2.107Section 18(6) of the Matrimonial Proceedings and Property Ordinance defines “welfare” for the purposes of that section as including custody, education and financial provision.165 Section 2 of the Ordinance defines “custody” to include access, and “education” to include training.
Criticisms of Matrimonial Proceedings and Property Ordinance (Cap 192)
2.108O’Donovan166 recommended that the law should be amended to include a similar section to section 25 of the United Kingdom Matrimonial Causes Act 1973. This provision, inserted by the Matrimonial and Family Proceedings Act 1984, puts the court under a duty to give first consideration to the welfare of a minor when making a decision on financial matters.
2.109There is no specific provision in the Matrimonial Proceedings and Property Ordinance for the wishes of the child to be taken into account. However, as noted earlier, section 48C of the Matrimonial Causes Ordinance (Cap 179) does refer to section 3 of the Guardianship of Minors Ordinance (Cap 13). Section 3(1)(a)(i)(A) of Cap 13 makes specific reference to the wishes of the child.
e) Separation and Maintenance Orders Ordinance (Cap 16)
2.110The Separation and Maintenance Orders Ordinance deals with separation from a spouse. Most of the ordinance stems from the United Kingdom Summary Jurisdiction (Married Women) Act 1895.167 This was enacted to give power to a magistrate to protect a married woman whose husband had been convicted of assaulting her or was a habitual drunkard. The District Court has the power, inter alia, to make an order that the legal custody of children of the marriage be committed to the husband or wife under section 5(1)(b). The application is grounded on allegations of misbehaviour set out in section 3, which include assault, desertion, being a habitual drunkard or a drug addict, compelling the other party to submit to prostitution, or being guilty of persistent cruelty to the children.
2.111Section 6(1) of Cap 16 prohibits the making of an order for “legal custody” if it is proved that the applicant has committed an act of adultery. Section 6(1) contains a proviso if the spouse of the applicant has condoned or connived at, or by his or her wilful neglect or misconduct conduced to the adultery. The ordinance does not define “legal custody”, nor does it explain what difference there is, if any, between legal custody and custody. There is no reference to access in the ordinance,
165 The whole section is taken from section 17 of the Matrimonial Proceedings and Property Act 1970 c 45 .
166 “Recent Developments in the Law Relating to Children”, Law Lectures for Practitioners (1987), at 172.
167 1895 c 39 section 6, UK; 1925 c 51 section 1(4) UK.