The purpose of this article is to provide an overview of the operation of the Family Courts in Hong Kong from the perspective of a solicitor advocate who regularly represents clients without instructing counsels. Of the 11,687 solicitors with practising certificates, there are only 100 solicitor advocates and the writer is currently the only solicitor advocate specialising in family laws.
Being part of the District Court of Hong Kong, it is not a requirement for a litigant to be represented by a barrister, and a solicitor has a full right of audience in the Family Courts. Counsel are, however, frequently instructed owing to the value of the matrimonial assets and complicated issues such as trust arrangements.
Just as in other jurisdictions, marriage breakdown has been consistently on the rise in Hong Kong with divorce cases having increased from 17,774 cases in 2021 to 20,261 cases in 2023. There appears to be a drop in the number of divorce cases in 2024, with the total standing at around 11,500 as of 28 October 2024.
Family Courts currently comprise 15 judicial officers with eight Judges and seven Masters. Initially, only Judges can adjudicate family cases but with the introduction of the Masters’ system on 3 October 2023, Masters now handle preliminary hearings such as First/Children Appointments and other call-over hearings requiring directions. Masters’ jurisdiction is limited to pre-trial hearings and they can determine interlocutory applications such as interim maintenance and interim custody, care and control but their involvement usually ends after Financial/Children Dispute Resolution hearings.
Judicial officers in the Family Courts work very hard balancing full-time sitting with writing judgments. Even so, there is still a lengthy waiting period before cases are heard, mainly due to parties’ inability to reach early settlements.
A major change to the practice of the Family Courts is the gradual application of civil rules and procedures, which the Judiciary has been implementing in recent years. There is also an effort to consolidate different pieces of family legislations and rules to conform to civil practice and procedure. It however remains the case that there are essentially only a few ordinances and rules, making it relatively easier for practitioners to familiarise themselves. The use of Chinese in court proceedings is now becoming a norm.
The acrimony commonly seen in family disputes has rendered the practice of family laws sometimes fraught, as the main task of a family lawyer is to resolve deep-rooted differences between couples. It would not be unfair to say that family lawyers invariably end up "picking up the pieces".
All these factors have made it difficult to recruit family practitioners to join the Family Courts. Judicial officers joining the Family Courts tend to come from Tribunals such as Small Claims and Labour or the Magistrate Courts. Owing to the immense caseload, which is not made easy with the increasing number of litigants acting in person, there has not been much interest from family practitioners. The workload is so overwhelming that the Family Courts have been accepting experienced family laws specialists to sit as deputy judges to help out.
There are certainly advocacy training opportunities for solicitors as they appear in Family Courts more frequently than barristers, particularly in relation to pre-trial hearings. A family lawyer who intends to become a specialist should represent clients as an advocate as this allows them to observe the inquisitorial approach of Family Judges and how discretion (an important feature of family law) is exercised, a practical learning experience that cannot be acquired from simply reading judgments.
The major advantage of a solicitor advocate is their clear grasp of their client's case derived from daily case handling, which equips them with the ability to recall relevant or milestone events. Clients are attracted by their ability to deal with the same lawyer from preparing court documents at the start of the litigation through to advocating their position in court. This arrangement leads to costs savings since there are no additional fees for instructing counsel.
It cannot be denied that the trust and confidence clients have in their solicitors is intensive, as clients invariably count on their solicitors for emotional support during difficult times. It is not unheard of for a family solicitor to simultaneously assume the role of a counsellor.
Some high net worth clients may consider it vital to have a senior counsel advocating their case, often depending on whether there is senior counsel on the opposing legal team. It might be a matter of appearances, but clients sometimes find the idea of having a smaller legal team than the other side to be inadequate. Senior counsel bring invaluable expertise to the legal team since advocacy is an art which cannot be acquired through textbooks and judgments. It is therefore a good opportunity for aspiring solicitors to learn from the experts.
The practice of family law has been gaining greater importance in recent years, and with the increasing wealth of couples, it has attracted experienced barristers to join the practice. This has made it difficult for young lawyers to participate in ‘big money’ cases but it should not deter them from gaining experience in handling less substantial (but by no means less important) cases.
Wealth may well lead to complicated financial structures, but couples still face similar problems in resolving matters arising from their marriage breakdown – a prime example being the future care arrangement for their children. Cross-border marriages are also very common in our community, and extraterritorial enforcement of orders is always an issue in divorce cases.
Solicitors, through regular dealings with their clients, understand the problems they face. Consequently, they are better positioned to come up with pragmatic solutions when considering the appropriate mechanisms in implementing court orders. By also being their advocates, solicitors can offer a more comprehensive service to their clients, potentially leading to early settlements and avoiding costly and time-consuming litigation.
This article was published in HNW Divorce Magazine, Issue 19.