220 confirmed that the financial provision available in Hong Kong are the same for all children, regardless of whether their parents are married or not.

We shall consider the Family Court and the Court of Appeal's interpretation of sections 10(2)(a) and 10(2)(e) of the Guardianship of Minors Ordinance (Cap. 13) ("GMO") in the applications for lump sum payment and settlement of property orders in IDC v SSA and in the cases of CCMJ v. SSM formerly known as SKL (FCMP 67/2010) and CWYW v CCH (FCMP 124/2013) that follow.

IDC v SSA - Family Court decision (Judgment date: 22 January 2013)

By way of background, the Mother and the Father were not married, and had cohabited since October 2006 together with the Mother's son ("N") born out of her previous marriage. Their daughter ("Z") was born on 8 March 2009. The couple's relationship subsequently broke down and they separated in 2010. The Father continued to pay child maintenance for Z, as well as Z's educational expenses and rent for the Mother and Z's accommodation.

The Mother subsequently made an application, amongst other things, for a lump sum order under section 10(2)(a) of the GMO for the purchase of a property for Z. The Mother's application for a lump sum order was on the basis that accommodation is an "immediate and non-recurring" need. The Mother asked for HK$32 million to purchase a property. Alternatively, she sought an order that a property be purchased on trust for Z during her minority with a reversionary interest to the Father under section 10(2)(e) of the GMO.

The Mother's application was dismissed by His Honour Judge Bruno Chan of the Family Court as he held that the Court had no jurisdiction to make a lump sum order for such purpose.

The Mother appealed against the Court's finding that it had no jurisdiction to make a lump sum order or settlement of property order for the purchase of a property for Z.

IDC v SSA - Court of Appeal decision (Judgment date: 6 June 2014)

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