Droit de la Famille

Divorce Frequently Asked Questions (FAQS)

DIVORCE

1. I want a divorce.  What steps do I need to take to start the process?

There are three (3) matters to consider when dealing with divorce:

a. Dissolving the marriage (Divorce Main Suit)
b. Children (custody, care and control, access)
c. Ancillary Relief (Distribution of assets, financial matters relating to you and the children)

If you would like to commence divorce proceedings, the first thing you will need to issue an application for Divorce or a Petition for Divorce.  The Petition for Divorce will list the grounds upon which you are filing for Divorce (see more below for more detail).   In the Divorce Petition, it will state that the marriage has broken down irretrievably and if necessary, particulars of why the marriage has broken down will be outlined in more detail along with what you are asking  for including that the marriage be dissolved and other areas to be dealt with including property division and your proposal for the children.

Once the Petition for Divorce is filed, the Petition will need to be served upon your spouse.  The Family Court will then deal with the Divorce in three sections as listed above.

If your Divorce is undefended, meaning there is no dispute as to the ground for Divorce, then you can apply for a Decree Nisi.  After the grant of the Decree Nisi, the Family Court will later grant a Decree Absolute which dissolves the marriage.

If the Divorce Petition is defended then you will need to apply to fix a date for trial on the issue of the main suit.

2. Is “fault” a factor in the divorce process? What are the grounds for divorce in Hong Kong?

The grounds for divorce are found in the Matrimonial Causes Ordinance (Cap. 179, Section 11A of the Laws of Hong Kong).

Under this section these are the following grounds for divorce, which will need to be deemed satisfied by the Family Court in order to find that the marriage has broken down irretrievably:

a. Adultery
b. Unreasonable Behaviour
c. 1 Year Separation with consent of the other party
d. 2 Year Separation without consent
e. Desertion by your spouse for at least a period of 1 year
f.  Joint Application

3. How soon before I am divorced and can re-marry again?

You may re-marry after a Decree Absolute is granted.  The timeline for the grant of a Decree Absolute varies and is dependent upon adjudication of financial and custody arrangements for the children are approved. For this reason, among others, there is incentive for divorcing couples to seek assistance through mediation rather than through the court.

4. How much will it cost to obtain a divorce?  

The cost of your divorce will depend on how complicated it becomes and whether you and your spouse can agree on outstanding issues.  Divorce becomes increasingly costly if you and your spouse cannot agree on certain issues and require the ongoing assistance of solicitors and barristers to resolve these issues.

The most cost-effective way to resolve your Divorce is through mediation or through mutual agreement between you and your spouse on key issues.

JURISDICTION

5. I am a resident of Hong Kong but I was married in another jurisdiction.  Can I still get a divorce in Hong Kong?

So long as you were validly married in another jurisdiction and can provide a Marriage certificate, then you can apply for divorce in Hong Kong.

To file a Petition for Divorce in Hong Kong, you will need to show to the Family Court one of the following:

a. Domicile:  Either you or your spouse was domiciled in Hong Kong on the date of the Petition
b. Habitually Resident:  Either you or your spouse was habitually resident in Hong Kong for a period of 3 years immediately preceding the date of the Petition
c. Substantial Connection: Either you or your spouse had a substantial connection with Hong Kong on the date of the Petition

These facts will need to be addressed in the Divorce for Petition to show the Family Court that the Family Court has jurisdiction over the matter.

Please note that you will be required to provide your Marriage Certificate or a certified true copy when filing a Divorce for Petition.  It is important to note that once the Divorce for Petition is filed with the Marriage Certificate, you will not receive the Marriage Certificate back.

CHILDREN

6. How does the court deal with custody in divorce?

In Hong Kong, children issues are broken down into three areas:  custody, care and control and access.

In Hong Kong, you will either be granted “sole” custody over the children or share “joint” custody with the other parent.  Generally speaking however, whether you receive sole or joint custody makes little difference because each parent will always have a right to be consulted over major issues with respect to the children such as education, religion and health.  Even if you are granted “sole” custody, the other parent can veto your decision by bringing this to the Family Court. In Hong Kong, the Family Court is likely to grant to you and the other parent “joint” custody, meaning the two of you will be able to make joint decision relating to the children on major issues such as country of residence, education, religion and health.

Care and control refers to the parent who will be responsible for the day-to-day decisions related to the children and whom the children will be living with on a day-to-day basis.  The Family Court however has made orders where parents have shared care and control, which is similar to many of the orders provided by courts in international jurisdictions. 

In cases where one parent has care and control, then there will be an order for reasonable access.  This is the amount of time the non-custodial parent will have access to the children, whether it be by agreement between the parties or by an order of the Court. 

When making orders relating to the children, the Family Court will look to the best interests of the children (“the Welfare Principle”).  The relevant factors may include the following:

a. Preservation of status quo
b. Age, sex and background of the parents and children
c. Personality, capability and character of the parents
d. Financial resources of the parents
e. Physical and mental health of the parents and the children
f. Accommodation for the Children
g. The children’s wishes/views
h. Benefit of keeping the siblings together with one parent
i. The religion and culture of the family
j. Professional reports
k. Suffering/risk of suffering of the children including any history of family violence
l. Any other fact or circumstances that the Family Court thinks are relevant

As a principle, it is always best when you and your ex-spouse can agree on a parenting plan, whether it is agreed upon between the two of you or through the assistance of a mediator.  Litigation involving the children can become quite costly. Conflict over the children will also result in the Family Court ordering a Social Welfare Report prior to making any orders related to the children and this is stressful not only for you and also your ex-spouse but also upon the children.

7. Is the Hong Kong divorce process typically preferential towards women and mothers?

Not necessarily.  While there may be a perception that there is a general stereotype that the Family Court in Hong Kong is partial to women mothers over men/fathers, it is simply that, a perception.  The Hong Kong Family Court will look at various factors as noted above when dealing with custody, care and control and access issues and the outcome depends on the circumstances of each specific case.

8. I want to move and take my children out of Hong Kong.  Can I do that and what is the procedure to remove the children from Hong Kong? 

If you want to take the children out of Hong Kong, whether temporarily (e.g. For holidays) you will need consent from the other parent.  Generally speaking, a Consent Summons and Order can be drafted outlining the dates you will be removing the children from the jurisdiction of Hong Kong.  In this Consent Summons and Order, you will need to undertake that you will return the children back to Hong Kong after the end of the holidays.

If you want to take the children out of Hong Kong and move to another jurisdiction permanently, you will require consent from the other parent.  

If the other parent does not consent to the removal of the children (temporarily or permanently), you will need to speak to your legal representative and make an application to remove the child/children from the jurisdiction of Hong Kong.

To remove the children out of the jurisdiction of Hong Kong without consent or proper order the courts will view this as wrongful removal and child abduction.

ANCILLARY RELIEF

9. How does maintenance for a spouse play into divorce proceedings?  

When determining maintenance, the Family Court will look to each specific circumstances including the following:

a. Income, earning capacity, property and financial resources now and in the foreseeable future
b. Financial needs, obligations and responsibilities
c. Standard of living enjoyed by the family prior to the breakdown of the marriage
d. Age of each party and the duration of the marriage
e. Physical or mental disability of either of the parties
f. Contributions made by each party to the welfare of the family including taking care of the family
g. Value to either of the parties of any benefit which that party will lose as a result of the breakdown of the marriage
h. Conduct and all circumstances of the case

Pending the determination of maintenance, you may also consider applying for maintenance pending suit.  This order may be varied upon the final divorce decree as this is only temporary.

Other ways in which the Family Court may deal with finances include periodical payments, secured periodical payments, order for the sale of property and property adjustment orders. 

10. What about division of assets?  What is the court’s position, is it generally a 50/50 split of assets?

The Court of Final Appeal has ruled that a wife is entitled to half of the assets when they divorce in Hong Kong (LKW v DD (2010) 13 HKCFAR 537)

In addition to the split of assets, a wife may also be entitled to periodic maintenance.  In some cases, however, the Family Court may consider to order a “clean break” meaning the termination of financial dependency on one party against the other and distribution made in a lump sum (sometimes in installments).  This is usually appropriate when there are sufficient resources to result in a clean break, meaning there is sufficient capital to pay such a lump sum payment.

11. What basis is child maintenance awarded? 

The parent with care and control will be entitled to request financial support for the children.  Many times, pending the determination of the divorce proceedings, there will be a need for immediate financial assistance with respect to the children.  In such circumstances, you may make an application to the Family Court for interim maintenance pending suit for the children.

In determining child maintenance, the Family Court will look at all circumstances including but not limited to the following:

a. Financial needs of the children
b. Standard of living enjoyed by the family
c. Physical and mental disability of the children
d. Manner in which the children were brought up and the expectations of the parties for the children to be educated
e. Financial resources and needs or obligations of the parties to the marriage
f. Any income, earning capacity, property or other financial resources of the children

Essentially the Family Court is trying to place the children, as far as practicable in a financial position similar to what the children would have been if the marriage had not broken down.

It is important to note that maintenance with respect to the children can be varied at any time both prior to a Decree Absolute and more after.

MEDIATION

12. Can I attend mediation instead of going through the court system?

Yes, if you and your spouse agree, you can attend mediation instead of seeking the assistance of the Family Court for outstanding issues. The whole purpose of mediation is to avoid emotionally and financially draining litigation and thus find a workable solution.  It is important to note that mediation is not marriage counseling and a separate psychological professional would be needed for such purpose.

Mediation can be conducted by way of individual and/or joint sessions. If you or your spouse enlist the representation of a solicitor, your solicitor can assist you in the mediation process as well.

Depending on the complexity of the outstanding issues, mediation sessions can take as little as a day and can extend to an intermittent period of several months.

Mediation is confidential which the mediator will explain at the outset.  Mediation is also cost-effective compared to litigation and a more civilised option to resolve outstanding issues.

PRE-NUPTIAL / POST-NUPTIAL AGREEMENTS

13. I am getting married.  Can you prepare a prenuptial agreement for me and my spouse?

Yes, we can prepare a prenuptial agreement. 

A prenuptial agreement is an agreement reached between you and your future spouse prior to marriage.  A prenuptial agreement will outline the rights and obligations of both you and your future spouse in the unlikely event of divorce.  Prenuptial agreements deal with financial issues, namely the division of property, maintenance for a spouse and other financial arrangements perhaps dealing with family businesses and trusts.

Strictly speaking, prenuptial agreements are not binding in Hong Kong.  However, they are becoming more and more common, especially among expatriate couples who have obtained prenuptial agreements in a foreign jurisdiction.

Even though prenuptial agreements are not strictly binding upon the Hong Kong courts, the Family Court may take the terms of the prenuptial agreement into consideration when making rulings in a divorce.

Generally speaking, a good prenuptial agreement will have been carefully read and understood by each party, each party will have provided full and frank financial disclosure of his/her financial positions, there was no duress or exploitation and each party will have received independent legal advice.

14. I am married and would like a postnuptial agreement.  Is this something you can prepare for me?

Yes, we can prepare a postnuptial agreement.

A postnuptial agreement is an agreement reached between you and your spouse during the marriage.  A postnuptial agreement will outline the rights and obligations of both you and your spouse in the unlikely event of a divorce.  The difference between a prenuptial agreement and a postnuptial agreement is when the agreement is prepared and signed.  A postnuptial agreement is an agreement reached during the marriage, while a prenuptial agreement is an agreement reached prior to a marriage.

Similar to prenuptial agreements, postnuptial agreements are not binding in Hong Kong. However, like prenuptial agreements, the Family Court may take the terms of the postnuptial agreement into consideration when ruling.

Similar to prenuptial agreements, the postnuptial agreement should be understood by each party, each party will have provided full and frank financial disclosure, there was no duress or exploitation and each party will have received independent legal advice.

SEPARATION

15. I am not ready for a divorce but would like a judicial separation. Is this possible?  What about annulment?

Yes, if you are not prepared to file for Divorce, then another option would be a Judicial Separation.  You can apply for a Judicial Separation and must be present one of the two (2) grounds namely adultery or behaviour in your application.  Here, the Family Court will grant the Judicial Separation if the Family Court is satisfied with the arrangement of the children (if any). 

It is important to note however, that if you obtain a Judicial Separation you are not divorced and therefore not free to re-marry.  Thus, if you later decide you would like a divorce, then you will need to commence a separate and new Divorce action.

Many times, an individual may choose a Judicial Separation due to religious/moral reasons or to prevent the loss of financial or trust benefits for one spouse.

On the other hand, if you are seeking an annulment or a “nullity” in Hong Kong, the court will look at whether the marriage was properly formed or not which could cause the marriage to be considered invalid.  A marriage which is invalid can be either “void” or “voidable” meaning that if it’s considered “void”, it never took place before and if “voidable” then it will require a Decree of Nullity because without it then the marriage is still valid.

A void marriage is for example, bigamous, such as marrying a family member.  A voidable marriage is if at the time of marriage any of the following grounds apply:

a. No consummation due to the incapacity of either party to consummate the marriage

b. No consummation due to the willful refusal to consummate the marriage

c. Either party did not validly consent whether in consequence of duress, mistake, unsoundness of mind or otherwise

d. Either party, though capable of giving valid consent, was suffering from a mental disorder within the meaning of Mental Health Ordinance (Cap 136) of such a kind/extent to be unfit for marriage

e. A party was suffering from venereal disease in a communicable form

f. A party was pregnant by some person other than the other party

SURROGACY

16. What about surrogacy agreements. Is this possible in Hong Kong?

In Hong Kong, overseas surrogacy agreements are not enforceable and Hong Kong commercial surrogacy agreements are illegal.  It is regulated by the Parent and Child Ordinance.  Surrogacy is rare in Hong Kong but it is an option for married couples overseas and returning to Hong Kong under strict rules and guidelines imposed.  Once a baby is born, the parents will need to apply for a parental order so long as certain conditions are met including but not limited to domicile, habitual residence and substantial connection of the parents with Hong Kong.  There are also certain conditions that surrogate mother herself will need to meet including being over the age of 21 years old.

If you are considering surrogacy, it is important to consult with a qualified professional familiar with the laws of Hong Kong to ensure that no illegal activity is committed, including activity committed inside or outside of Hong Kong.

SAME-SEX PARTNERSHIPS

17. Are same-sex marriages recognized in Hong Kong?

Same-sex marriages are not recognized under Hong Kong law and thus a valid marriage under Hong Kong law is heterosexual and not open to couples of the same sex.  Parties must be male and female to have the capacity to marry in Hong Kong.

18. My partner and I are not married, but we live together.  What rights do I have in the event of a split in our relationship? 

Unmarried couples are not entitled to the same rights as those of married couples.  Therefore, even if you have lived together as a couple for years upon years, the Hong Kong courts will not recognize you and your partner as a married couple or a “common” law couple as some international jurisdictions recognize.

However, cohabitating couples may be protected under certain ordinances such as the Domestic and Cohabitation Relationships Violence Ordinance (Cap. 189) which is for those who are the unfortunate victim of domestic violence as a result of the relationship.

If you and your partner have a child/children, then the issues with respect to the child/children will be dealt with under a different ordinance called the Guardianship of Minors Ordinance (Cap 13). Under the GMO (Cap 13) the Family Court will still look at all of the circumstances surrounding the matter and will look to what is in the best interests of the child/children.

OTHER RESOURCES

19. Can you point me to any online resources so I can obtain more information about custody and financial support in divorce in Hong Kong?

HKSAR Judiciary: 

https://www.judiciary.hk/en/index/index.htm

Matrimonial Causes Ordinance (Cap 179): 

https://www.elegislation.gov.hk/hk/cap179

Matrimonial Causes Rules (Cap 179A):

https://www.elegislation.gov.hk/hk/cap179A

Matrimonial Proceedings and Property Ordinance (Cap 192)

https://www.elegislation.gov.hk/hk/cap192

Guardianship of Minors Ordinance (Cap 13)