In this edition of Friday Club Insider, we sit down with Jocelyn Tsao, Head of Family Law and Managing Director of Withers Hong Kong.
With more than 18 years of experience advising on high-net-worth divorces, prenuptial agreements, child custody and complex cross-border disputes, she has also helped secure equal parental rights for same-sex partners through two significant High Court cases. Read on as Jocelyn unpacks the misconceptions she encounters most often, the conversations couples should have before marriage and what a positive outcome can look like when children are involved.
Read More: Hong Kong Proposes Plan To Recognise Same-Sex Marriages
What drew you to family law in the first place?
I’ve practised family law for many years and began specialising in it straight after law school. While many of my peers moved into commercial or corporate law, I was the black sheep who chose a different path.
I wanted to work in an area that felt more human, where my clients were private individuals rather than corporate entities. At the time, it came down to criminal work or family law. As a people person, and someone who has always been interested in relationships, I felt better suited to family law.
What kinds of matters do clients usually come to you for?
My work primarily involves divorce cases, although I also assist parents of children born outside of wedlock. There’s also been a rise in prenuptial agreements, so I regularly advise clients on and help draft those.
What advice would you give couples before marriage, particularly regarding finances and prenuptial agreements?
What I find surprising is that many clients come to me at the point of divorce with very little understanding of their spouse’s financial circumstances.
Before marriage, couples should understand each other’s values around money. What are their aspirations? Do they want to build something together financially, or keep their finances separate and independent?
Marriage isn’t only a romantic commitment. It carries real financial implications, including rights and responsibilities that arise once the marriage is registered.
For international couples, the situation can become more complicated. They may live in different countries, hold assets across multiple jurisdictions, or have one parent working abroad while the other lives with the children elsewhere. They should consider which jurisdiction would be most appropriate if the marriage were to break down, as enforcement and the division of assets can become more complex.
Couples considering a prenuptial agreement should also think about where they may live in the future and whether the agreement would be recognised there. In some cases, lawyers from different jurisdictions may need to work together so that the agreement has the best chance of being effective wherever the family ultimately settles.
Why are more couples considering prenuptial agreements today?
More couples are considering prenuptial agreements because people are increasingly aware of the possibility of divorce. Many now view a prenup as a form of insurance: you hope you never need it, but you’re glad it’s there if you do.
As people become more financially independent, they’re also more conscious of protecting what they’ve earned or acquired themselves.
There’s also more generational wealth being passed down. Families may want inherited assets to remain protected rather than shared with someone in the event of a future divorce.
For those reasons, both couples and their families are increasingly recognising the value of entering into a prenuptial agreement before marriage.
Are prenuptial agreements only necessary for wealthy couples?
Many people assume that only the rich and famous need prenuptial agreements, but I don’t think that’s true. Even an average couple with their own income or savings may want clarity about where they draw the line between shared and separate finances.
A couple may not have substantial wealth at the time of marriage, but one or both parties may later inherit assets from their families. A prenup can help clarify how those assets should be treated if the marriage ends.
It can also reduce the risk of court proceedings, acrimony and legal costs, all of which may affect the children if the couple has a family.
How can couples approach the conversation around a prenuptial agreement in a healthy way?
Prenuptial agreements can give couples clarity about their shared goals and values around money. If handled properly, I think they can bring a couple closer together.
Finances are often awkward or difficult to discuss, even with someone you intend to spend the rest of your life with. A prenup can create an opening for that important conversation.
What is one of the biggest misconceptions people have about divorce?
There are many misconceptions about divorce, but one of the biggest is that the reason for the breakdown of a marriage will affect the financial outcome. Generally, it doesn’t.
Even if one party has committed infidelity or otherwise wronged the other, the court is usually less concerned with fault. Instead, it takes a structured approach to the finances, considering how the assets should be divided, whether spousal maintenance is appropriate and how child maintenance should be calculated.
Many clients are surprised to learn that a spouse’s affair does not automatically entitle them to additional compensation or a greater share of the assets.
When a marriage breaks down, what do people often misunderstand about custody and the concept of care and control?
Many people use the word ‘custody’ without fully understanding what it means legally.
In the context of divorce, there’s custody, but there’s also care and control. Custody refers to major decisions concerning the children and is usually shared jointly, allowing both parents to participate in those decisions.
Care and control is what many parents are really disputing. It determines which parent the children live with on a day-to-day basis. Understandably, neither parent wants to live separately from their children.
When deciding care and control, the court looks at who has historically managed the children’s daily lives. This includes schooling, routines, medical and dental appointments, extracurricular activities and other aspects of their day-to-day care.
When children are involved, what does a ‘win’ really look like for your clients?
A win in a children dispute is when the parents can reach a consensus without prolonged and acrimonious court proceedings.
Litigation inevitably affects children. They may have to be interviewed by social welfare officers and may become aware that their parents are fighting over them. That can affect their long-term development and even how they come to view marriage and relationships.
If parents can contain the dispute, avoid allowing it to affect the children and approach the matter not as opposing sides but as parents working together in the children’s best interests, that’s a win for the couple and, most importantly, for the children.
What qualities should someone look for in a good family lawyer?
I believe empathy is the most important quality. A family lawyer needs to put themselves in the client’s position and understand where they’re coming from, while still offering an objective and rational view of the situation.
Clients are often deeply affected by emotion, which can cloud their judgement. Part of our role is to help them see the matter from a different perspective and approach it sensibly. In cases involving children, that means encouraging them to focus on the children’s best interests rather than resentment or bitterness towards the other parent.
Availability is also important. Urgent matters can arise without warning, particularly in cases involving children or domestic violence. Family lawyers accept that we may sometimes need to support clients outside office hours, or even while on holiday.
Seeking clarity on a family law matter? Speak with Jocelyn Tsao and the Family Law team at Withers Hong Kong.
This post is in partnership with Jocelyn Tsao.
Catherine Pun
A Hong Kong native with Filipino-Chinese roots, Catherine infuses every part of her life with zest, whether she’s belting out karaoke tunes or exploring off-the-beaten-path destinations. Her downtime often includes unwinding with Netflix and indulging in a 10-step skincare routine. As the Editorial Director of Friday Club., Catherine brings her wealth of experience from major publishing houses, where she refined her craft and even authored a book. Her sharp editorial insight makes her a dynamic force, always on the lookout for the next compelling narrative.
