Radmacher in Hong Kong: Choosing between Autonomy and Equal Sharing

Abstract

Following the Court of Final Appeal decision in DD v LKW in 2010, the court’s statutory discretion to make an ancillary relief award on divorce is directed to achieve fairness between the parties by reference to three key factors: needs, compensation and equal sharing between parties. The latter factor reflects the concept of marriage as a partnership of equals, each of whom makes a different but equal contribution to the family. Traditionally, under Hong Kong and English law, the court’s jurisdiction to make ancillary relief awards could not be ousted by pre- or post-nuptial agreements. However, last year the United Kingdom Supreme Court in Radmacher v Granatino gave decisive weight to the parties’ pre-nuptial agreement when making an ancillary relief award. One of the primary reasons for this development was the Court’s view that fairness would be best achieved by respect for the parties’ autonomy rather than by imposing the court’s own view. This article will explore whether the Hong Kong courts can and should follow Radmacher, both in terms of achieving gender fairness in ancillary relief awards and conformity with the rules of stare decisis.

Keywords: Family law, divorce, ancillary relief, pre-nuptial agreements, equal division

JEL Classification: K10, K19, K30