Family Focus Week: Divorce Might Often be the Only Way Out of a Dead-end marriage

Family Focus Week: Divorce Might Often be the Only Way Out of a Dead-end marriage

Family Focus Week: Divorce Might Often be the Only Way Out of a Dead-end marriage 612 408 Alfred Ip
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With Hong Kong’s divorce rate nearly three times higher as accounted for in the last census in comparison with that in 1991, as well as other statistics ranking the city as having the 12th highest divorce rate worldwide, it is no wonder that Hong Kong has a reputation for being a “graveyard for marriages”.

Hong Kong’s expat community can be particularly vulnerable to relationship breakdowns, as they may be removed from their usual support network and may have to decide whether to return to their home country.

Starting divorce proceedings

If you want to petition for a divorce on your own account, you can fill in an application and take it personally to the Family Court Registry. You can even submit it together with your spouse if both spouses are already in agreement and are happy to apply jointly. However, if you anticipate dispute as to the divorce itself, finances and/or children issues, you are strongly advised to engage a legal professional to make a difficult situation manageable.

The place of marriage should not be of any concern and you can apply for divorce in the Hong Kong Court provided that you can prove the validity of the marriage, even when the marriage was validly celebrated in another country. You must make sure that at least one of the conditions below is satisfied before an application or petition for divorce can be filed:

  • either of the parties to the marriage was domiciled in Hong Kong on the date of the petition or application;
  • either of the parties to the marriage was normally resident in Hong Kong throughout a period of 3 years immediately preceding the date of the petition or application; or
  • either of the parties to the marriage had a “substantial connection” with Hong Kong on the date of the petition or application. It is significant to note that whether a “substantial connection” exists will depend on all the circumstances of each case, including but not limited to, the length of time the parties have lived in Hong Kong prior to their application for divorce, how long they intend to stay in Hong Kong, whether the parties have employment in Hong Kong, and whether they have acquired assets or taken a lease of property in the territory.

There are several ways in determining whether a person is domiciled in Hong Kong. For more details about the concept of domicile, please refer to our previously published article “Domicile and why it’s more than just where you live”.

In general, subject to the following exceptions, no petition for divorce could be presented to a Hong Kong Court before the expiration of the period of one year from the date of the marriage (section 12 of the Matrimonial Causes Ordinance, Cap. 179 ). Possible exceptions to this “one year rule” are either exceptional hardship being suffered by the petitioner – generally being the applicant presenting the divorce petition – or exceptional depravity on the part of the respondent.

However, in considering the lifting of the period of the “one year rule”, the Court shall consider the interests of any child of the family or any chance of a couple’s reconciliation before the expiration of the one year period.

Divorce proceedings in different jurisdictions

Bearing in mind that Hong Kong is a very international city, it is common for either or both parties to have a close connection with another country, especially in the case of expatriates.

It is crucial to consider from a practical point of view whether Hong Kong is the best place to start divorce proceedings. In fact, there might be significant differences over financial matters arrangements – marital or community property considerations, alimony payments and entitlement, and other asset separation calculation methods – or implications about the custody of children.

If one – or both spouses – starts divorce proceedings in different countries, it is to be expected that legal costs might substantially increase, especially when there are disputes arising just from deciding which country is the most appropriate place or forum for dealing with the divorce. The parties may even compete to obtain the first divorce decree, since the forum or the country in which the first decree is made will then be empowered to deal with crucial ancillary matters of finances and children custody.

For the sake of saving unnecessary costs, before starting divorce proceedings, it is advisable to evaluate the recognition of the divorce decree that you intend to obtain, that is, whether it would be recognized by the Hong Kong Court, or whether the Hong Kong divorce decree is recognized by other countries.

It is essential to bear in mind that although a divorce decree granted by Hong Kong Court is recognized in many countries, it is not automatically recognized in all places which will affect the eventual enforceability of any order made by the Hong Kong Court.

Our team at Hugill & Ip has extensive experience in dealing with Hong Kong family laws – so kindly get in touch with us to find out how we can help.

This article is for information purposes only. Its contents do not constitute legal advice and readers should not regard this article as a substitute for detailed advice in individual instances.

Alfred Ip

Alfred assists high net-worth individuals (HNWIs) in handling their wealth-related issues, such as contentious and non-contentious trust and probate, mental capacity, family office, amongst other wealth management matters. He is also a leading Dispute Resolution lawyer with over 20 years of experience in Hong Kong. Moreover, Alfred helps clients with issues regarding Family Law.

All articles by : Alfred Ip
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