My Court Experience on a Divorce Case

Read my article on LinkedIn.


Last summer, before starting the PCLL, I spent one month with Ravenscroft & Schmierer, a full-service law firm in Hong Kong, and had the chance to witness an international divorce case. Assisting the lawyers and our client with the case and attending court was a valuable experience that taught me much more than just the law and procedures.


Making my way to court from the office in Sai Ying Pun.


A ''picture-perfect'' family


When they first met, they were both working in Hong Kong — a Swiss man and a Canadian lady*, exploring the metropolitan city together. They had a beautiful marriage with two adorable sons, a healthy income and both were successful in their own professional work environment — the quintessential ‘picture-perfect’ family.


But just like many newlyweds, they wanted to grow their family and were desperately trying to conceive a child, the reasoning of why the wife went on to receive medical treatment. Soon enough, they had their first ‘miracle’ son and three years later their second son came along. The wife then quit her well-paid job to become a stay-at-home mom and focus on raising both kids. Accordingly, the father became the sole ‘breadwinner’ for the family.


16 years went by and the marriage gradually went downhill, as the husband had an affair which left the wife distraught. They were constantly arguing, realising that they were no longer happy together and finally decided to get a divorce. This commenced divorce proceedings, leading to deal with issues on child custody and the division of financial assets (ancillary relief).


I witnessed, for the first time, a party representing themselves as a litigant in person in court, as the wife did not hire a lawyer.

Self-representation comes with risks


On the day I went to court to meet the couple for the first time, I was mainly tasked with observation. I observed the way the petitioner and the respondent presented themselves, how the barrister interacted with our client and the solicitor’s role to figure out a solution in favour of our client’s situation.


Having previously been to court several times, I witnessed, for the first time, a party representing themselves as a litigant in person in court, as the wife did not hire a lawyer. No doubt, it saves costs. However, if I were in her position, with limited legal knowledge and experience — to advocate in court on my own behalf, I would likely get nervous and become particularly defensive under such an intense pressure.


Therefore, the ability of the judge to remain calm and collected under such context is imperative for the case. Initially, I expected the detailed facts of the case and the evidence garnered as the most integral part of the case. However, I soon realised there was more importance for the lawyers and judges to bring objectivity to the table and prevent the client’s emotions from getting in the way.


In the trial, we first started with presenting evidence for the ancillary relief (see above), where the judge would allow any necessary updates or clarifications before parties to cross examine the evidence.


‘You graduated from The University of Toronto, is that right?’ the judge questioned the wife. A series of questions followed regarding the case as well as their upbringing, finances, and family history etc. ‘Was the prenuptial agreement torn up during an argument?’, ‘Do you have other relatives residing in Canada?’ The wife then correspondingly either agreed to the questions or made clarifications when necessary. These questions helped the judge paint a clearer picture about the circumstances the family is currently in and the implications on granting a relief.


An introductory video to my time as a Trainee Solicitor.


Children’s interests have the highest priority


In considerations of divorce proceedings, the judge will put the children’s interests as the highest priority. The judge questioned the wife about her living situation as well as her career plans upon relocating back to Canada. However, she had not given much thought on securing a job there yet. All she had considered at the time was her children’s education there. The judge was not satisfied with her answer and the lack of thoroughness in her overall considerations. She questioned, ‘If you have no plans, how would I want or allow the kids to fly back to Canada with you?! Raising children requires a lot of money, so how would I know if it would be in their best interest to go to Canada with the mother?!’


The judge then emphasised that it was not sufficient just to have plans for their children. Since they rely on parents both emotionally and financially, it is even more important for the mother to have plans for herself too. This, I believed, was a fair point -- if the mother had no intention of finding a job anytime soon, how could she ensure financial stability and maintain a certain standard of living for the restructured family? I turned to the wife, who looked helpless and frustrated.


‘Why are you buying things and living a lifestyle that you clearly can’t afford?!

‘Don’t tell me I can’t afford it!’


‘Don’t look at me like that, I don’t know if you will be the winner of this case at the end of this.’ The judge said. ‘Why are you buying things and living a lifestyle that you clearly can’t afford?!


My initial thought was – that was harsh -, but prolonging that thought, it is only reasonable as she needed to set aside her emotions and remain objective in dealing with the case. The wife responded immediately, shouting, ‘don’t tell me that I can’t afford it!’ and broke down in tears. The trial then was adjourned for 15 minutes for her to recuperate.


This ties back to the issue of self-representing in court, where under such intense pressure, people tend to lose their composure easily, and are likely to throw a fit and make emotional arguments. This can be hindering the effectiveness of court proceedings.


During the open offer, both parties got emotional, which is not foreign to divorce cases, as both were adamant in reserving their financial situation. One party was asking to recover most assets while the other was insisting on keeping their assets.


Settlements and mediation are encouraged


Throughout the entire process, I was able to tell that both parents were very doting towards their sons and wish the best for them and want to provide the best possible living standards for them.


The former couple ended up settling over a sum which the husband would transfer to the wife for relocation fees when she moves back to Canada. Moreover, they agreed to split the value of their properties in Canada as well as their matrimonial home in Hong Kong. Regarding childcare expenses, the husband was very eager to pay for their son’s education and extra-curricular activities.


*Personal details have been changed to maintain confidentiality.


 

Kelly Leung is a trainee solicitor at Ravenscroft & Schmierer. She completed a summer internship with the firm in 2021, and represented Ravenscroft & Schmierer as a Campus Ambassador at HKU (The University of Hong Kong) during the academic year 2021/22. She graduated with an LLB (Bachelor of Laws) from the University of Birmingham in the United Kingdom and a PCLL (Postgraduate Certificate in Laws) from HKU.