Gazetted on 30 June 2023, the Family Procedure Ordinance (Cap. 646) (the “FPO”) is a much-anticipated relief to family practitioners in Hong Kong, who have been waiting for a set of consolidated and centralized procedural rules to family and matrimonial proceedings across the Family Court and the High Court since the presentation of the Final Report regarding the Review of Family Procedure Rules in May 2015, and the conclusion of the public consultation on the draft Bill in April 2022.
Although most of the provisions under the FPO are not yet operational at the moment (including sections 3(1)(e), 3(3), 4 to 14, 16 to 23, 27, 28 (except aspects regarding section 76 of the Schedule) and the Schedule (except section 76)), there are a few key mechanisms that are important in streamlining the efficiency of the Family Court, as discussed below, which have already come into effect. The operation of the rest of the FPO will commence together with the Family Procedure Rules (the “Rules”) to be put forward by the newly established Family Procedure Rules Committee (the “FPRC”) later.
Registrar and Masters System
Under the current revamp, one special feature which would be put into place first is the Registrar and Masters system, per section 15 of the FPO (which is already in operation).
It is envisaged that the Registrar and Masters would handle various procedural work such as amendments to the originating process and time extensions, to ease the burden of the Family Court Judges. This would undoubtedly be a welcome addition to the Family Court that currently comprises one Principal Family Court Judge, seven District Judges and four Deputy District Judges, the manpower of which may arguably be insufficient to meet the increasing demands arising from the substantial number of divorce cases.
Family Procedure Rules Committee
Another upheaval to the Family Justice system is the establishment of the FPRC which will act as the sole rule-making authority of all procedural rules relating to family and matrimonial proceedings, much like the current structure of the rules committees for the High Court and District Court. This is also an appreciated improvement as it will help minimizing inconsistencies.
Under section 24 of the FPO (also already in operation), the FPRC will be constituted by various individuals such as the Chief Judge, High Court Judge, Registrar or a Master of the High Court and District Court, the Principal Family Court Judge, a Family Judge, 2 barristers, 2 solicitors and the Secretary for Justice. The relevant provisions regulating the FPRC and its powers are provided in Part 4 of the FPO (also already in operation).
Notable features of the Proposed Rules
With the Rules yet to be released and applied, it remains to be seen exactly how constructive the reforms to the Rules will be and whether previous concerns will be adequately addressed. According to the Consultation Document on the Draft Family Procedure Bill on procedural reforms for the family justice system dated February 2022, the major proposed features of the reformed Rules are as follows:-
- Each part of the Rules to be self-contained, meaning that family practitioners and unrepresented litigants would be able to find all the specific procedural requirements clearly set out in categorised parts of the Rules without the need to make cross-reference with other pieces of legislation;
- Courts be given enhanced powers to promote expeditious case disposal, and in particular, the Court’s power to encourage the use of alternative dispute resolution (such as mediation) at every stage of the proceedings is strengthened;
- There will be new arrangements to discourage procedural abuse, such that the Courts may be given additional options to deter parties from intentionally breaching undertakings given by them;
- There will be updates in line with latest developments on family related procedural matters; and
- The Rules will be drafted in plain language and there will be simplified Court forms, enabling easy comprehension of each provision and guidance of steps to be taken where necessary.
With the number of divorce cases continuing to be well over ten thousand each year (there were 21,157 divorce decrees issued in 2019, 16,020 in 2020, 16,692 in 2021 and 13,026 in 2022 according to the Census and Statistics Department) and more litigants choosing to appear in person, it is high time the FPO and its subsidiary legislations are updated and fully implemented after its introduction, which will undoubtedly give family practitioners and unrepresented litigants clearer guidance in litigation. Unrepresented litigants are advised to take note and be familiarised with the reform, and we would recommend such litigants to seek independent legal advice or legal aid if required.
We hope to see the continued modernization and development of the Family Justice system to bring Hong Kong in tandem with the standards of the rest of the international matrimonial law community.