Essential Elements to Consider Before Starting Divorce Proceedings

Divorce rates in Hong Kong have more than quadrupled in the most recent decades. Consequently, the territory has a growing reputation for being a “graveyard for marriages”.

Experts believe that such increase may be linked to different factors, including financial and workplace pressure, long working hours, lifestyle and values that depart from tradition. Life strains can become rather intense in Hong Kong: small housing, raising living costs, career ambitions and chasing material success can contribute to increasing tensions between spouses. In the past year, additional restrictions due to the COVID-19 pandemic have worsened the whole situation, resulting in a growing number of divorces.

If one or both parties have concluded that the only way to resolve a dead-end situation is divorce, some aspects need to be taken into account.

Q1: What are the first steps when starting divorce proceedings?

The first, and probably most important, consideration before starting divorce proceedings is to let your spouse know that the marriage is not working, and you want a divorce.  Trying to resolve all issues pertaining to divorce can potentially save a lot of time, money and stress in the divorce proceedings.

Ambushing your spouse with a process server and throwing him/her the divorce papers is seldom a good idea.

To start matrimonial proceedings, a Petition for Divorce will be issued, which contains the grounds upon which you are filing for divorce. The petition will state that the marriage has broken down irretrievably – including listing particulars that led to the marriage breakdown – and ask that the marriage be dissolved, also specifying other matters involving children custody/access and matrimonial assets separation.

After filing, the Petition for Divorce will need to be served to the other spouse. The Family Court will then deal with the divorce. If it is undefended – which means that the other spouse is not disputing it – an application for a Decree Nisi will follow.  After the grant of the Decree Nisi has been obtained, the Family Court will grant a Decree Absolute which basically dissolves the marriage. If the petition is defended, the spouse will need to apply to the Family Court to get a trial date to discuss the disputed issues.

Q2: What are the specific grounds for divorce in Hong Kong?

Specific grounds for divorce are clearly stated in the Matrimonial Causes Ordinance, Cap. 179 and deemed by the Family Court as necessary to demonstrate that the marriage has broken down irretrievably:

• adultery;
• unreasonable behaviour;
• one-year separation (with consent of the other spouse);
• two-year separation (without consent); and
• desertion for a continuous period of one year.

Q3: Does the place of marriage make any difference when filing a Petition for Divorce?

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.

However, as Hong Kong does not properly recognise same sex marriage, divorce of same-sex couples cannot be carried out in Hong Kong.  Polygamous marriage also cannot be dissolved in Hong Kong.

Q4: In which jurisdiction should I file for divorce?

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 party was domiciled in Hong Kong on the date of the petition or application; either party was normally resident in Hong Kong throughout a period of 3 years immediately preceding the date of the petition or application; or either party had a “substantial connection” with Hong Kong on the date of the petition or application.

In general, no Petition for Divorce can be presented to the Court before the expiration of the period of one year from the date of the marriage. Possible exceptions to this one-year rule are either exceptional hardship being suffered by the petitioner or exceptional depravity on the part of the respondent.

It is key 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 among countries over financial arrangements or implications about child custody and access.

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 child custody and access.

It is important to remember that although a divorce decree granted by the Court in Hong Kong 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.

Q5: Should I consider a joint application with my spouse?

You can submit a divorce application together with your spouse, provided that both individuals are already in agreement and are happy to apply jointly. If a prenuptial agreement has already set up details in case of divorce, separation agreements that do not involve any legal dispute will likely achieve a more amicable settlement. However, if you anticipate disputes arising from the divorce itself, or on financial and/or child issues, you are strongly advised to retain a family lawyer to make a difficult situation more manageable.

Q6: What are the most important elements I should look for when retaining a family lawyer?

First of all, it is crucial to establish a strong rapport with your divorce lawyer based on trust. From the start, it is important to provide him/her with all relevant details regarding your matter, including documentary evidence that allows him/her to properly advance the case and for you obtain a satisfactory outcome.

Your lawyer will guide you through the process and make sure you make well-informed decisions, which should be driven by facts rather than emotions. In the long run, achieving fair and reasonable outcomes related to financial issues and/or child matters will ultimately allow you to move on and properly rebuild your life.

Ask questions that enable you to fully understand why specific advice has been given, such as why is a counsel to be involved in Court hearings?

Secondly, consider whether your divorce lawyer is helping you to resolve your dispute, with a forward-looking and resolution driven attitude. Parties in most of the contentious divorces are filled with emotions, it is often down to the divorce lawyer to put the parties’ situations in perspective, instead of focusing on who is wrong and who is right.

Finally, Court proceedings are only one of the many ways to resolve disputes and are often the most time consuming and stressful solution.  When disputes arise, the parties may be required to file long affidavits or make extensive disclosures, which is itself a painful process.  There are other methods to resolve disputes and divorce lawyers should be able to advise and assist clients to resolve disputes through such means.

Q7: How long do divorce proceedings last?

Getting a divorce in Hong Kong normally takes four to six months, provided that both spouses can agree on the terms and will not raise further complications during the proceedings. In reality, many divorce cases present complex issues, especially in terms of children and/or division of the matrimonial assets. Sad but true, some proceedings might even last years.

Q8: Can I remarry immediately after divorce has been finalised?

Yes, a new marriage license can be obtained after a Decree Absolute is granted, making divorce fully effective.  The length of time to obtain for the grant of a Decree Absolute can vary, in most circumstances upon the adjudication and approval of financial settlement and child arrangements.

A notice of intended marriage is valid for three months and becomes void upon expiry. A couple who intends to marry must celebrate the marriage within three months from the date of giving such notice. Otherwise, the notice expires and the parties need to submit a new notice before the marriage can take place.