7. What factors will the Court consider in assessing the provision of child maintenance?
In accessing what financial provision should be made for a child, the Court shall consider all the circumstances of the case, especially the following matters:
- the standard of living enjoyed by the family before the breakdown of marriage;
- the financial needs of the child;
- any physical or mental disability of the child;
- the manner in which the child was being brought up and in which the parties to the marriage expected him or her to be educated;
- the financial resources and needs or obligations of the parties to the marriage;
- the any income, earning capacity (if any), property, or other financial resources of the child.
According to section 7 of the Matrimonial Proceedings and Property Ordinance , the Court is obliged to place the child, so far as it is practicable and just to do so, in the financial position in which the child would have been if the marriage had not broken down and each of those parties had properly discharged his or her financial obligations and responsibilities towards the child with the two considerations of:
- the income, earning capacity, property and other financial resources which each of the parties to the marriage has or is likely to have in the foreseeable future;
- the financial needs, obligations and responsibilities which each of the parties to the marriage has or is likely to have in the foreseeable future.
The aforesaid principle is easier said than done. In practice, most divorce cases would bring about a drop in their standard of living for all parties concerned, including the children. This is because usually there would be insufficient resources to maintain the previous lifestyle upon the break up of the family.
Other factors to be noted in relation to step children
As said, a ‘child of the family’ can include a child who is not the natural child of one of the parties to the marriage. Nowadays, given the increasing rate of divorce, there are many children who are living with a step-parent.
In such cases, according to section 7 of the Matrimonial Proceedings and Property Ordinance , the Court is obliged to have regard of the following factors, among the circumstances of the case-:
- whether that party (against whom the claim is being made) had assumed any responsibility for the child's maintenance and, if so, to the extent to which, and the basis upon which, that party assumed such responsibility and to the length of time for which that party discharged such responsibility;
- whether in assuming and discharging such responsibility that party did so knowing that the child was not his or her own;
- the liability of any other person to maintain the child.