The Barrister Series S5E1 | Financial Disputes and Family Law

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TRANSCRIPT

Tune in for Series 5 of the HIP talks, a podcast series of discussions on legal issues hosted by Hugill & Ip Solicitors, an independent boutique law firm in Hong Kong providing bespoke legal services and exceptional client service to individuals, families, entrepreneurs and businesses, both locally and internationally. The forthcoming podcasts are The Barrister Series. Over six episodes, the team sits down with preeminent Hong Kong barristers to discuss contentious issues related to civil litigation, employment, family, trusts and estates as well as increasing awareness about the importance of the role of barristers in court proceedings and the relationship between solicitors and barristers when acting for clients.

Hugill & Ip provide expert advice across a variety of dedicated practice areas both contentious and non contentious and outstanding team of solicitors who have achieved exceptional results and recognition in the areas of dispute resolution, probate & trusts, family & matrimonial, corporate & commercial and employment & immigration. Hugill & Ip applies modern thinking to legal services, uses technology in a contemporary office environment and is fully committed to giving back to the community.

Frances Tsang  01:16
Hi, everyone. Welcome to this podcast. My name is Frances Tsang, and I’m an associate from Hugill & Ip. Today we have Mr. Azan Marwah, barrister and mediator in Hong Kong from Pantheon Chambers and we have Mr. Alfred Ip, solicitor and partner of Hugill & Ip with us today. So, to start off, can I ask both of you to introduce your area of practice and what you do? Can we start with Azan?

Azan Marwah  01:42
Oh, thank you very much for inviting me to this podcast. I’m a barrister and mediator. That pretty much means that my life lives around litigation, and some advisory work. Most of my practice relates to family and children, estates, inheritance, but also some other areas of law, including employment, discrimination, and I’m probably well, I’m quite well known for my public law work.

Frances Tsang  02:11
Alfred, can you tell us a little bit about what you do and your area of practice?

Alfred Ip  02:15
As a solicitor, private client lawyer, we deal with private client disputes, and family is one of them. We do have a relationship, a lot of times we advise on relationships: why it breaks down, why it comes to a stage of dispute, what is the issue in dispute. And also, we help clients manage their litigation. This is how we separate our work. And we often work with Azan being one of the most reputable barristers in Hong Kong, in handling the whole dispute. A lot of the time, people, especially those who are embroiled in dispute, they get confused with a lot of issues. A lot of the time when people are in argument, they just throw everything out. They don’t understand there are issues and there are issues that need to be resolved. There are issues that are pertinent. But there are also issues that are more pertinent not in terms of money, but in terms of the heart, for the heart part, are I’m afraid that I don’t have the necessary specialty to help them. But on the law part, that’s what we do. Helping them resolve their dispute by putting a team together helping to understand the underlying issues, and put them into context and help them in resolving them one way or another.

Frances Tsang  03:43
So, Alfred and Azan, you are both in litigation, and your practice area is actually quite similar. You both work in private client and divorce, matrimonial cases. Can you tell us a little bit about what are your respective roles in terms of litigation? And give us a little bit of introductions on the type of cases that you’ve worked on together?

Alfred Ip  04:08
Maybe I’ll start first. Because most of the time, we as solicitors will be doing the first client intake, as we call it. Having the first appointment with the client, understanding the issues, trying to identify those issues and advising them on the roadmap, strategizing and helping them to resolve it by communicating with the other side and engaging experts like Azan. There are cases or occasions that we do need their expertise. The reason is that a lot of times we don’t go to court, especially on substantial arguments, which involves a lot of case analysis. And we work with barristers like Azan as a team. They will be helping us strategizing the case and understanding the roadmap with them, their input. And we will be doing our job as managing the whole project, including communicating with the other side, helping the logistics, and helping talking to the client and help them putting things into perspective. I don’t know whether you would agree with me.

Azan Marwah  05:19
I absolutely agree with your analogy of it. Well, I mean, there’s a straightforward thing to say we are a team. I like to think of it sometimes, like if a client had an illness, and they go to the hospital, they wouldn’t expect to be treated by one person. They might start out by going to speak to a GP, they might then go to a specialist, they might need surgery, and then they might require a surgeon, and in but just because you have a surgeon doesn’t mean you’ve dropped your GP doesn’t mean you’ve dropped your specialist team. In my experience, particularly working with Alfred, Alfred is like the head of that team, looking at managing the whole of the litigation managing really the client’s problems, which might not just be one clean problem. And from time to time, you might need an expert or specialist or a surgeon to come in to work on one particular aspect. Or to help shape a strategy, which understands how bad things might get, or the surgery you might need down the road,

Alfred Ip  06:18
I must add that putting a team together is not just about identifying someone to work with. It’s more than just that. Sometimes it’s about having the chemistry and in this respect choosing the right barrister that goes with the client, actually is something all together as a team. And we say that, because just because we have brilliant ideas doesn’t mean that our client is receptive to it. Different people have different character and different people bond with different people. And it’s the reason why private clients, it’s very different in terms of a practice area. There’s no one size fits all approach. Quite so.

Frances Tsang  07:09
Okay, I understand. So I like the analogy that you try to explain the role of a solicitor as a GP and a barrister as a specialist. So perhaps we can try to put this into context. Now let’s try to use maybe financial disputes in terms of, in a divorce proceeding, because I’m sure you both have quite a lot of experience working in this area. Can you try to let us know, let’s say what is the court process in terms of resolving financial disputes and divorce cases? And at which stage do you guys come into play? Or what are your respective duties in this court process itself?

Alfred Ip  07:55
Again, I will start first because after the first client intake, we identify the issue, a lot of times it involves financial disputes, or we call it ancillary relief claim. And the first step would be the Form E. That is the financial statement. Financial Statement, as we always describe, it’s a 20 pages form, detailing to parties, income, expenditures, assets, and liabilities. A lot of people for that is to form it just put it in with figures, with hard facts. But actually, there are a lot of skills required in terms of filling that in, in particular Part Five. This is what we call it pleadings. This is different from the civil claim when we have a statement of claim, we have form E in an ancillary relief claim, then that is the pleadings, and it is under oath. It is most important to plead in the right information. And that is the reason why we should engage barristers since the completion of the Form E because what is required to put into the Form E become important, that would be you evaluated and that will be assisting to counsel in making argument in future, maybe at FDR, financial dispute resolution hearing or mediation or even trial. Trial is most important because parties will be cross examined, whatever they say in the Form E will be cross examined. This is the reason why engaging barrister to look into it so that he’ll understand or identify those necessary elements that should be pleaded in the Form E. That is how we work together as a team.

Azan Marwah  09:42
I’m so glad you bring up the example of the Form E which is generally speaking where a financial claim starts. I would add to that that the solicitor before the barrister even comes in is already doing work on the financial claim even before the Form E in drafting the petition deciding whether or not to ask for financial relief, in writing letters before the issue of the petition and afterwards. But when we get to the Form E, and I think this is really something that sets you apart, Alfred from most of your colleagues, most of them will let the client just fill it in with whatever they feel like filling it in, and they won’t really edit it, then when thinking about the strategy, they won’t think about what is going to happen at the end of the case, how will this fit into the end game? And you doing that you need to think, what is our strategy? What kind of claim are you going to make and what claims are going to be made against you. Because if you don’t fill that in properly, you’re quite right, you’ll be cross examined on it, or you might end up limiting your claim, and end up having to drop something of value.

Alfred Ip  10:43
And also very important is to set the narrative right. This is what we emphasize at the very beginning, when we are taking a client in understanding the story that his or she is telling us. And there will be understanding what would be the claim, what will be the defense. I don’t think that a lot of people approach it as such. But it is very important to me to identify the strengths and weaknesses in each party’s case. Because at the end, we see the end game, and how we’re going to put it consistently throughout the whole case in order to achieve our end game. And that’s what we call strategy. This is important to identify since day one, otherwise, there will be inconsistencies in the course of a case that can run for two years, maybe three. A client may not be able to understand why is this important to keep it consistent. Because at the end of the day, if it’s a fact, it happened, it shouldn’t change. And identifying the material facts is very important to me.

Frances Tsang  11:56
I agree. I think and I like the fact that you two have pointed out how important it is to involve the barrister during the Form E stage where at least I do because for me is so called a standard stage that you will always go through in ancillary relief proceedings and this is actually a very milestone document which sets out basically the basis of your claim in terms of the finances in a divorce setting. And it is very important that when we start with the stage and we get the barrister involved, because we need to be on the same page in terms of the claim and the strategy going forward. But in terms of family proceedings, in general, we know that aside from the you know, the milestone documents or the milestone state that we have to the stages that we have to go through there are also a number of situations which can be unexpected. So, perhaps we might need to file a maintenance application before the Form E or there can be you know, a section 17 application in terms of dissipation of assets, or, you know, an injunction, you know, when spouses have, you know, at the start of proceedings, dissipated assets, and we need to quickly deal with that situation. So, in terms of those situations, I understand that we will also a lot of times need a barrister’s involvement. So perhaps can Azan tell us a little bit about, you know, perhaps your experience with this kind of situations, and you know, your roles …

Azan Marwah  13:32
In litigation, there are so many different permutations, every case is different, every client is different. And having experience of those different situations and not just that experience of the different judges, the different opponents, knowing, knowing how things might turn out is so valuable, particularly early on, in a case when you’re doing all the preparation. Bringing on a barrister, and particularly an experienced barrister, is an opportunity to get that experience which you might not have. An experienced solicitor will have a lot of experience, but that doesn’t mean they would have seen everything. But the other valuable thing that you add is barristers really specialize in courtroom advocacy. And that’s really two things that are the legal advocacy and the second thing is the witness handling; cross examination, knowing how you’re going to test evidence, not only what evidence you’re looking for, but also what the strengths and the weaknesses might be. And that’s where you might bring in a barrister to get that additional experience and expertise. And in the long run, it can be frankly, a little bit cheaper sometimes.

Alfred Ip  14:39
I want to add that at the end of the day, we have our clients to handle at the same time we do not have the privilege like Azan to go into court in and out. Yes, actually. I always say that going to court is like going to an examination room. A lot of times you will be facing a lot of critical questions from the judge, on the law point of view or on the evidence point of view. Before every hearing before every application, you are expected, Azan, to know your case inside out, know your law inside out to assist the court into making the right order, or directions. And this is something that I’m afraid I do not have the privilege of going into the court in and out, no matter how many cases we’re doing at the moment. And that’s the reason why we work together so well. We know each other’s role. And we basically work as a team that in the sense that you do your job I do mine. You can expect what we can deliver and viceversa…

Azan Marwah  15:50
…respect for each other’s strengths. Yeah,

Frances Tsang  15:52
Yes, I agree. And I think barristers are, particularly, you know, valuable when, you know, there is an urgent application, you know, where maybe we don’t have all the evidence before the court, and you but client needs the relief urgently. And this is some situation where, you know, you really need someone who is specialized in courtroom advocacy, who knows, you know, the different styles of different judges and the case laws inside out, to persuade the judge to grant you the relief. And this is something that is, I would say, the, you know, a specialty of the of a barrister and why you know, there are so valuable,

Azan Marwah  16:33
I would add to that, that we have the privilege, which Alfred’s already alluded to, of having the time to just spend all of our time reading law, reading cases, doing research, writing books. And in practice, when you’re doing practical things, when you’re handling cases, you have a different kind of expertise. But sometimes judges in these kinds of applications, we’re talking about they expect you to know fully all of the case law in an area, which is the job of the barrister.

Alfred Ip  17:05
And in that respect, I think one of the major difference in terms of our role as barrister and solicitor is that we do become very close with our client in the course of handling a case. And a lot of times we do side with our client in trying. Yeah, absolutely. We side with our clients in fighting for the best interest, without having the perspective of a barrister, or even the judge who is looking from above, seeing everything altogether and trying to achieve justice by being fair. When we are very close to the client is very difficult for us being fair to be honest, no matter how much we want to be. And this is the reason why working with barristers help us with getting another perspective to make our case stronger in the sense that we look at our weaknesses, sometimes we are blind by our own weaknesses.

Azan Marwah  18:03
And barristers are not afraid to deliver the bad news. Oh, yeah.

Alfred Ip  18:07
Because it’s your job to be critical.

Frances Tsang  18:09
I think it’s particularly important in the private client practice area, because, you know, as Alfred said, we’ve worked so closely with the client, and we, you know, we talk to them every day, we take instructions from them, and a lot of times we manage their emotions and everything. So it will be very helpful, well, for a barrister to come in and you know, deliver, like another perspective and in terms of client management as well, to give them you know, let’s say, you know, what, what is the best scenario out of this? And what is the worst scenario so that we can, how I should put it, like, put the overall perspective before the client and let and let them know what they can actually expect from a case. So, now, can we have some examples from you two, as in like, what are the specials cases, stuff you’ve worked on before? Or, you know, what are the more memorable cases that you’ve worked on before in terms of divorce or financial disputes?

Azan Marwah  19:08
Well, I think we’ve been working together for so many cases for so many years. One of the most interesting cases that we worked on was a same sex couple. Unfortunately, one of the couples had died, they’d been married. And afterwards, there are a lot of issues to do with the estate of the of the deceased, which we were working on together and, and the complications there. But one of the most interesting things that happened in that case, I don’t know if you remember, Alfred, was the question of the other side were engaged in their campaign of harassment against the client. And the issue that came up for us was, well, how can we get an injunction to stop this harassment, the harassment included writing letters to the employer of the of the partner who had survived and we had a very interesting discussion in the High Court about the jurisdiction of the court under the Domestic Violence Ordinance, which we were quite successful in making that argument. And the judge indicated to the other side that they should concede, and give us the undertaking that we sought.

Alfred Ip  20:16
Actually at that hearing I learned a lot. Because in the past, when we were dealing with a lot of civil cases, we issue summons, you make an application, you have an affidavit in support, and you’re trying to get the relief sought in the summons or in a draft order to represent. Of course, the court is within your jurisdiction to grant the order. But it may not be the only way that issue can be resolved when dealing with a situation like harassment. Okay, let’s say that we get a court order or the injunction to prevent from the other side continue harassing our client. What if he breaches it? What would be the relief that we can seek against the other side? how effective it is? Sometimes, it’s not just about the court order, but also getting an occasion for all the parties to be together in front of a judge and try to resolve it outside the court. This is actually a lot of time what we are doing outside the family court and that’s why there are so many consultation rooms. It is very effective when people can get together and try to find a solution to it, instead of forcing the court to give an order that we’re asking for. And this is the reason why the court always encourage alternative dispute resolution, be as mediation, private FDR, or any other way to resolve it which is to facilitate communication, seek guidance on how to resolve a dispute, a lot of time in a creative way. And this is also the reason why we like working with you Azan so much because we are fairly creative, especially when the two of us are together.

Azan Marwah  22:13
I will take I will take that as a compliment. Of course. Well, I remember in that particular case, and we were talking about some other cases. But in that particular case, when we showed the other side who of course, were grieving the loss of their relative, we showed them a bit of compassion and humanity outside of court. And very quickly, I think that same day or later that day, the probate matter was resolved without further argument and fight. So it you’re quite right with those opportunities to speak with people in a calm way as an outsider, not as the not as the client, but as a professional to speak in a professional in a humane way, you can resolve the real problem.

Alfred Ip  22:53
And that actually reminds me of something that I was told by other practitioners. He or she sees a trend that a lot of people do get self-represented in court, in legal proceedings. And actually, we are now working with on a few cases that the other side are all self-represented. Well, of course, everyone can have access to justice. Nobody is compelled to hire lawyer. A lot of time people do not hire a lawyer because they couldn’t afford it. Or they couldn’t find the right lawyer. But at the same time, they are deprived of this opportunity to have professional help. In complex legal proceedings, there’s not just one way to resolve a dispute. And sometimes the professionals’ assistance would help them to get into perspective, understanding the consequences in a clear and sustained manner and help to resolve the dispute, the sooner the better. If only some of the litigants in person will hear this podcast and start hiring a lawyer, not necessarily us. But then there will be a lot of time and money saved if they get the right assistance and a better outcome. Yes, absolutely.

Azan Marwah  24:16
I’ve had the recent experience of someone who couldn’t afford to hire lawyers to work on the case full time. But nonetheless, that person is let’s say, sufficiently articulate, they can speak to their own case, but they would still come to us for advice, or have us review the documents their submissions to the court separately from that. And I think at least even that is better having at least some advice or holding yourself forward rather than being truly out at sea on your own. Because in some cases I’ve seen people spend years without any result. And time, money has all gone to waste and the relationships have only deteriorated…

Alfred Ip  24:57
And the whole thing is exacerbated when the legal process in Hong Kong is so complicated and so long, that if you do not have a lawyer, you do not get it resolved at the very beginning, you end up spending more time and costs on it. And especially at a time when there’s an economic recession. The longer you wait, the longer that the money will dwindle away, eroded by basically recession. So, this is more of a reason for parties who get into disputes to get it resolved with professional help as soon as possible.

Azan Marwah  25:36
There’s another case that we worked on recently, which was pre-nuptial case, there was a pre-nuptial agreement. And I look at the case and it’s a very typical thing. That husband comes from France, where having a prenuptial agreement is actually normal. I think most married couples do get a prenuptial agreement. But the problem was, although he was living in Hong Kong, he had not received advice from Hong Kong lawyers about the terms of the prenuptial agreement. In the end, we took him to court, I think we were quite successful. But when I look at that case, I think how many how many people are like this where they’re not going to the specialists to get advice before there is a problem. And in the end, it can cause a real long term problem and be very costly.

Frances Tsang  26:24
So Azan, you’ve talked about this case involving a prenuptial agreement, and I think it is more and more common that people nowadays get enter into Prenuptial agreements before they’re married or even post nuptial agreements to cater for a situation you know, when there is unfortunately a divorce. Can you tell us a little bit more about you know, the laws on prenuptial agreement in Hong Kong and why is it necessary to have an expert to look into this matter before it is signed?

Azan Marwah  26:58
Well, I would say first of all that it is sensible for everyone to get a prenup. Of course, it matters what the prenup says, but it’s not just for people who want if you’d like a one sided prenup, everyone should get a prenup because you don’t want to be in the situation where when the relationship is broken down just at that minute is also the minute you need to be able to communicate. A prenup is basically an opportunity when cool heads are prevailing to write down what you would want to happen in the event of the dissolution of a marriage. And whether that’s 50/50 or some other arrangement: a prenup is better than nothing. Now that said is important to remember whether Hong Kong prenup or a foreign prenup. A prenup is not going to bind the court. It is not a contract, like a commercial contract. It instead is something that the court may take into account and the court is more likely to take a prenup into or for that matter of postnup into account depending on the terms. One of the most important thing is that the way in which the agreement was reached was fair. Both sides understood what they were signing, both sides ideally had the chance to seek legal advice. They don’t necessarily need to have taken legal advice but they then you do need the real opportunity. They should be having their faculties at the time when they when they sign the prenup there shouldn’t be any duress or coercion to make them sign the prenup. But beyond the formal requirements of the prenup, then there’s the substantive version. So, the court if it’s a formally valid prenup mean taken into account, but it’s more likely to give it full weight. If you can say that there’s fairness in the outcome.

Alfred Ip  28:48
A lot of times, people come to me and say, I popped this question of prenup, but he was right out rejected by the other side. Saying that all is not lucky to talk about divorce and unromantic and I’m not after your money or something like that. I think it’s all because of a prejudice about prenup. Prenup is actually not about divorce. It’s about managing the finances in the course of the marriage and the expectation among the parties. This is actually very important. We are talking about two people spending the rest of their life together. It’s not just happily ever after… there are a lot of aspects to consider: children, of course, a lot of people plan about this, but then finances is also important. This is very simple for example, are they are you guys expected to have children? After you have children, is one of you wanting to stay home and mind children full time knowing that nowadays minding children is a full-time job. And at the same time when one party is not working, half the income or even more maybe would be deprived from the family. And Hong Kong is a very expensive place to live, what is expected from each other in terms of their role in the family, this is all part of the family planning. And afterwards, once there is a very good understanding, we also have to cater for changes. Prenup is not about oh, just an agreement set in stone and there’re no changes in the future. Of course, this is an agreement made at the beginning of a relationship. After the relationship proceed, things change, people change. But there’s some fundamentals that should not have changed, or even if it’s changed, it should be agreed among the two parties in a marriage. That’s what we call understanding and this is part of the love and respect and commitment. This is how we people manage their relationship or in the course of long process and prenup therefore it should not be shunned against. I mean, this is a prenup talking about people, how they’re managing their finances, and managing their expectations towards each other.

Azan Marwah  31:15
If I were allowed to give one message to clients, I would say having a prenup is a loving thing to do for your spouse. Actually, it is a loving thing to do. Now, of course, you can do it in an unloving way, of course, that you can do anything in an unloving way. But it fundamentally what you are doing is you’re being responsible. You’re having that discussion about your financial life, rather than pretending that life doesn’t have hard choices, that life doesn’t have difficult moments. This is part of real life. And if you really respect your partner, then you should be able to have those conversations. And if it is difficult to have those conversations that will that may be the time to involve a third party, because in the long run, you may save yourself and then a lot of grief.

Alfred Ip  32:04
I cannot agree more.

Frances Tsang  32:05
Yeah, I sometimes like to compare a prenuptial agreement to a will as in like, people think it is in a bad luck to do a prenup and they kind of avoid it. Generally, the stereotype around wills or less these days, but with prenups it’s still pretty much existent. And but the thing is it actually caters for the situation where you know, something bad happens and I agree with Azan, it’s actually you know, it can be an act of love. And it’s you offering your partner the discussion and the opportunity of coming into an agreement to cater for some unlucky situations in the future. Well, we could call it protection. Yeah. And, and also with a prenup, you can be very flexible and creative in terms of the terms as long as they are fair. And this might not be the opportunity that you might be offered by the court if there is no prenup, and then you will have to go through a divorce in a very contentious way.

Alfred Ip  33:11
Of course, at the same time, we’re saying that we are very creative in terms of prenup. I don’t know how creative we want it to be, because we all know very well how the court will assess the situation and therefore in…

Azan Marwah  33:23
To say we all we know, we know. And I actually I actually feel that most even most solicitors handling family cases are not actually specialists. And they may not know the reality, because I have seen now too many prenuptial agreements, where apparently some Hong Kong solicitors looked at it and the quality of advice given was really, really not from someone who knew the area. And yeah, well, that is something hopefully will change in the future. Yeah,

Frances Tsang  33:55
and I think that’s why we need specialists to prepare these documents as in you will need to know the extent of creativity you can incorporate in the terms and whether or not they will be and how the court will actually look at those terms and what you can expect.

Azan Marwah  34:15
In fact, I would add one other really important thing people’s financial lives are not siloed when you know man is an island, especially not in Hong Kong. And very often people have financial links with friends with family and they may be holding things on trust for people or they may be holding things in tandem with other people. And if you if you don’t have a clear disclosure to your partner at the beginning of the marriage, if you’re not open about those things and is not recorded, you might not only be causing a problem for yourself, you might be causing a problem for your whole family or all of your friends. Leave aside the expense of having disputes about these things. Now as I said before, a prenup. might not remove the possibility of a dispute, but it can significantly reduce the cost and scope of such a dispute.

Frances Tsang  35:09
We’ve talked about, of divorce cases you’ve worked with. And you’ve also mentioned that there is this case concerning, inheritance provision for a same sex couple from an estate. So, can you tell us a little bit about this area of work that you do and any particular cases other than that you’ve mentioned, and give us some stories?

Azan Marwah  35:37
I’ll do my best. There are in a way, as you were saying before, wills and prenuptial agreements, there’s some kind of comparison, I would say that people’s antipathy towards prenuptial agreements is partly driven by their ignorance about what the law says happens in divorce. But likewise, people’s failure to to write wills is partly driven by their failure to understand what happens when you die to your estate. They may not fully understand, well, two things. What happens when you don’t have a will? There’s something called intestacy, where there are certain rules drafted by the government that provide that portions of your estate may go to certain relatives or your spouse. But those rules are not necessarily what people think they are, they’re much more, they’re slightly more complicated, then your spouse gets everything or your parents get everything, it’s, it’s a little bit more complicated than that. But even whether you have a will, or you don’t have a will, there is another kind of premium called the inheritance provision. And this is a separate ordinance dealing with that, which provides for discretion with the court, specifically the family court, to give maintenance and other orders for the benefit of your family members if you die, including family members that you fail, and including non-family members that you failed to provide for in your will. So, in the context of same sex couples of the couple is married abroad, at least for the moment, following a case called Ng v. The Secretary for Justice and now Li and The Secretary for Justice, it has been decided already by the High Court that a same sex married couple will be treated the same as an opposite sex married couple. But even if the couple is not married, they may still fall under what I think is sometimes called the mistress exception: there is a provision in the inheritance ordinance that allows for a court to give maintenance and other financial orders for people that you have maintained during your life and that were being maintained at the time you deceased. So, for example, if there’s a couple of whether they’re same sex or opposite sex, it doesn’t really matter, who were living as though they were a married couple. and one of them is dependent on the other. And that depends on the person who is who’s providing financially for the dependent, then dies, then the dependent person can apply to the court for what we call financial provision.

Alfred Ip  38:21
I think thanks to Azan same sex couples can now claim the same right as some heterosexual couple, but actually, this emphasize the importance of couples getting married. Just for example, the example that you mentioned, people who live as husband and wife or husband and husband or wife and wife without getting married. Hong Kong law is actually very simple. You either got married or not. And if you’re getting if you have gotten married, um, the court can look into it as in a divorced couple in the context of what we call (Cap.) 481 inheritance provision claims. That will be a divorce standard. And we’re talking about the difference between need case and a sharing case, a simple dependent based on other provision in the session, will only have a need case basically, that is the need of that person that relied financially on the deceased and what should be awarded to provide such need, that is to Hong Kong law position. But if the couples are married, they will be looking at contribution towards the accumulation of wealth. And if it’s beyond the need of a party, applying the DDLKW principle, it will be a sharing case at least it will be compared against we talk about a very different amount, especially when we are talking about a substantial accumulation of wealth. And that is something that not a lot of practitioners are aware of, unfortunately, when they’re drafting a will, they didn’t take proper instructions and then put into read provision to avoid such a claim. A lot of time is about understanding what how the survivor understands the wishes of the deceased or the testator, and why they have such a decision. Think about it, you marry someone, and that person passed away and then you get disinherited, without any reason. Why? Perhaps, you know, perhaps you don’t know. But that becomes litigation. That is the main reason for litigation. And to put it in a more complicated context, when we’re talking about multi-jurisdictional wills, multi-jurisdictional estate disputes, what you envisage, is may be very different from what it actually happens.

Alfred Ip  38:45
We’re currently handling a case that the son of a ultra-high-net-worth deceased is disinherited. And he made a claim against the estate, even though he’s not a financial dependent during the deceased’s lifetime. Why he has a claim? Because he claimed it in Australia. Australia has a completely different yardstick in terms of assessing such a claim, and is more likely than not that such a claim would be successful compared with Hong Kong. He will probably have no luck in Hong Kong, but only because he’s passed away in Australia, he has to claim in that state, and it’s fairly likely that he would get something and not to mention that he’s not the only son who got disinherited. And the message that I want to bring out is that, especially when there’s an international context, you really need to take a good estate planner to advise you properly on how to avoid this kind of claim.

Frances Tsang  42:01
Yeah, thank you and you both brought up the topic of same sex couples and provisions for them from the estate in the event that you know, one of them die, so I understand that Azan you have had quite a lot of experience in terms of public law, and fighting for not only the LGBTQ community, but also people who are underprivileged. So, can you tell us a little bit about the public law work that you do? And what usually is your battlefield or your area of interest?

Azan Marwah  42:43
Well, I have been doing public law from the beginning of my practice. And I do remember going to law school and thinking to myself, I’m going to do trusts, and I’m going to do property, and I’m going to do company work. And then as soon as I got into practice, it’s not that I didn’t do any of that work, it’s just I was just so much more attracted to real people, real problems.

Alfred Ip  43:11
I always thought you were a human rights lawyer, right?

Azan Marwah  43:13
Whoa, yeah, no, no, I started out being all about very hard law. But I mean, that’s basically what you were saying earlier, Alfred, I was just much more attracted. I just couldn’t say no to people and I was really motivated to do work where I felt real people were going to be really affected. It’s just much easier to do that for me. And the kind of public law work I’ve been doing, you can say that public law is people who have their own idea about public law, what public law is about is about getting authorities to comply with the law. That’s what it’s about at the end of the day. People think, oh, you’re challenging this…No, no, what you’re really doing is you’re going to court and you’re saying, court give guidance to the government about what the law is. Now, there are different reasonable, sometimes unreasonable views about what the law is. But we’re not you’re going for the public purpose of assisting the government or a public body to understand what the law is what it requires of them. Now, I have been drawing these two threads together. I’ve always had an interest in complex law overlapping different areas, you call me creative, it is only because I see law as a giant web. And I consider it my obligation to figure out how all the threads overlap, how things are connected. And so, I got into public law and the kind of public law I do is, has generally speaking, been about individual basic rights, and how well frankly, our constitutional rights they came into place in 1991, and then 1997 but most of our laws are written before 1991. And they haven’t got up to speed, they’re not updated yet. And so, I’m never worried that there won’t be enough work for me to do, because there’s a lot of ways in which the law needs to catch up with the higher law, which is the Basic Law.

Frances Tsang  45:18
Thank you. So, aside from your involvement in public law and the courtroom, I understand that you also have a lot of public initiatives outside the courtroom. So is there any pro bono work or community campaign services that you do?

Azan Marwah  45:40
I’m, in a way very happy to talk about some of these things. I do think that lawyers are in a privileged position and our privilege is our expertise in the law and our understanding of how government policy and the law is supposed to work. And that’s a real opportunity for us to contribute to the public good. And, you know, I wouldn’t diminish in any way the work done by Alfred pushing for improvement in other areas. Now, what I do is, I spend a lot of my time advocating children’s rights. I’m the chairman of the Hong Kong Committee on Children’s Rights, which which is a nonpartisan group, filled with experts in different areas of child development, child protection, children’s rights and child law. And our role is really to coordinate between the non-government community and the government itself, to improve public policy related to children, the care of children, the education of children, child protection. Aside from that, I do some other things, I don’t want to, I don’t want to make myself different than what I am, I tried to do things that I find fun and interesting. For example, the last couple of years, which I really encourage anyone to get involved with, I have been working on an initiative to recognize the contribution of the South Asian community to Hong Kong. In particular, people may not know this, but many of the troops I think, if not most of the troops that defended Hong Kong against the Japanese during the Second World War were Indians. Many of them were punished cruelly by the by the Japanese during the invasion, many of them died defending Hong Kong. There are actually a couple of memorials to the soldiers. One of them is in Happy Valley. And a few years ago, I went to visit it on Remembrance Day, and I noticed that there was nobody else there. And then we’ll also notice that the jungle had taken over this, this site. And what I wanted to do, and I very quickly found that so many people who wanted to help because they didn’t know about it, and we cleaned up that graveyard and the memorial. And ever since then, we’ve been having these annual remembrance days where we go along to commemorate the contribution of these soldiers. Yeah, so sometimes I do stuff like that. But I’m not going to say, I mean, it’s been fun. Like, it’s more fun than you would think cleaning up a graveyard.

Alfred Ip  48:16
At the end of the day, I think we all do things that we believe in. Be as to law, be as the charitable cause, or other things in life that we believe in, that are here to add value. To you there are a lot of things for example, children’s rights, and these are when we talk about vulnerable groups that require our help, especially when we have been privileged to have the legal training, to have to experience. This is a list of things that we can reward back to society. Who else would be in a position to do what we can do in terms of protecting children’s rights, minority rights, be as South Asian or LGBT or any other vulnerable groups? These are the people that need our help.

Azan Marwah  49:06
I’ll give you an example. I have been volunteering at Mother’s Choice since like a while since I was like eight or nine. You know, paint things, go along to the gala dinner. They’re all these little things. It’s only when I became a lawyer and I started to volunteer with my twin brother, who’s also a barrister. We said do you need any legal support? And we discovered that there were so many cases of institutionalized and abandoned children. They really needed lawyers. And unfortunately, there are no lawyers specializing in this area. And now in practice Saphan and I we, my brother that is, we specialize in child protection law and adoption law. There really are very few other people who do this area because there is no money. But on the other hand, two things: one, there is nothing more exhilarating than feeling like you have changed the course of a child’s life. And the other thing is, like I said before, we are privileged to be lawyers, we are in a position to do something. If no one else will do it, then it must be our obligation to do it.

Alfred Ip  50:16
And we believe that children are our future.

Frances Tsang  50:18
Yes, I agree. Yeah. And I think that is actually the reason why we go into private client practice in the first place, because we are because we want to help people, and we want to use our professional knowledge to help people and it’s different from commercial litigation or in a corporate work, which is not to say that these works are not worth doing, but that you know, what private client work, there’s always a human…

Azan Marwah  50:50
…side of things and immediate gratification and helping.

Alfred Ip  50:55
Um, the dynamics are different. The psychology is different. That is the reason why there’s specialist private client lawyers, and we don’t try to compete with the commercial litigator…

Azan Marwah  51:07
to all of my corporate clients. Of course, I enjoy helping you.

Frances Tsang  51:11
The level of connection that you have with the private client is always very different compared to

Azan Marwah  51:16
I find that my corporate and commercial clients, many of them, they also want to be involved in helping real people, particularly children, and minorities and vulnerable groups. Everybody across the board wants to do what they can.

Frances Tsang  51:34
Yeah. So, I think with that note, thank you very much for coming to this podcast today. And I enjoy a lot speaking with you two. And with this note, this is the end of this podcast, and I hope you enjoyed it as well. Thank you. Thank you.

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