Parentage as a Prerequisite for Child Support Claims in Hong Kong

In Hong Kong, as a general rule, only parents may seek child support in Hong Kong, unless a guardian who has assumed legal guardianship is authorised to do so.

Parents seeking child support

Child support in Hong Kong is primarily governed by Sections 5 and 6 of the Matrimonial Proceedings and Property Ordinance (Cap. 192) (MPPO) and section 10 of the Guardianship of Minors Ordinance (Cap. 13) (GMO).

Under the MPPO, a “child” in matrimonial proceedings, including illegitimate and adopted children, must be related to at least one party to the marriage (Section 2 of MPPO). Accordingly, the court’s jurisdiction to make financial provision orders for a child of the family in matrimonial proceedings under Sections 5 and 6 is subject to proof of parentage.

The GMO governs the court’s jurisdiction over children in both matrimonial proceedings and guardianship matters. Section 10 of the GMO explicitly states that the court may make custody and maintenance orders upon application by either parent (Section 2 of GMO).

Guardian seeking child support

Upon the death of either parent, a guardian may apply to vary the existing order (Section 10(4) of GMO). Further, upon assuming guardianship, the guardian acquires parental rights and authority over the minor (Section 8G of the Parent and Child Ordinance (Cap. 429) (PCO)).

Where a parent of the minor is still alive, the court may, under Section 11 of the MPPO, make child support orders excluding the surviving parent if deemed appropriate. For example, the court may require the surviving parent to pay a lump sum or periodic payments to the guardian to meet the minor’s immediate needs.

Establishing Parentage in Hong Kong

Presumption of parentage

In Hong Kong, a man married to the mother of the child is presumed to be the legitimate father. This presumption may be rebutted by evidence showing that it is more likely than not that the man is not the father (Section 5 of PCO).

Registration at the Births Registry

If the parents are married when the child is born, either parent may register the birth at the Births Registry or online via the website of the Immigration Department. If the parents are unmarried, the parent may register the birth at the Births Registry in person. There is no requirement to register the information of the father in the register, but the father’s declaration may be required if his name is to be included in the register.

Application to court

If the parents are unmarried and the mother believes a particular man is the father, she may apply to the court for a declaration of paternity under Section 6 of PCO, supported by evidence such as the nature of their relationship and timing of conception.

Court order: taking of body samples

Where parentage is disputed in civil proceedings, the court may, on its own motion or upon application, order scientific testing or the taking of body samples to determine parentage (Section 13 of PCO).

Costs to be recovered

In Hong Kong parentage proceedings, the court may order the recovery of reasonable child-related costs, including legal fees and expenses for DNA testing or expert reports. Although the general rule is that each party bears their own costs in children matters, costs may be awarded if a party acts unreasonably or if it benefits the child’s welfare. This discretion is exercised carefully, prioritising the child’s best interests and access to justice. Relevant legislation includes the Rules of the District Court (Cap. 336H) and the MPPO.

Establishing Jurisdiction in Hong Kong

Unlike many jurisdictions where child support is determined by administrative agencies, it is decided exclusively by the Hong Kong courts. The Hong Kong courts have different jurisdictions under different ordinances. For example, where the court makes an order under Sections 5 and 6 of the MPPO, the court has jurisdiction to make orders for financial relief in the following circumstances.

• Either of the parties was domiciled in Hong Kong on the date of such application for leave or on the date on which the divorce took effect outside Hong Kong. To decide whether a party is domiciled in Hong Kong, the court exercises its discretion and considers factors including:
1. the length of residence;
2. the location of belongings and property;
3. where the children are educated; and
4. the party’s place of work.
• Either of the parties habitually lived in Hong Kong for three years immediately before the date of application or for three years immediately before the date on which the divorce took effect outside Hong Kong. In practice, where either party has resided in Hong Kong for a prolonged period of time, this ground is seldom relied upon as it may be easier to prove a substantial connection with Hong Kong.
• Either of the parties had a substantial connection with Hong Kong. The court applies a two-fold test to determine whether either party has established a substantial connection with Hong Kong. Firstly, it considers whether the party has any connection with Hong Kong; and, secondly, whether that connection is substantial. In making this assessment, the court takes into account all relevant circumstances, including:
1. the location of the parties’ matrimonial home;
2. their places of work; and
3. their residency status.

On the other hand, where the court’s order is in relation to Section 10 of the GMO, the court’s jurisdiction extends to parties who are not domiciled in Hong Kong (Section 26 of the GMO).

Determination of Child Support

The determination of child support is governed by Sections 5 and 6 of the MPPO. The court can make financial provision orders before or after granting the decree of divorce, and even if the matrimonial proceedings are dismissed after the beginning of the trial. Both interim and final orders for child support are subject to variation of the courts.

Under Sections 5 and 6 of the MPPO, the court may grant an order for periodical payments, security and/or lump sum payments to be made, and property to be transferred, from one party to the marriage to the other for the benefit of the child.

The overriding principle for the court’s assessment is reasonableness. The court considers all circumstances of the family, including but not limited to the child’s education and living expenses, and assesses the amount to be granted using a broad-brush approach. Section 7 of the MPPO lists a non-exclusive set of factors considered by the court, including the financial resources and financial needs of the child and the standard of living before the marriage breakdown.

It should be noted that the court considers there is no financial “clean break” concerning the raising of the children. Regardless of whether an existing order contains financial provisions, the parties may later apply for such provisions.

Moreover, the court will also regard the parent’s financial resources. The court must balance meeting the child’s needs without exceeding the reasonable affordability of the paying parent.

Term of Payment of Child Support

Under Section 10 of MPPO, the court would not make an order for financial provision for the child of the family if the child has attained the age of 18, and the term for such order shall not extend beyond the date the child attains the age of 18. However, if the court considers that the child will continue education or training, or if other special circumstances justify it, the court may make a financial provision order which extends beyond the child’s 18th birthday.

In any event, the obligation for a party to make periodical child support payments to another shall cease upon the date of his death, except where arrears are due under the order.

Child Support Is Not Taxable Income

In Hong Kong, child support payments are not treated as taxable income for the recipient and thus are exempt from salaries tax. These payments are considered a parental obligation rather than earnings. Conversely, the payer is not entitled to deduct child support payments for tax purposes. Nevertheless, individuals who financially support eligible children may claim child allowances under Section 31 of the Inland Revenue Ordinance (Cap. 112), which serve to reduce their taxable income. This arrangement preserves the non-taxable nature of child support while offering indirect tax relief to supporting parents through allowable deductions.

The Hong Kong Family Court does not require parties to set aside a part of their income for the specific purpose of child support. The court considers the parties’ and the child’s financial resources altogether. Any capital asset belonging to the parties, including inherited property and assets held outside the jurisdiction, may be taken into account.

Third-Party Assistance

The court may also take into account assets to which the parties are not legally entitled but may have access now or in the foreseeable future. In cases where third-party assistance, such as support from a wealthy family background, is available to a party, such assistance may also be factored into the court’s assessment. In these circumstances, the court would consider (i) the degree of financial assistance provided by the third party and (ii) the likelihood of continued provision of such assistance in the foreseeable future.

Divorce and child support proceedings usually run in parallel. Parties must file and exchange a Financial Statement (Form E). Form E requires disclosure of financial details, including:

• assets;
• liabilities;
• income;
• expenses;
• plans for the children’s education;
• current expenses; and
• the children’s pre-separation standard of living.

The court assesses the children’s financial needs and available resources accordingly.

See 1.2 Child Support Jurisdiction and Tribunal.

Types of Spousal Maintenance

Maintenance pending suit

Under Section 3 of MPPO, either party may apply for periodical payments to be paid by the other party from the period of the presentation of the divorce petition to the date of decree absolute.

Ancillary relief

Generally, there are two “streams” of claims for ancillary relief: “need case”, where the parties do not have enough assets to satisfy their financial needs; and “sharing case”, where the parties have enough assets to satisfy their financial needs. The court would first decide which of the above circumstances the family belongs to, then determine the order to be granted.

The court may grant an order for:

• secured or unsecured periodic payments;
• lump sum; or
• settlement or transfer of property.

For secured periodic payments, the paying party would be required to set aside part of their capital to be held in trust by trustees and utilised when maintenance payments are not paid. Orders for lump sum payments are more likely to be granted in sharing cases.

Duration of Order

The term of the periodical payment ordered shall not exceed:

• where the payments will not be secured, the joint lives of the parties to the agreement or a term ending with the remarriage of the party to whom the payments are to be made, whichever is the shorter; or
• where the payments will be secured, the life of the receiving party or a term ending with the remarriage of the receiving party, whichever is the shorter.

Determination of Spousal Maintenance

A non-exclusive list of factors considered by the court in granting spousal maintenance is listed in Section 7 of the MPPO. The court would also have regard to the receiving party’s reasonable needs against the paying party’s financial ability. (See also 1.3 Calculation of Child Support, Duration and Ancillary Relief.)

In sharing cases, the starting point of division of family assets is equal division, which would only be departed from if justified by the circumstances. Common circumstances where the yardstick of equality division is departed from include: (i) where assets were obtained by a party individually in a short marriage; and (ii) where a party’s earning capacity thrived at the sacrifice of another. The court enjoys a large discretion as to the weight to be given to each factor for the purpose of achieving a fair and reasonable division.

In summary, all capital assets owned by the parties, including inherited property and assets situated beyond the jurisdiction, shall be subject to consideration.

Future Earning Capacity

Not only would the court assess the property currently possessed by the parties, it would also consider the future earning capacity of the parties. For example, where a wife is of young age and the marriage is short, the court may order maintenance for a short period until she gets back into the workforce.

Non-Monetary Contribution

The court also takes non-monetary contributions into account. In cases involving stay-at-home wives, it often regards the husband’s financial contributions and the wife’s domestic work as equally significant.

Third-Party Assistance

The court may also take into account assets to which the parties are not legally entitled but may have access now or in the foreseeable future. In cases where third-party assistance, such as support from a wealthy family background, is available to a party, such assistance may also be factored into the court’s assessment. In these circumstances, the court would consider (i) the degree of financial assistance provided by the third party and (ii) the likelihood of continued provision of such assistance in the foreseeable future.

Discovery in Family Court Proceedings

Parties must file and exchange a Financial Statement (Form E) at least 28 days before the First Appointment Hearing. In Part 2 of Form E, the parties shall disclose their assets (including properties, bank accounts, shares in companies, business, Mandatory Provident Fund) and liabilities (including credit card, mortgage). Part 3 of Form E involves disclosure of the parties’ income. For the court to assess the financial needs of the parties, they are also required to disclose their monthly expenses in Part 4 of Form E.

If a party considers the Form E disclosure incomplete or insufficient, they may request further particulars via specific inquiries or questionnaires to clarify or supplement the information. Non-compliance or failure to provide full particulars can result in adverse inferences, costs orders or contempt sanctions. This ongoing exchange helps the court in accurately assessing each party’s financial position for maintenance and property decisions. Parties must update their Form E if significant changes occur during proceedings.

See 2.2 Calculation of Spousal Maintenance, Duration and Ancillary Relief.

Order for Payment of Money

The procedures of enforcement stipulated under the Rules of District Court (Cap. 336H) and Rules of High Court (Cap. 4A) are generally applicable on matrimonial proceedings. Upon the paying party’s default in complying with the order of payment, the paying party would become a judgment debtor and the receiving party a judgment creditor.

Judgment Summons

Where a party fails to comply with an order to pay maintenance, the judgment creditor may apply for a judgment summons to compel the debtor to appear in court for examination of their financial ability. Where the court decides that the judgment debtor has defaulted payment without reasonable excuse, the judgment creditor may then separately apply for a Committal Summons, with a possible result being imprisonment of the defaulting party. Given the severity of the possible result, application for Committal Summons shall be the last resort.

Charging Order

Similar to the enforcement of other monetary judgment debt, the judgment creditor may apply for a charging order for a charge on the judgment debtor’s property, with the effect of converting the judgment creditor into a secured creditor. Thereafter, the judgment creditor may apply for a separate order for sale of the charged property to repay the judgment debt.

Garnishee Order

Where a third party owes a debt to a defaulted judgment debtor, the judgment creditor may apply for a garnishee order to require such debtor to pay directly to the judgment creditor.

See 3.1 Enforcement of Child Support Orders.

Under Section 10 of MPPO, the child support obligor is usually required to pay for child support until the child attains the age of 18, but such obligation may be extended in the following circumstances:

• the child receives instruction at an educational establishment;
• the child undergoes training for a trade, profession or vocation; or
• special circumstances justify the order.

Further, the child support obligor may also be relieved of their obligation to make payment upon their earlier death. Any arrears due under the order as of the date of their death must still be settled by their estate, unless the maintenance agreement stipulates the continuation of payments following their death.

Moreover, the child support obligor can also apply for the court to vary, discharge or suspend the financial provision order, including that concerning provision of child support, under Section 11 of the MPPO. The obligor will usually have to show a significant change in circumstances, such as:

• unemployment;
• serious illness; and
• financial hardship.

Upon such application, the court would consider all the circumstances, including inflation, in adjusting the amount of maintenance to be paid.

However, it should be noted that orders concerning lump sum payments cannot be varied, even those to be paid in instalments (Section 11 of MPPO).

Currently, Hong Kong does not provide for any automatic administrative remedies.

See 3.1 Enforcement of Child Support Orders.

See 3.1 Enforcement of Child Support Orders.

Under normal circumstances, the obligation to pay secured periodical payment shall continue until the death of the payee, the remarriage of the payee or an earlier date specified by the court, whereas the obligation to pay unsecured periodical payment shall continue until the death of either party, the remarriage of the payee or an earlier date specified by the court.

Moreover, the obligor can also apply for the court to vary, discharge or suspend the financial provision order under Section 11 of the MPPO. The obligor will usually have to show a significant change in circumstances, such as:

• unemployment;
• serious illness; and
• financial hardship.

Upon such application, the court would consider all the circumstances, including inflation. The court may adjust the maintenance accordingly for the purpose of maintaining the spouse’s pre-divorce standard of living.

See 3.3 Other Relief in Child Support Orders.

See 3.1 Enforcement of Child Support Orders for the bases of modification.

Nuptial Agreements in Hong Kong

In Hong Kong, prenuptial and postnuptial agreements are not automatically legally binding but are accorded considerable weight by the courts where the parties have entered into such agreements voluntarily, and with independent legal advice and full disclosure of financial circumstances.

These agreements may be considered by the court in ancillary relief proceedings under the MPPO to determine the financial arrangements upon marriage breakdown. The terms of the agreement must be fair and should not result in manifest injustice or leave either party in financial hardship. There must be no evidence of coercion, fraud, misrepresentation or undue influence. Notwithstanding the existence of such an agreement, the court retains an overriding discretion to vary or set aside the terms if it would be inequitable to enforce them, particularly in light of the welfare of any children and the overall justice of the case.

Generally, the Hong Kong courts recognise and enforce foreign child support orders. Such enforcement is mainly regulated under the Maintenance Orders (Reciprocal Enforcement) Ordinance (Cap. 188) (MOREO), and more specifically under the Mainland Judgments in Matrimonial and Family Cases (Reciprocal Recognition and Enforcement) Ordinance (Cap. 639) (MJMFCO) for mainland judgments.

Enforcement Procedure of Foreign Child Support Orders (Excluding Mainland China Judgments)

Pursuant to the MOREO, foreign child support orders issued by courts in designated reciprocating jurisdictions may be recognised, registered and enforced in Hong Kong. A party entitled to maintenance may apply to the court for registration of the foreign maintenance order under Section 7 of MOREO. The court shall, upon satisfying itself that the order is valid and enforceable in the originating jurisdiction, register the order without refusing on grounds such as differences in legal procedures. Upon registration, the order shall have the same effect as a maintenance order made by the Hong Kong court and be enforceable accordingly under Section 9 of MOREO.

Note that only orders from jurisdictions designated under Section 3 of MOREO qualify for registration. For orders from non-designated jurisdictions, enforcement requires the initiation of fresh proceedings in Hong Kong courts.

Enforcement Procedure of Mainland China Child Support Orders

Pursuant to the MJMFCO, a party entitled to maintenance may apply to the District Court for registration of the Mainland order under Section 7(1). The order must be “effective” as defined in Section 5, namely enforceability in Mainland China and finality under Mainland law. A party may apply to register a Mainland judgment, subject to the following.

• The payment or act required under the order has not been fully made or performed by the application date.
• If the order specifies a due date, the registration must be filed within two years from that date, unless the District Court grants permission to apply after this period.
• Where no due date is specified, registration must occur within two years from when the judgment became effective, unless the District Court grants permission to apply after this period.
• For periodic payments or acts, registration is limited to defaults within two years prior to the application date, unless court permission is obtained for earlier defaults.

If the court is satisfied that the statutory requirements are met, it will then make a registration order under Section 10 of MJMFCO, upon which the Mainland order shall be treated as an order of the Hong Kong court. Registered orders may be enforced by standard Hong Kong enforcement mechanisms.

The registration may be set aside on grounds such as fraud or procedural irregularities, pursuant to Section 16 of MJMFCO.

See 5.1 Recognition of Foreign Child Support Orders.

See 3.1 Enforcement of Child Support Orders.

Hong Kong is not currently part of any international treaty or convention concerning child support or spousal maintenance.

However, Hong Kong’s arrangements with Mainland China have been implemented through the MJMFCO.

Variation of Registered Foreign Maintenance Order (Other Than Mainland China Child Support Orders)

Under Section 10 of the MOREO, the court has the power to vary or revoke a registered maintenance order, as if the order had originally been made by the court and it had jurisdiction to make it. However, the court shall not vary a registered order otherwise than by a provisional order unless one of the following conditions is met:

• both the payer and payee are currently residing in Hong Kong;
• the application is made by the payee; or
• the variation consists of a reduction in payments based solely on a change in the payer’s financial circumstances since the order was made or confirmed, and the courts of the reciprocating country do not have the power to confirm provisional variations.

Unless both the payer and payee are residing in Hong Kong, the court shall not revoke a registered order otherwise than by a provisional order. These requirements ensure respect for the jurisdiction and legal framework of the original issuing country while allowing practical variation in specified circumstances.

Variation procedure

An application for variation must be made to the Hong Kong District Court. The court may grant a provisional order varying the registered order, which must then be sent with authenticated evidence to the court in the reciprocating country that issued the original order. That court in the reciprocating country may confirm, with or without modification, or refuse to confirm the provisional order. The Hong Kong court would then confirm the order. Once confirmed, the provisional order has full effect as though originally made as a final order. If variation is made by other than provisional order and has been confirmed, the Registrar would register the order accordingly.

See 5.5 Modification of Foreign Child Support Orders.

Section 12 of MPPO provides that a payee would not be entitled to claim the arrears due under a child support order without the leave of the court, if such arrears are due more than 12 months before proceedings to enforce the payment of them are begun.

In addition, regarding judgment debts including debt under a child support order, Section 4 of the Limitation Ordinance sets a 12-year limitation period from the date the judgment became enforceable for bringing an action to enforce the judgment. Interest on judgment debts may only be recovered up to six years after it became due.

See 6.1 Judgments for Child Support.

Fees and Costs Orders in Initial Proceedings

In proceedings relating to children, including child support, the starting point in Hong Kong family courts is generally no order as to costs. The parties usually bear their own legal costs, including counsel fees, regardless of the outcome. However, the court has wide discretion to depart from this principle and make cost orders if circumstances justify, such as where a party has acted unreasonably or otherwise caused unnecessary delay or costs. When a costs order is made, it can include counsel fees payable by one party to the other.

Other Costs

Subject to the broad discretion of the court and the starting point of no order in child matters, the court may award other legal costs related to the proceedings on top of counsel fees. Costs awarded would typically cover reasonable legal fees and disbursements incurred by the successful party. The court would consider all circumstances, including:

• legal aid status;
• whether costs orders would reduce funds available for the child’s care; and
• the parties’ misconduct (if any).

Awards in Enforcement or Variation Proceedings

Subject to the broad discretion of the court and the starting point of no order in child matters, counsel fees and costs may be awarded in enforcement or variation proceedings concerning child support orders. Costs may be awarded if a party has behaved unreasonably or caused unnecessary or vexatious litigation, or if enforcement proceedings arise because of a party’s default or breach of the order. The court exercises discretion by balancing the interests of justice with the welfare of the child and fairness between the parties.

Fees and Costs Orders in Initial Proceedings

In spousal maintenance proceedings, the general principle is that the court has discretion to order costs, including counsel fees. The default starting position is usually that each party bears their own costs. The court may depart from this principle and order one party to pay the other’s legal costs if considered just and equitable, taking into account factors such as unreasonable conduct and failure to disclose. There is currently no specific statutory provision mandating costs orders in spousal maintenance cases, but the authority derives from the court’s inherent powers, the MPPO and case law.

Other Costs

Besides counsel fees, the court may award other legal costs reasonably incurred by a successful party under the general principle of costs in civil litigation. These may include solicitor’s fees and other expenses relating to the proceedings. The court would exercise its discretion, taking into account considerations of fairness, the parties’ means, and the interests of justice. There is sensitivity in family proceedings to ensure costs orders do not unduly prejudice the welfare of the parties or children involved.

Awards in Enforcement or Variation Proceedings

Counsel fees and other legal costs may be granted in enforcement or variation proceedings concerning spousal maintenance orders. The court exercises its discretion to make such awards, especially where a party has engaged in unnecessary litigation, failed to comply with payment obligations, or acted unreasonably or vexatiously. The purpose of awarding costs in these proceedings is to deter non-compliance and improper behaviour. Each case is assessed on its own merits, with the court considering the parties’ conduct, the reasonableness of their actions, and the effect on family members.