SEPARATION AND MAINTENANCE ORDERS ORDINANCE

SEPARATION AND MAINTENANCE ORDERS ORDINANCE

LAWS OF HONG KONG

SEPARATION AND MAINTENANCE ORDERS
ORDINANCE

CHAPTER 16





CHAPTER 16

SEPARATION AND MAINTENANCE ORDERS ORDINANCE

ARRANGEMENT OF SECTIONS

Section Page
1. Short title ... ... ... ... ... ... ... ... ... ... ... ... ... ... 2
2. Interpretation. ... ... ... ... ... ... ... ... ... ... ... ... ... 2
3. Grounds on which married woman may apply ... ... ... ... ... ... ... 2
4. Grounds on which husband may apply ... ... ... ... ... ... ... ... ... 3
5. Powers of District Court ... ... ... ... ... ... ... .. ... ... ... 3
6. Limitation of powers of District Court ... ... ... . ... ... ... ... 4
6A. Condonation ... ... ... ... ... ... ... ... ... ... 4
7. District Court may vary or discharge order ... ... ...... ... ... ... 4
8. District Court may refuse an order in cases more fit for the High Court .. 5

9. Power to order interim payments where application for maintenance is adjourned
... ... ... ... ... ... ... ... ... ... ... ... ... ... ... 6

10. Notice of change of address ... ... ... ... ... ... ... ... ... ... ... 6
11. Procedure ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... 6
12. Continuation of payments in certain cases ... ... ... ... ... ... ... ... 6





CHAPTER 16

SEPARATION AND MAINTENANCE ORDERS

To make better provision in the Colony for the granting by the District

Court of separation and maintenance orders.

(Amended, 35 of 1969, Schedule)

[6 December 1935.1

1. This Ordinance may be cited as the Separation and

Maintenance Orders Ordinance.

2. In this Ordinance, unless the context otherwise requires'habitual
drunkard' and 'drug addict' mean a person who is, by

reason of habitual intemperate drinking of intoxicating liquor, or
habitual taking or using, except upon and in accordance with
medical advice, of opium, or any dangerous drug within the
meaning of the Dangerous Drugs Ordinance, at times dangerous to
himself or herself or to others, or incapable of managing himself or
herself, and his or her affairs;

'husband' means the husband or partner of a wife or married

woman;

'wife' and 'married woman' mean the wife or partner of a man

by-

(a)a marriage celebrated or contracted in accordance with the
provisions of the Marriage Ordinance;

(b)a modern marriage validated by the Marriage Reform
Ordinance;

(c)a customary marriage declared to be valid by the Marriage
Reform Ordinance;

(d)a union of concubinage as defined by section 14 of the
Legitimacy Ordinance;

(e)a kim flu marriage entered in accordance with Chinese law and
custom applicable thereto in Hong Kong before the appointed
day under the Marriage Reform Ordinance; or

(f)a marriage celebrated or contracted outside Hong Kong in
accordance with the law in force at the time and in the place
where the marriage was performed.

(Amended, 28 of 1971, s. 19)
3. (1) Every married woman whose husband-

(a)has been convicted summarily of an assault upon her which in
the opinion of the convicting magistrate is of an aggravated
character; (Amended, 15 of 1962, s. 2)

(b)has been convicted upon indictment of an assault upon her,
and sentenced to pay a fine of more than $100 or to a term of
imprisonment exceeding 2 months;





(c) has deserted her;

(d) has been guilty of persistent cruelty to her or her children;

(e)has been guilty of wilful neglect to provide reasonable
maintenance for her or reasonable maintenance and education
for her infant children whom he is legally liable to maintain;
(Amended, 63 of 1986, s. 2)

(f)has, while suffering from a venereal disease, and knowing that
he was so suffering, insisted on having sexual intercourse with
her;

(g)has compelled her to submit herself to prostitution;

(h)is a habitual drunkard, or a drug addict,

may apply to the District Court for an order under this Ordinance.

(2) Where the husband has, in the opinion of the District Court,
been guilty of such conduct as was likely to result and has resulted in
her submitting herself to prostitution, he shall, for the purposes of this
section, be deemed to have compelled her so to submit herself.

(Amended, 35 of 1969, Schedule)

4. The husband of every married woman who-

(a)has been guilty of persistent cruelty to his children;

(b)is a habitual drunkard or a drmay apply to the District Court for an order under this Ordinance.
(Amended, 35 of 1969, Schedule)

5. On any application under section 3 or 4, the District Court may
make one or more orders containing all or any of the following
provisions

(a)that the applicant be no longer bound to cohabit with her
husband, or, as the case may be, that the applicant be no
longer bound to cohabit with his wife (which provision while
in force shall have the effect of a decree of judicial separation
on the ground of cruelty);

(b)that the legal custody of any children of the marriage be
committed to the husband, or to his wife;

(c)that the husband shall pay to his wife, or to the Registrar of
the District Court or any third person on her behalf, such lump
sum (whether in one amount or by instalments) or periodical
payments or both as the District Court having regard to the
means both of the husband and his wife considers reasonable,
and an order under this paragraph for the payment of a lump
sum may be made for the purpose of enabling any liabilities or
expenses reasonably incurred in maintaining the wife before
the making of the order to be met; (Amended, 42 of 1948, s. 2;
23 of 1968, s. 3 and 63 of 1986, s. 3)





(d)that the husband shall pay to his wife, or to the Registrar of the
District Court or any third person on her behalf, such lump sum
(whether in one amount or by instalments) or periodical
payments or both as the District Court considers reasonable
having regard to the means both of the husband and his wife
for the maintenance and education of each child of the marriage
committed to her custody under paragraph (b) until such child
attains the age of 16 years:

Provided that an order directing a lump sum payment
shall only be made for the purpose of providing for the
immediate and non-recurring needs of each child, or for the
purpose of enabling any liabilities or expenses reasonably
incurred in maintaining or educating each such child before
the making of the order to be met, or for both such purposes;
(Amended, 42 of 1948, s. 2; 23 of 1968, s. 3,. 15 of 1977, s. 2 and
63 of 1986, s. 3)

(e)a provision for payment by the husband or his wife, or both of
them, of such reasonable costs of the parties or either of them
as the District Court may think fit.

(Amended, 35 of 1969, Schedule)

6. (1) No order shall be made under this Ordinance if it is proved
that the applicant has committed an act of adultery:

Provided that the husband or, as the case may be, the wife, of the
applicant has not condoned, or connived at, or by his or her wilful
neglect or misconduct conduced to such act of adultery.

(2) No order made under this Ordinance shall be enforceable and no
liability shall accrue under any such order whilst the married woman,
and her husband, with respect to whom the order was made, reside
together, and any such order shall cease to have effect if for a period of
3 months after it is made the married woman and her husband continue
to reside together.

6A. For the purposes of this Ordinance, adultery and cruelty shall
not be deemed to have been condoned by reason only of a continuation
or resumption of cohabitation between the parties for one period not
exceeding 3 months, or of any thing done during such cohabitation, if it
is proved that cohabitation has continued or resumed, as the case may
be, with a view to effecting a reconciliation. (Added, 33 of 1972, s. 25)

7. (1) The District Court may on the application of the married
woman or her husband, and upon cause being shown on fresh evidence
at any time alter, vary, discharge, suspend or revive after being so
suspended any order (other than an order for a lump sum payment in
one amount or for a lump sum to be paid in instalments where all such
instalments have been paid) made under this Ordinance, and may from
time to time increase or diminish the amount of any unpaid instalment of
a lump sum payment or periodical payment or both ordered to be paid
under section 5. (Amended, 35 of 1969, Schedule and 63 of 1986, s. 4)





(1A) The jurisdiction conferred upon the court by subsection (1)
shall be exercisable notwithstanding that the proceedings for the
revocation, variation, discharge or suspension of the order or the revival
of an order which has been suspended are brought by or against a
person residing outside Hong Kong. (Added, 15 of 1977, s. 3. Amended, 63
of 1986, s. 4)

(2) If any person who has applied for an order and with respect to
whom an order has been made under this Ordinance voluntarily resumes
cohabitation with her husband or, as the case may be, with his wife, or
commits an act of adultery, such order shall upon proof thereof be
discharged:

Provided that if the order was made on the application of a married
woman, the District Court may, if it thinks fit

(a)refuse to discharge the order if in its opinion such act of
adultery as aforesaid was conduced to by the failure of the
husband to make such payments as in the opinion of the
District Court he was able to make under the order; and

(b)in the event of the order being discharged, make a new order
that the legal custody of the children of the marriage shall
continue to be committed to the wife, and that the husband
shall pay to the wife or to the Registrar of the District Court or
any third person on her behalf one or both of the following

(i) such lump sum (whether in one amount or by instal-
ments) for the immediate and non-recurring needs of the child,
or for the purpose of enabling any liabilities or expenses
reasonably incurred in maintaining and educating the child
before the making of the order to be met, or for both, as the
District Court considers reasonable having regard to the
means both of the husband and the wife and to any payment
previously made under an order for a lump sum payment;
(Added, 63 of 1986, s. 4)

(ii) such periodical payments for the maintenance and
education of the child until the child attains the age of 16
years as the District Court considers reasonable having regard
to the means both of the husband and the wife. (Added, 63 of
1986, s. 4)

In making such an order the District Court shall, have regard
primarily to the interests of the children. (Amended, 9 of 1950,
Schedule,. 43 of 1968, s. 2; 35 of 1969, Schedule,. 15 of 1977, s. 3
and 63 of 1986, s. 4)

8. If in the opinion of the District Court the matters in question
between the parties or any of them would be more conveniently dealt
with by the High Court, the District Court may refuse to make an order
under this Ordinance, and in such case, without prejudice to the general
right of appeal conferred by Part IV of the District Court Ordinance, no
appeal shall lie from the decision of the District Court:





Provided that the High Court shall have power by order in any
proceeding in the High Court relating to or comprising the same subject
matter as the application so refused as aforesaid, or any part thereof, to
direct the District Court to rehear and determine the same.

(Amended, 35 of 1969, Schedule)

9. (1) Where, on the hearing of an application for an order of
maintenance or maintenance and education, the application is adjourned
for any period exceeding 1 week, the District Court may order that the
husband do pay to the wife or to the Registrar of the District Court or
any third person on her behalf such periodical payments as the District
Court considers reasonable for the maintenance of the wife and the
maintenance and education of any child or children in her custody until
the final determination of the case: (Amended, 63 of 1986, s. 5)

Provided that the order directing such payment shall not remain in
operation for more than 3 months from the date on which it was made.

(2) Any such order shall be enforced in like manner as if it were a
final order of the District Court.

(Amended, 35 of 1969, Schedule)

10. Any person for the time being under an obligation to make
payments, including costs, under an order under this Ordinance shall
give notice to such persons, if any, as may be specified in the order of
any change of address, and any person failing to give such notice
without reasonable excuse shall be liable on summary conviction to a
fine of $250.

(Amended, 9 of 1950, Schedule)

11. All applications under this Ordinance shall be made and be
dealt with and all orders be enforced in accordance with Part IV of the
District Court Ordinance.

(Amended, 35 of 1969, Schedule)

12. (1) If, on the application of a married woman, it appears to the
District Court that a child is or will be engaged on a course of education
or training after attaining the age of 16 years, or that the child is
suffering from a mental or physical disability, and it is therefore
expedient for payments to be made under an order made under section
5(d) or under section 7 after the child attains that age, the District Court
may order that payments be so made for such period not exceeding 2
years from the date of the order as may be specified in the order.

(2) The period specified in an order under subsection (1) may from
time to time be extended by a subsequent order so made, but shall not in
any case extend beyond the date when the child attains the age of 21
years. (Amended, 15 of 1977, s. 4)

(Added, 28 of 1971, s. 19)
Originally 49 of 1935. (Cap. 16, 1950.) 42 of 1948. 9 of 1950. 15 of 1962. 23 of 1968. 43 of 1968. 35 of 1969. 28 of 1971. 33 of 1972. 15 of 1977. 63 of 1986. Short title. Interpretation. 1879 c. 19, s. 3. 1902 c. 28, s. 5. 1925 c. 51, s. 3. (Cap. 134.) (Cap. 181.) (Cap. 178.) (Cap. 184.) Grounds on which married woman may apply. 1895 c. 39, s. 4. 1902 c. 28, s. 5(1). 1925 c. 51. s. 1(1) & (2). Grounds on which husband may apply. 1902 c. 28, s. 5(2). 1925 c. 51, s. 1(3). Powers of District Court. 1895 c. 39, s. 5. 1920 c. 63 s. 1. Limitation of powers of District Court. 1895 c. 39, s. 6. 1925 c. 51, s. 1(4) Condonation. 1965 c. 72, s. 42(2). District Court may vary or discharge order. 1895 c. 39, s. 7. District Court may refuse an order in cases more fit for the High Court. 1895 c. 39, s. 10. (Cap. 336.) Power to order interim payments where application for maintenance is adjourned. 1925 c. 51, s. 6. Notice of change of address. 1925 c. 51, s. 4. Procedure. (Cap. 336.) Continuation of payments in certain cases. 1957 c. 55, s. 7(2) & (3)

Originally 49 of 1935. (Cap. 16, 1950.) 42 of 1948. 9 of 1950. 15 of 1962. 23 of 1968. 43 of 1968. 35 of 1969. 28 of 1971. 33 of 1972. 15 of 1977. 63 of 1986. Short title. Interpretation. 1879 c. 19, s. 3. 1902 c. 28, s. 5. 1925 c. 51, s. 3. (Cap. 134.) (Cap. 181.) (Cap. 178.) (Cap. 184.) Grounds on which married woman may apply. 1895 c. 39, s. 4. 1902 c. 28, s. 5(1). 1925 c. 51. s. 1(1) & (2). Grounds on which husband may apply. 1902 c. 28, s. 5(2). 1925 c. 51, s. 1(3). Powers of District Court. 1895 c. 39, s. 5. 1920 c. 63 s. 1. Limitation of powers of District Court. 1895 c. 39, s. 6. 1925 c. 51, s. 1(4) Condonation. 1965 c. 72, s. 42(2). District Court may vary or discharge order. 1895 c. 39, s. 7. District Court may refuse an order in cases more fit for the High Court. 1895 c. 39, s. 10. (Cap. 336.) Power to order interim payments where application for maintenance is adjourned. 1925 c. 51, s. 6. Notice of change of address. 1925 c. 51, s. 4. Procedure. (Cap. 336.) Continuation of payments in certain cases. 1957 c. 55, s. 7(2) & (3)

https://oelawhk.lib.hku.hk/items/show/2241

1964

v3

16

7