Judicial Separation or Divorce? When to file for one or the other?

What is Judicial Separation and why choose it?

 A Judicial Separation application may be appropriate where parties wish to legally separate but for various reasons they do not wish to divorce.  Traditionally, this procedure was available to parties who did not see divorce as appropriate for religious or moral reasons. Parties may also choose to do this if they have not been married for more than one year, or if they do not wish their spousal benefits in employment contracts and the like to be affected by divorce, or if the parties simply wish to “hold off” on the divorce for various reasons.

Judicial Separation will release the parties from the assumption of marital cohabitation.  Since they are not divorced, neither spouse is free to remarry.  Judicial Separation will, however, allow for ancillary orders for the finances and children of the parties either by agreement or through the Courts, granting the parties different or new arrangements after they have judicially separated.

The applicant for Judicial Separation will rely on similar facts as those in a divorce, but the Court is not concerned if the marriage has irretrievably broken down.  Unlike a petition for divorce, the Court will not dissolve the marriage under Judicial Separation.

Are you eligible?

You can start proceedings for Judicial Separation if:

1. Either of the parties to the marriage was domiciled in Hong Kong at the date of the petition;
2. Both parties to the marriage were resident in Hong Kong at the date of the petition; or
3. Either of the parties to the marriage had a substantial connection with Hong Kong at the date of the petition.

Judicial separation does not stop either party from later petitioning for a divorce provided the parties have been married for one year when they petition for a divorce.

Judicial Separation or Petition for Divorce?

	Judicial Separation	Petition for Divorce
Who can launch the application?	Either party of the marriage.	Either party of the marriage.
When can the parties make the application?	At any time after the marriage.	Parties to a marriage must be married for one year before petitioning for a divorce, unless it can be shown that the petitioner has suffered exceptional hardship.
Ancillary Remedies	Ancillary remedies available to the parties by arrangement or through the courts.	Ancillary remedies available to the parties by arrangement or through the courts.
Decree	There is no 2 state process; once the applicant applies for a decree of judicial separation, this is the final decree, subject to the financial and children’s matters being agreed as required.	The courts will grant a Decree Nisi if it is satisfied with the application, and will subsequently grant a Decree Absolute six weeks after to dissolve the marriage subject to the financial and children’s matters being agreed as required.
Remarriage	Parties are not free to remarry.	Parties are free to remarry upon pronouncement of Decree Absolute.

The choice to judicial separate or petition for a divorce is a personal one; each option will allow children and financial matters to be arranged, but each also has different procedural requirements and legal consequences which ought to be carefully considered.

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.

Joanne Brown and Samantha Chu

For more information on Judicial Separation, please contact:

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.