Navigating through divorce proceedings in Hong Kong?
Adrian Au, partner from our family practice breaks down the most frequently asked questions, offering clarity, guidance, and practical insights for those navigating this complex process.
The full Q&A is set out below. A downloadable version is available at the end.
Question 1:
What do I need to know about divorcing in Hong Kong?
Answer:
In Hong Kong, divorce proceedings follow a 3-pronged process: dissolving the marriage, handling child care arrangements, and sorting out finances.
Initially, all three steps happen simultaneously. If the main suit is not contested and if the Court is satisfied with the paperwork, the Court will issue a Decree Nisi. However, the marriage is not formally dissolved at this point, and after the Court is satisfied with the financial and care arrangements for the children, it will then issue a Decree Absolute, formally dissolving the marriage.
As described above, the divorce proceedings is a 3-pronged process. It is therefore not uncommon that the financial proceedings between the spouses are still ongoing even after the Court formally dissolves the marriage.
Question 2:
Does Hong Kong recognise our overseas marriage? Do we have to register our overseas marriage in Hong Kong?
Answer:
Hong Kong Courts recognise overseas marriages provided that the marriage was lawful under the local jurisdiction where it occurred, and that there was mutual consent from both parties.
There is no requirement to register an overseas marriage in Hong Kong for recognition by the judicial system. Nonetheless, should you desire to update your marital status with the Immigration Department, you may do this by completing and submitting Form ROP 18 which is available at https://www.immd.gov.hk/eng/forms/forms/rop18.html
Question 3:
If we are legally married overseas or in Mainland China, can I get divorced in Hong Kong? Would the outcome be different if we had married in Hong Kong?
Answers:
So long as parties were legally married, the place where the parties were married is not a factor which the Hong Kong court will take into account when deciding with whether it has jurisdiction to deal with the divorce petition.
Under the laws of Hong Kong, the Hong Kong Courts will have jurisdiction to deal with a divorce petition if either party:
- Was domiciled in Hong Kong at the time of the petition;
- Was habitually resident in Hong Kong for 3 years immediately preceding the date of the petition; or
- Had a substantial connection with Hong Kong at the time of the petition.
The above jurisdiction requirement applies regardless of whether the parties were married in Hong Kong / Mainland China or elsewhere in the world.
Question 4:
We were married in Hong Kong, but have since lived in the Mainland China. Can we file for divorce in Hong Kong?
Answer:
The Hong Kong Courts may have jurisdiction over a divorce petition if either party is domiciled in Hong Kong; has habitually resided in Hong Kong in the past 3 years, or has a substantial connection with Hong Kong at the time of the petition. The Courts will assess the facts of each case individually at the time of the petition, and no single factor will be definitive in determining jurisdiction.
Question 5:
I am a Hong Kong Permanent Resident (HKPR). Can I file for divorce in Hong Kong?
Answer:
Being a HKPR does not necessarily mean they are domiciled in Hong Kong. A person is considered domiciled in Hong Kong if they are present in Hong Kong and intend to make it their home for the foreseeable future.
However, if this is not satisfied, they can try to satisfy one of the other jurisdictional requirements.
Question 6:
If both parties consent, can we become formally divorced by registering our agreement with the relevant authorities in Hong Kong?
Answer:
In Hong Kong, only the Court may formally dissolve a marriage. Parties must therefore either petition for a divorce or jointly apply for a divorce.
However, the Hong Kong Court encourages parties to reach an amicable settlement over both children and financial arrangements prior to commencing divorce proceedings. Donig so may sometimes shorten the time needed for the Court to consider and formally dissolve the marriage.
Question 7:
Is there a “cooling-off” period in Hong Kong? Will the Court reject our petition in the first instance?
Answer:
The only “cooling-off” period is a 42 day gap between the pronouncement of Decree Nisi and application for Decree Absolute, so that the Petitioner can “wait and think” before formally applying to dissolve the marriage. If the parties eventually reconcile their differences, they may apply to withdraw the divorce petition any time before the Court formally dissolves the marriage.
Once the Court is satisfied that it has jurisdiction over the divorce proceedings and that the marriage has broken down irretrievably for the reasons stated in the divorce petition, it will proceed to dissolve the marriage, regardless of whether this is the parties’ first time petitioning for divorce.
Question 8:
If I can petition for divorce in both Hong Kong and the Mainland China, what are my considerations?
Answer:
Choosing the forum and applicable law for determining child and financial arrangements may significantly impact the outcome of the proceedings.
In our experience, clients often ask about the duration of proceedings, the children’s residence, the location of family assets, the asset division, and parental rights. Parties must carefully consider the benefits and drawbacks of each jurisdiction before filing.
Question 9:
On what basis can I petition for divorce in Hong Kong?
Answer:
The only ground for divorce in Hong Kong shall be that the marriage has broken down irretrievably. In the divorce petition, the petitioner will have to prove and satisfy the Court with 1 of the 5 facts, which are commonly known as:
(i) Adultery;
(ii) Unreasonable behaviour;
(iii) One year separation with consent;
(iv) Two year separation; and
(v) One year desertion
Question 10:
What are the implications if an adulterous petition is established?
Answer:
In the English Judgement G v G [2002] 2 FLR 1143, Coleridge J famously commented that:
“the parties are not assisted to achieve compromise when they are encouraged by the law to indulge in a detailed and lengthy retrospective involving a general rummage through the attic of the marriage to discover relics from the past to enhance their role or diminish their spouses”
Hong Kong Courts will unlikely consider the reasons for the breakdown of the marriage when determining child arrangements or finances.
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