I do… agree to get divorced

16Sep2020

My spouse and I agree to dissolve our marriage. Should I file a petition based on the fact of One Year Separation with Consent or should we apply under for divorce under a joint application?

If you and your spouse have to come to agreement that your marriage has broken down and both agree to a divorce, there are a number of methods to proceed.

Strictly at law there is only one ground for presenting a divorce: the marriage has broken down irretrievably. There are five facts under which a divorce can be evidenced:-

  1. Adultery;
  2. Desertion;
  3. Unreasonable Behaviour;
  4. One Year Separation with Consent; or
  5. Two Years’ Separation.

If you have both agreed to divorce and you have been separated for a year or thereabouts, one option is to petition and rely on fact 4 above, one year separation with consent. An alternative option is to file a Joint Application.

This begs the question: what are the pros and cons of a Petition: ‘One Year Separation with Consent’ and a ‘Joint Application’?

Differences between Petition and Joint Application

Joint Application

A Joint Application is an application for divorce mutually agreed and applied for by both spouses. A pre-requisite to a joint application is that:

  1. You and your spouse have lived apart for a continuous period of at least one year immediately before your joint application; or
  2. You and your spouse have filed a notice to the Family Court, which indicates your intention to dissolve your marriage, of not less than one year before your joint application and such notice was not subsequently withdrawn.

You and your spouse must jointly file all Court documents required for the divorce, including a Joint Affirmation in support of the Joint Application for Divorce and an agreement on arrangements for any child or children of the marriage and financial agreement. A Joint Application may not be the most convenient method of applying for a divorce if either party is not in Hong Kong or if communication between the Parties have broken down such that you cannot agree necessary terms. It is also inappropriate to file a Joint Application if you and your spouse have not agreed on the terms of the divorce, including financial arrangements and children’s arrangements (if any).

One year separation with consent

After you and your spouse have separated for one year, either party may issue a divorce petition on the basis of that fact. The other spouse will be the respondent in the divorce proceedings and must confirm to the Court that they agree to the divorce. If terms on children or finance have not yet been agreed, these can proceed through the usual court process. If there is no agreement as to the separation period or the Respondent does not consent to the Petition, an alternative petition should be presented.

Separation is not defined. It is generally a question of fact and usually a couple will agree to a specific separation date. Generally, the one year period may start when both of you have the intention to end your marriage and have made arrangements to live separately. To satisfy the requirement of “living apart”, you and your spouse may live separately under two different households or you may continue to live in the same roof but no longer conduct yourself as a married couple. Of importance to note is that mere physical separation may not always satisfy the requirement of living apart.

Conclusion

The timeline for the two options are relatively similar. Both options require you to have been separated for one year before the petition or the joint application is issued. Once the petition or the joint application has been filed with the Court, the timeline to obtain the final Decree Absolute formalising the dissolution of your marriage is also similar.

Joanne Brown and Joanne Lam

For advice on how to proceed with a One Year Separation with Consent Petition or a Joint Application or if you and your spouse wish to formalise your divorce prior to one year’s separation, please contact our Matrimonial Partners:

Mark Side
Partner | Email

Joanne Brown
Partner | Email

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