Legal update: Expats and divorce in Hong Kong06Sep2018
Where to Divorce: Home or Hong Kong?
Some families arrive in Hong Kong from overseas and enjoy the adventure of being in a new place, throwing themselves into new activities and meeting new friends. Others arrive and the changes they face crack what is already a troubled marriage. The question is, once you have left your home country behind and set up household in Hong Kong, what are your options? Can an expat get a divorce in Hong Kong or does one have to return home?
Section 3 of the Matrimonial Causes Ordinance, which governs family law matters in Hong Kong, provides that there are three grounds for jurisdiction over a matrimonial matter: (i) domicile; (ii) three years habitually resident; or (iii) substantial connection to Hong Kong.
Hong Kong’s Domicile Ordinance states that a domicile in a new country will be established if he is present in the country and “he intends to make a home there for an indefinite period”. One can only have one domicile and most expats sent over for a temporary work assignment do not intend to make a home here for an indefinite period. As such, they must demonstrate jurisdiction under one of the other two remaining arms of jurisdiction.
Habitually Resident for Three Years is the easiest of the three arms of jurisdiction. Once someone has been habitually resident in Hong Kong for three years or more, the court will be seized of jurisdiction. But what happens if things fall apart before the three year mark is reached and what if domicile cannot be established?
The leading Hong Kong case on substantial connection is ZC v CN  5 HKLRD 43 and it states that one must look at the surrounding factors to see whether that person has a connection to Hong Kong and then whether that connection is a substantial one. The court will examine the specific facts of each case in making its determination.
As an expat considering divorce, be sure to raise the question of jurisdiction with your solicitor as you prepare to file a petition for divorce to ensure the court is properly seized of the matter before incurring unnecessary legal expenses. In addition, if served with a petition, seek early legal advice and do so before responding to the petition on your own as there are many reasons to either challenge or accept the court’s jurisdiction in a matrimonial proceeding and these reasons should be considered prior to appearing or filing an answer.
Mark Side / Kimberly Dasse
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Disclaimer: This publication is general in nature and is not intended to constitute legal advice. You should seek professional advice before taking any action in relation to the matters dealt with in this publication.