Introduction

It is common knowledge that a spouse has the right to be maintained after divorce, and that a spouse is entitled to half of the family assets, which include those owned by the other spouse. What about if the couple has never been married and they have a child? Does the unmarried mother/father (usually mother) have the right to claim maintenance? The Court of Appeal in LTM v RJT [2019] HKCA 1004 said “yes” and it granted the mother “child carer’s allowance” in the case.

Factual background

The Father is a British and the Mother is a Peruvian Canadian. They started living together in 1999 but never got married. The Mother gave birth to two children, a girl and a boy (who are now in secondary school). The family moved to Hong Kong in 2001. The Father worked as a lawyer while the Mother stayed at home as a housewife. They maintained a decent lifestyle: they had good accommodation with a maid and access to club facilities and the children went to international schools. The Father also had a large property in France and the children lived there for a while in 2008. It was later concluded by the Court of Appeal that the expenses on the children alone amounted to HK$58,000 per month.

In 2009, the Father and the Mother were separated and the Mother has since become the sole carer of the children, although the Father continued to pay HK$50,000 for the children’s maintenance every month. At trial, the Father also undertook to pay for the children’s school fees and other expenses on extra-curricular activities and medical and dental treatment etc. The trial judge ordered the Father to pay HK$25,000 to the Mother as child carer’s allowance and it was against this particular order the Father appealed to the Court of Appeal.

The law

The Matrimonial Proceedings and Property Ordinance (Cap. 192) governs the maintenance of spouses and children whose parents are married to each other and the regime is based on the need and equality principles. In other words, the court will first ascertain the need of the less well-off spouse and the children, and if there are still assets left, the starting point is to divide them equally.

On the other hand, the Guardianship of Minor’s Ordinance (Cap.13) (“GMO”) governs the maintenance of children whose parents have never been married to each other. The court’s power to grant child carer’s allowance derives from section 10(2)(b) of the GMO, which reads:

• The court may as regards a minor, on the application of a person with whom… custody of the minor lies at law, make in respect of the minor…
• an order requiring payment to the applicant by such parent or either of such parents of such periodical sum towards the maintenance of the minor as the court thinks reasonable having regard to the means of that parent…

When it comes to child carer’s allowance, the Hong Kong courts have been adopting the English principles. In Re P (Child: Financial Provision) [2003] 2 FLR 865, the English judges did not agree that paying an unmarried mother a sum more than that she might need to hire a caretaker amounted to paying a former mistress who had no right to claim for maintenance. The judges recognised the legitimate indirect benefit to the child in taking care of the unmarried mother’s physical or emotional welfare, as long as it could be taken care of by financial means, and one of the judges said:

“I believe that a more generous approach to the calculation of the mother’s allowance is not only permissible but also realistic…”

The Court of Appeal’s decision

The Court of Appeal in the present case held that when the trial judge ordered the Father to pay the Mother child carer’s allowance, he was trying to address her need which was of legitimate indirect benefit in helping her to sustain her physical or emotional welfare. The judge acknowledged that deciding the amount of child carer’s allowance was a sensitive exercise but held that the common thread underpinning this kind of cases is the need to recognise the responsibility and sacrifice of the primary carer especially when the other parent does not have financial concerns.

Given that the Father had the financial means but the Mother had been a housewife and could at most earn HK$10,000 by giving Spanish language classes now, it is not surprising that the Father’s appeal in relation to the trial judge’s order of granting child carer’s allowance to the Mother was dismissed. In other words, the Mother was entitled to HK$25,000 as child carer’s allowance.

Also, after the Court of Appeal had calculated the expenses regarding the children’s maintenance, the Father agreed to pay the children HK$60,000 instead of HK$50,000 per month for their maintenance on top of school fees and other expenses.

Conclusion

Although the legislation does not expressly provide for the maintenance of an unmarried parent, Hong Kong courts have been using section 10(2)(b) of the GMO to grant child carer’s allowance. By granting child carer’s allowance, not only is the court concerned with the child’s direct interest and welfare, it is also concerned with the unmarried parent’s physical and mental well-being, which would have an impact on the child.

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Important: The law and procedure on this subject are very specialised and complicated. This article is just a very general outline for reference and cannot be relied upon as legal advice in any individual case. If any advice or assistance is needed, please contact our solicitors.