Who is a “child of the family”?

Who is a “child of the family”? LNL v HPYA [2016] 3 HKLRD 261

The main issue before the Court in this case was whether the child, CH, was a child of the family. The determination of this question was relevant to whether the husband should pay maintenance for the child to the wife.

CH was the natural child of the wife. The wife’s relationship with CH’s natural father ended in 2003 and she entered into a relationship with the husband in 2006. From very early on in the relationship CH was introduced to and spent time with the husband, including overnights, and the husband later moved in with CH and the wife when he and the wife married in 2013.

The husband filed for divorce in November 2014. In his petition the husband pleaded that there was no child of the family now living. The wife disputed this and maintained that CH, though not the natural child of the husband, had been treated by them both as a child of the family.

Deputy District Judge Grace Chan directed that a fact finding hearing be held to determine whether CH was in fact treated as a child of the family.

The legal principles governing this area were not in dispute. In short, the Matrimonial Proceedings and Property Ordinance defines a “child of the family” in the two following limbs:

“a. a child of both those parties
”b. any other child who has been treated by both parties as a child of their family.”

It was the second limb which was at the heart of this dispute.

The Court took a number of facts into account in considering the question of whether CH was treated as a child of the family.

Husband referred to CH as his son

It was submitted by the wife and not disputed by the husband that during the wedding ceremony of the husband and wife he had CH as one of his best men and introduced CH to his relatives and friends as his son. The husband’s explanation for this was that he was both considering CH’s feelings and he wished to save the wife any embarrassment. This was not accepted by the Court because according to his own evidence the husband’s family and friends already knew that CH was not his natural son.

Change of CH’s name

Both prior to and following his marriage to the wife, the husband suggested that CH’s name be changed to adopt the husband’s surname, the middle character to be changed according to the genealogy of the husband’s family, and the last character to be chosen by the husband. The Court accepted that these indicated that the husband was treating CH as a child of the family.

CH’s school handbook

In addition to the above, at the beginning of one of CH’s school terms the husband signed CH’s school handbook as one of CH’s parents / guardians and signed inside the book when the wife was not able to. The Court held at paragraph 34 of the judgment that the only “logical conclusion” to this was that “the husband actually saw himself as a parent of CH and that he treated CH as his own child.”

Previous divorce proceedings

Divorce proceedings had previously been brought by the wife but withdrawn on the basis that the parties had not yet been separated for one year. In these proceedings, the husband did not refute the wife’s assertion in any of the documents he filed in those proceedings that CH was a child of the family and in fact confirmed this in his own Form E, detailing the school and living arrangements of CH. The Court made clear that it considered the fact that the husband was at all material times represented in the previous proceedings, including the time at which the Form E was filed.

Other considerations

The Court accepted the wife’s submission that the husband’s payment to her for rent and household expenses and to CH for pocket money indicated that the husband had taken up parental responsibility.

Conclusion

On an assessment of the above facts, the Court found that CH was indeed treated by the parties a child of the family.

It is clear from this judgment that the Court’s approach as to whether a child is a “child of the family” is quite generous, and there are many factors that the Court is willing to consider in making its assessment. It should be noted that the factors considered in this case are not exhaustive of those that can be considered in answering this question. The factors that the Court relies upon in such cases cannot be considered individually but must be viewed in light of all of the circumstances of the case, and should not be considered legally but rather practically in that light.

Joanne Brown

The above is not intended to be relied on as legal advice and specific legal advice should be sought at all times in relation to the above.

If you are considering a divorce, and need guidance on whether a child is a “child of the family”, please contact:

Joanne Brown
Partner | Email

Disclaimer: This publication is general in nature and is not intended to constitute legal advice. You should seek professional advice before taking any action in relation to the matters dealt with in this publication.