so it is not known whether the non-custodial parent would be denied access if he or she were guilty of adultery.
2.112It is submitted that an order of custody should not be refused merely on the grounds of the applicant’s adultery. Such a prohibition is not based on the best interests of the child, but on irrelevant questions of morality.
Variation or discharge
2.113Section 7(1) gives power to the court to vary, discharge, suspend or revive after being so suspended, any order made under the ordinance, but only on fresh evidence. Section 7(3) provides that a prior order shall be discharged if a husband or wife commits an act of adultery. If there is an application to discharge the order on the grounds of a subsequent act of adultery by either party, the court has the discretion, even if it discharges the original order, to make a new order continuing the custody order in favour of that original party, with consequential orders for maintaining the children.168 Section 7(5) states that “in making an order under subsection (4)(b) the court shall have regard primarily to the best interests of the children”.169
Criticisms of the Separation and Maintenance Orders Ordinance (Cap 16)
2.114This whole Ordinance reflects a fault based regime between the spouses, which deals inadequately with the children. The focus of the Separation and Maintenance Orders Ordinance is on granting a separation order and an ancillary order of maintenance for the wife and children. An order of custody is a prerequisite to an order of maintenance for the children. The sub-committee understands from practitioners that this ordinance is rarely used. However, it can be used by those women who are a party to a customary marriage or a union of concubinage, who cannot apply for a divorce or decree of judicial separation under the Matrimonial Causes Ordinance (Cap 179).170 The amendments made by the Marriage and Children (Miscellaneous Amendments) Ordinance (Ord. No. 69 of 1997) have redressed many of the defects of this ordinance. It remains to be seen how the courts will resolve the apparent conflict between the mandatory requirement of section 6, prohibiting an order when there is adultery, and the best interests of the child.
2.115Section 5(1)(b) of the Separation and Maintenance Orders Ordinance (Cap 16) limits its custody jurisdiction to “children of the marriage”.171 There is no definition of this term so it is not clear whether it includes children born outside wedlock, but who are accepted as children of the marriage.172 The duration of a
168 Section 7(4)(b), as inserted by section 12 of the Marriage and Children (Miscellaneous Amendments ) Ordinance (Ord. No. 69 of 1997).
169 As inserted by section 12 of the Marriage and Children (Miscellaneous Amendments) Ordinance (Ord. No. 69 of 1997).
170 The definition in section 2 includes these categories of relationships.
171 Supra at 173.
172 There is a definition of “child” and “child of the family” in section 2 of the Matrimonial Proceedings and Property Ordinance (Cap 192).