III. Pre-conditions for divorce

If you want to petition for a divorce on your own account, basically you have to fill in a petition form and take it personally to the Family Court Registry, M2, Wanchai Law Courts, Wanchai Tower, 12 Harbour Road, Hong Kong.

If you and your spouse have agreed to apply jointly to the Court, you should fill in a joint application form together, and submit it as above.

A. Will I need a lawyer?

Probably yes. Submitting a petition or joint application for divorce puts legal proceedings in motion, so you will find it very helpful and safe to seek legal advice before any submission to the Court is made.

You will particularly need a lawyer in the following circumstances:

• your spouse does not agree to a divorce;
• neither of you can agree on the arrangements to be made for the children or on financial matters.

Each year, the Law Society of Hong Kong publishes a Directory of Hong Kong Law Firms which includes a list of firms handling matrimonial cases. This directory can be found and consulted in the Public Enquiry Service Centres of District Offices, public libraries, and at the office of the Law Society of Hong Kong.

B. What can I do if I cannot afford to retain a lawyer to represent me in divorce or matrimonial proceedings?

Application for free or subsidised legal assistance

In seeking legal advice, you may approach the Free Legal Advice Scheme administered by the Duty Lawyer Service (Tel. 2835 2500).

In seeking legal representation in court, you may try to apply to the Legal Aid Scheme administered by the Legal Aid Department (Tel: 2537 7677), or to the Bar Free Legal Service Scheme administered by the Hong Kong Bar Association (E-mail: bflss@hkba.org ).

Please also note that while the staff of the Family Court Registry will give information relating to divorce procedures, they are not lawyers and they are not permitted to offer legal advice.

C. Can I get a divorce in Hong Kong? What conditions do I need to comply with?

You should note the following items 1 to 3 before presenting a divorce petition to the Court.

1. Place of marriage

The place of marriage is not of main concern. Provided that your marriage was validly constituted in the country where the marriage was celebrated, and the validity of your marriage can be proved, then subject to the following factors, you can apply for divorce in the Court of Hong Kong.

2. Conditions to comply with

One of the following conditions must be satisfied before an application or petition for divorce can be dealt with by a Hong Kong Court:

1. either of the parties to the marriage was domiciled in Hong Kong (Note) on the date of the petition or application;
2. either of the parties to the marriage was habitually resident in Hong Kong throughout a period of 3 years immediately preceding the date of the petition or application; or
3. either of the parties to the marriage had a “substantial connection” with Hong Kong on the date of the petition or application.

It is pertinent 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.

(Note: There are a number of ways in determining whether a person is domiciled in Hong Kong. For example, people would be considered domiciled in Hong Kong if they are holding Hong Kong Permanent Identity Cards, or they are Chinese citizens who have ordinarily resided in Hong Kong for a continuous period of not less than seven years.)

3. Length of marriage

The “one year rule”

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 1 year from the date of the marriage ( section 12 of the Matrimonial Causes Ordinance , Cap. 179 ).

There are 2 possible exceptions to this “one year rule” :

• exceptional hardship being suffered by the petitioner (“petitioner” being the applicant or the party presenting the petition for divorce); or
• exceptional depravity on the part of the respondent (“respondent” being the applicant’s spouse / petitioner’s spouse).

However, in determining the application for divorce before the expiration of the period of 1 year from the date of the marriage, the Court shall have regard to the interests of any child of the family within the meaning of section 2 of the Matrimonial Proceedings and Property Ordinance , Cap. 192 (which can also include a child who is not the natural child of one of the parties to the marriage) and to the question whether there is reasonable probability of a reconciliation between the parties during the remaining period before one year has expired.

D. Shall I choose to apply for divorce in Hong Kong?

1. Alternative option

Given the fact that Hong Kong is an international financial centre, it is common in Hong Kong for either or both parties to a marriage to have a close connection with another country, this is particularly so among the expatriates.

It is important to consider from a pragmatic perspective whether or not Hong Kong is the best place to initiate the divorce proceedings. The following factors are of relevance:

• How each country under consideration deals with divorce, the custody of children, and the financial matters － there may be vast significant differences, particularly over financial matters.
• For instance, in the US and Canada, they have ‘community property’ laws, so that “marital property” (i.e. property acquired during the marriage) is divided equally on divorce.
• One cannot obtain a divorce in Australia or New Zealand until you have been separated for a year. New Zealand courts approach the division of capital assets in a similar way as in the States and Canada and do not place as much emphasis on maintenance rights as the courts in Hong Kong do.
• Also, although the systems of divorce in Hong Kong and in England and Wales are very similar, they are not identical.
• It is important to have regard to the ease of enforcement of any court orders obtained against his or her spouse. For example, if your spouse refused to pay alimony, what action can be done against his or her assets? (It is usually convenient and most beneficial to charge or freeze against his or her assets when the court orders are made in the country in which the non-complying spouse lives and/or the main family assets are situated).
• It is usually more convenient to initiate the divorce proceedings in the country in which you reside because of the easier access to your lawyers and attendance in court if necessary.

If either or both parties to the marriage have substantial or close connections with one or more alternative countries or if your spouse is intending to institute proceedings in one country when it occurred to you that the legal system of another country might be available and of greater benefit to you, then you should seek legal advice from a matrimonial lawyer in each country before starting any divorce proceedings in order to make an informed decision. This has to be done without delay, failing which time (which is closely related with costs) would be wasted.

If both parties commence divorce proceedings in different countries, it is likely that it would give rise to a costly dispute over 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 the important ancillary matters of children and finance.

2. Recognition of Hong Kong divorce decrees

For the sake of saving unnecessary costs, before you start the divorce proceedings, it is vital to check for 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.

Although the divorce decree granted by Hong Kong Court is recognized in many countries, it is not recognized in all places. In this regard, you should consult your lawyers.

E. Other than the marriages registered under the Marriage Ordinance in Hong Kong, what other types of marriages are recognized by Hong Kong law? Can a couple whose marriage is registered in a foreign country, or a couple married through traditional Chinese customs, or a non-registered couple apply for divorce in Hong Kong?

1. Registered Marriage

Since 7th October,1971, a couple in Hong Kong can only validly marry in accordance with the Marriage Ordinance ( Cap. 181 of The Laws of Hong Kong). This generally means that it must be a voluntary union for life of one man with one woman to the exclusion of all others and that the marriage ceremony must be carried out at one of the Marriage Registries or licensed places of worship. This is called a registered marriage.

2. Foreign Marriage

A foreign marriage celebrated outside Hong Kong in accordance with the law in force at the time and in the place where the marriage was performed is generally recognized as a valid marriage similar to a marriage registered in Hong Kong.

3. Chinese Customary Marriage and Modern Marriage

However, apart from registered marriages and foreign marriages, the law also recognizes as valid 2 other types of marriage if they were contracted in Hong Kong before 7th October, 1971.

• • Chinese Customary Marriage
    The first type is Chinese customary marriage. It is a marriage celebrated in accordance with the traditional Chinese customs that were accepted at the time of the marriage, either in the part of Hong Kong where the marriage took place, or in the parties’ family place of origin, usually their native place in China.
  • Modern Marriage
    The other type is called a modern marriage, which is one where an unmarried man and a woman neither of which was less than 16 years of age went through an open ceremony in the presence of at least two witnesses in such a manner that a reasonable person would think that a marriage has been celebrated.
    For this type of marriage, the kind of marriage ceremony performed did not have to be in accordance with formal Chinese law and custom, it would be valid and subsisting as long as a reasonable man thinks a marriage had taken place.
    It is important to note that the ceremony had to be ‘open’ in the sense that it was so held that it was known and could be seen by all those who were not particularly invited to participate. This requirement would be satisfied by, for example, leaving the door of the room in which the ceremony took place open. This type of marriage is also called validated marriage.

  Parties to these 2 latter types of marriage (Chinese customary marriage and modern marriage) can have them post-registered at the Marriage Registry. If one party refuses to post-register it, the other may apply to the District Court for a declaration that such a marriage exists and thereafter can post-register it unilaterally.

  Parties to a registered marriage or a foreign marriage seeking a divorce must go through the Family Court of Hong Kong.

  To obtain a divorce in a Chinese customary marriage situation, the party or parties must first of all have the marriage post-registered or declared valid by the District Court. If the parties agree to divorce, they must go before a designated public officer who will explain the consequences to them and ask them to sign an agreement. If only one party wants a divorce, he or she can apply to the court in the usual way , but only after the registration or declaration of the marriage as stated above.（Please refer to Divorce > Procedures and grounds for divorce ).

  In the case of a modern marriage , if both parties agree, they can divorce by going before a designated public officer and by signing a written document. The written document sets out unequivocally the final and complete dissolution of the marriage and must be signed in the presence of 2 witnesses.

  Either party to these 2 types of marriages can, upon divorce, apply for maintenance (financial support) if the need arises.

  F. Will a concubine and the relevant children be legally recognized? Can they be parties in divorce proceedings?

  Since 7th October, 1971, no man can lawfully take a concubine in Hong Kong. But in the case of a Chinese customary marriage, concubines taken before that date will be recognised and their children will be considered legitimate.