Family Law — Breaking the Chains of Consent: Novel Issues in Applications to Vary
In family law proceedings, parties would often formalise their financial settlement upon divorce in form of a Consent Summons, subsequently sanctioned by the court as a Consent Order. In some cases, parties proceed only to carry out their agreement in the Consent Summons, without taking further steps to crystalise it into a formal Order. However, circumstances may arise where those parties then seek to vary what they have once agreed due to unforeseen changes or non-compliance by the other side.
The case of HMC v CWY [2024] HKFC 87 (reported in [2024] 5 HKC 617) concerns two applications to vary a Consent Summons and a Consent Order respectively. The decision offers valuable insights into the jurisdictional principles governing such applications and the court’s approach in determining whether variation should be granted, particularly where a variation is sought (i) in the absence of a formal Order; and (ii) in reliance on a newly made Order.
Isabel Tam represented the petitioner husband.
Chris Wong provides his analysis on the judgment below.
Background
The parties divorced after a short marriage and had one child together. A key element of their financial settlement, formalised in a Consent Summons, was the sale of their matrimonial home with proceeds to be split equally, and it was agreed that the petitioner (Husband) be allowed to reside in the property rent-free until shortly before the sale.
However, years after the Consent Summons had been filed, the property remained unsold, and the Consent Summons had not been made into a court order. The respondent (Wife) first sought to vary the Consent Summons, alleging the Husband’s uncooperative behaviour and the downturn in the Hong Kong property market hampered the sale. She requested the court to allow her to manage the sale independently and potentially sell the property at a lower price than initially agreed. After the Wife’s first application, the Summons was made into a Consent Order, and around a week later, the Wife made a second application, this time to vary the newly-made Consent Order.
Deputy District Judge Peter Barnes dismissed the application to vary the Consent Summons but allowed the application to vary the Consent Order, providing further directions for the sale of the property. The novel areas of contention were: (i) the correct jurisdictional approach to an application to vary a Consent Summons; and (ii) whether the court ought to take into account the events occurring prior to the date of the Consent Order in determining whether a variation of the order was justified, notwithstanding that such applications usually consider the change of circumstances occurring between the date of order and the date of application.
The Court’s Approach to Variation Applications
Court’s Power to Vary Consent Summons vs Consent Order
The distinction between the Consent Summons and Consent Order is crucial for understanding the limits of judicial intervention in consensual compromises. The court ruled that it has no power to vary the Consent Summons, given that a Consent Summons is a record of the parties’ agreement and not a court order. The court accepted the Husband’s submissions that its role is to supervise the implementation of the parties’ agreement, but it does not render the court the power to rewrite the terms of that agreement, which is always open for variation upon the parties’ reflection.
However, once incorporated into a Consent Order, the court has the power to vary it under section 11 of the Matrimonial Proceedings and Property Ordinance (Cap 192) (“MPPO”). Notably, the recital or preamble to the order was held to be “just as enforceable as the numbered paragraphs within [the order]”.
Considerations in Variation Applications
The court, whilst observing that any change of circumstances occurring from when the original order was made was a factor to be considered on an application to vary,[1] nonetheless emphasised that it is not confined solely to considering post-order changes in circumstances. Section 11(7) of the MPPO requires the court to examine all circumstances, give due weight to the original basis and intended effect of the order, and assess the entire case de novo. This means that the court is entitled to consider events leading up to the Consent Order in deciding whether to allow the variation.
The court found that while the Husband’s reduced incentive to sell the property due to the rent-free residence and the downturn in property market was foreseeable, the Husband’s persisted reluctance in selling the property over several years was unanticipated. The court took into account the prolonged delay in the sale of the property and the Husband’s inconsistent behaviour in dealing with the purchase offers as creating exceptional circumstances in this case.
It was held that the Husband’s refusal to accept realistic offers and continuous rent-free occupation of the property, while the Wife bore additional costs for alternative residence, frustrated the parties’ intention embodied in the Consent Order. The Husband’s behaviour (after the date of the Consent Summons but before the making of the Consent Order) was a key factor in the court’s decision of allowing the variation of the Consent Order to facilitate the sale and achieve the intended “clean break” between the parties.
Implications
This decision has clarified the following issues: –
• Court’s Power in Variation – This case reinforces the principle that the court only has power under the MPPO to vary Consent Orders but not Consent Summonses. Parties must be aware that the terms of a Consent Summons are not suspectable to judicial alteration in the manner which Consent Orders may be. Significantly, this case also makes clear that the Court is not confined to assess post-order change of circumstances but would also consider pre-order circumstances and whether the order’s intended purpose has been undermined. This case will likely impact parties seeking to modify court orders that have not been in place for a significant period of time.
• Obstruction and Non-Cooperation – Obstructive behaviour that undermines the basis of the agreement can lead to variation of the order. The decision underscores the importance of parties acting in good faith when implementing an agreed approach, even where that approach had not yet been made into a Consent Order.
• Impact of Unforeseen Circumstances – The decision acknowledges that unforeseen circumstances, particularly the prolonged delays and market changes, could justify varying a Consent Order, even if those circumstances were partially foreseeable before the making of the Consent Orders.
• Clean Break Principle – It reaffirms the Court’s commitment to achieving a clean break in divorce settlements, even if it requires modifying prior orders to do so.
Conclusion
The decision provides clarification on the distinct judicial treatment towards Consent Summonses and Consent Orders in matrimonial proceedings. At the same time, the court’s willingness to vary the Consent Order, notwithstanding that it had technically been in place for only a matter of days, demonstrates an emphasis on practicality and on interpreting the fundamental basis of the original settlement agreement. The decision reinforces the court’s power to intervene when necessary to achieve a just and equitable outcome in matrimonial proceedings, and its continuous obligation in overseeing the enforcement of court orders.
[1] Citing AEM v VFM [2008] 1 HKC 324
Isabel Tam
“Isabel is strong in analysis and research.”
Legal 500 Asia-Pacific 2025: Administrative and Public Law – Leading Junior
Isabel is a Bar Scholar who graduated with a first-class LLB and with distinction in her LLM. She also has an MA in competition law with distinction in the examination component and was seconded to the Competition Commission.
Called to the Bar in 2013, Isabel practises in a wide range of areas, with an emphasis on family law, commercial/regulatory matters and public law.
Recent highlights of Isabel’s experience include NF v R [2023] 5 HKLRD 58, a breakthrough for same-sex parents, granting a declaration of “parentage at common law” to a same-sex couple, and AA v BB [2021] 2 HKLRD 1225, which has been hailed as a landmark victory for the LGBTQ community, granting rights to a separated same-sex couple who had co-parented children during their relationship. Isabel appeared for the Respondent, the non-biological mother within the same-sex relationship, and secured rights for her including guardianship and joint custody.
Visit Isabel’s profile for more details.
Chris Wong
Before joining Chambers in 2024, Chris was a Judicial Assistant at the Hong Kong Court of Final Appeal, where he assisted judges in substantive appeals and leave applications.
Chris is developing a broad mixed practice and accepts instructions in all areas of Chambers’ work.
Visit Chris’s profile for more details.
This article was first published on 11 March 2025.
Disclaimer: This article does not constitute legal advice and seeks to set out the general principles of the law. Detailed advice should therefore be sought from a legal professional relating to the individual merits and facts of a particular case. The photographs which appear in this article are included for decorative purposes only and should not be taken as a depiction of any matter to which the case is related. The views and opinions expressed in this article/material are solely those of the members authoring it and do not necessarily reflect the official policy or position of Denis Chang’s Chambers, or of any other member or members of Denis Chang’s Chambers.