Hong Kong is an international city with diversified culture. According to the Hong Kong Annual Digest of Statistic 2020, there were 21,157 divorce decrees in 2020. Chances are, many of these divorces have overseas connections – may they be expats, Hong Kongers who have lived abroad for some time or Mainland Chinese citizens who have married locals.
In any international divorce, forum shopping is unfortunately a norm and disagreements about forum and jurisdiction are common.
All family and matrimonial cases begin in the Family Court, though in some circumstances, when very complex legal matters are involved, they might be transferred to the High Court.
Elements needed for Hong Kong Courts to have jurisdiction
You have to satisfy the Family Court that the Court have jurisdiction to entertain your petition or joint application 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 your marriage is a valid one and is recognized in Hong Kong.
Hong Kong has jurisdiction to deal with the divorce if either spouse at the date of the application:
- is domiciled in Hong Kong, or
- has been habitually resident in Hong Kong for the previous 3 years, or
- has a substantial connection to Hong Kong.
In Hong Kong, domicile is governed by the Domicile Ordinance, Cap 596. Under this Ordinance, every person has a domicile and one domicile only, which can come in two forms:
- domicile of origin, and
- domicile of choice.
A person’s domicile of origin from birth follows his/her parents’ domicile, except in rare situations where the parents have different domiciles and live separately. The domicile of origin is retained until a new domicile is acquired by choice as an adult.
A domicile of choice is acquired through a person’s voluntary acts. Essentially, the Domicile Ordinance allows a person to acquire a domicile in Hong Kong if he/she is physically present in Hong Kong and demonstrates the intention to make a home in the territory for an indefinite period of time.
The question of habitual residence is generally not an issue, in fact the statute is very clear: if a person has been living and working in Hong Kong for the 3 years prior to the date of the divorce petition, then the jurisdiction criteria are met. Temporary trips overseas for professional or leisure reasons do not have any impact on the meaning of habitual residence.
The meaning of “substantial connection” has not been specifically defined in the Matrimonial Causes Ordinance, Cap 179. 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 taken employment in Hong Kong; and whether they have acquired assets or taken a lease of property in the territory.
A transitory nature that the parties have with Hong Kong does not translate into a substantial connection. The frequency and the purpose of stay (especially a family home for a couple and eventual children established in the territory) are crucial factors that the Court will consider. Previous employments, frequent business trips to the territory or having a local social network cannot themselves prove a connection that would allow local jurisdiction of the matter.
Furthermore, the fact that one or both spouses might hold the right of abode in the territory or that they own some financial assets (including bank accounts) and properties which are located in Hong Kong does not automatically mean that the connection is substantial, especially if it can be proven that there is indeed a real and substantial connection in another jurisdiction.
Whether you should start proceedings in Hong Kong
Forum shopping should be discouraged. You should only file for divorce in Hong Kong if Hong Kong Courts have jurisdiction and it is convenience to deal with the matter in Hong Kong.
Parallel divorce proceedings in different jurisdictions will jack up legal costs substantially. Further to the parties having to argue on the correct jurisdiction, they also often have to engage two teams of lawyers, one in each jurisdiction, to do so. It is also common that the parties will race to obtain the divorce decree in their preferred jurisdiction potentially multiplying the hostility of the matter, since the forum or the country in which the first decree is made will likely be the Court to also determine crucial ancillary matters (such as 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 a Hong Kong divorce decree is recognized by other countries. Also, whether a Hong Kong Court is a convenient forum to deal with the matter. Divorce proceedings can be lengthy and may require personal attendance at hearings from time to time.
It is essential to bear in mind that although a divorce decree granted by a 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.
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.
Originally published on Expat Briefing