Jurisdiction of divorce; what is the situation in Hong Kong?Oct082015
Can I divorce in Hong Kong? If not, why not?
It is not true that just because a couple was married in Hong Kong, they could or should divorce here; where the marriage took place is irrelevant. The circumstances immediately before the divorce are key.
The courts in Hong Kong only have the jurisdiction to handle a divorce if at the time when divorce is filed, the husband or the wife falls within one of the following connecting factors:
- is domiciled in Hong Kong;
- has been habitually resident in Hong Kong for the three years immediately before the divorce; or
- has a substantial connection with Hong Kong.
Definitions of domicile and habitual residence
A person is domiciled in Hong Kong if he/she is present here and intends to make Hong Kong his or her home in the foreseeable future.
A person is habitually resident in Hong Kong if he/she voluntarily lives in Hong Kong for the time being.
In the absence of domicile or habitual residence, a couple could only rely on having a substantial connection with Hong Kong.
Substantial connection generally has a wider scope and takes into account various factors such as:
- nature of employment in Hong Kong;
- location of family assets and the matrimonial home;
- schooling of children; and
- past pattern of life indicating Hong Kong as the couple’s home base.
All of the above factors will be considered by the court in determining whether there is substantial connection in each case. Below is a summary of two cases whereby substantial connection was found present:
A couple relocated to Hong Kong from Taiwan for over 15 years. The husband worked here. The children were born, raised and educated here. The family lived in three matrimonial properties in Hong Kong.
During their time in Hong Kong, they also retained their Taiwanese citizenship, paid tax and government medical insurance in Taiwan. The family also occasionally visited families and friends there. The couple was found to have substantial connection with Hong Kong notwithstanding their ties with Taiwan.
The wife and the children lived in Hong Kong for six months. They lived in a rented apartment with a lease term of two years. The children were students of local schools. The husband had an office in Hong Kong notwithstanding that he was rarely in Hong Kong. There was deemed to be substantial connection.
Generally, it would be easier to establish substantial connection if a couple centred their matrimonial life in Hong Kong. On the other hand, mere commercial ties such as having bank accounts or businesses in Hong Kong without other connections would unlikely be sufficient.
Each case is different. Contact Joanne Brown to explore whether you qualify to divorce in Hong Kong.
The above is not intended to be relied on as legal advice and specific legal advice should be sought at all times in relation to the above.
If you would like to explore whether or not you qualify for divorce in Hong Kong, please contact:
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.