Increasingly, we live in a world without borders. Parties may have assets in multiple countries, travel frequently, reside in different parts of the world at different times throughout the year and have various ties to several different countries. It is no surprise then that questions regarding the correct or most suitable jurisdiction to begin divorce proceedings are becoming more common and more complicated. This is particularly true of Hong Kong, an international hub of commerce with an ever-increasing expatriate population in close proximity to China.

This article addresses the foundational question of whether a person considering divorce meets the criteria allowing Hong Kong Courts jurisdiction to deal with their divorce.

Related to this are questions as to parties’ options if there are proceedings going on elsewhere – can they be stayed in favour of the Hong Kong Courts or vice versa, can Hong Kong proceedings be stayed in favour of parallel proceedings going on in another country? This is addressed in a separate article (Link).

The Court can assume jurisdiction of divorce proceedings if:

• Either of the parties to the marriage was domiciled in Hong Kong at the date of the petition for divorce;
• Either of the parties to the marriage was habitually resident in Hong Kong throughout the period of 3 years immediately preceding the date of the petition or application; or
• Either of the parties had a substantial connection with Hong Kong at the date of the petition or application.

1 – Domicile

Every individual has a domicile. As an adult, you usually retain the same domicile of where you were born unless you acquire a new domicile in a different country or territory. This is possible if (a) you are present there; and (b) intend to make that domicile your home for an indefinite period. No one can have more than one domicile at the same time.

In Hong Kong, the following factors are generally taken into account in determining whether or not a person has the requisite intention to make a home in a particular place for an indefinite period:

• Length of residence;
• Condition of residence (purchased property? Leased property? Furnished lodgings? Hotel?)
• Marriage with a local partner;
• Whereabouts of the family;
• Location of business interests;
• Location of personal belongings;
• Location of the individual’s personal property and investments;
• Naturalisation;
• Decision on the children’s nationality;
• Education of the children;
• Membership to clubs or religious associations;
• Place of work;
• Relationship to family members.

The above are guidelines, is not an exhaustive or determinative list. Different weight may be attributed to any one of these factors when the Court considers a party’s circumstances.

2 – Habitual Residence

Unlike domicile, a person may be habitually resident in more than one place. Habitual residence is a question of fact.

For three years prior to the date of the petition for divorce or application, one of the parties must have voluntarily adopted Hong Kong as his/her place of residence. There does not necessarily need to be an intention to stay indefinitely, but a sufficient degree of regularity continuity or to be settled in Hong Kong. The Court will consider the consequences of such residence, i.e. its effects on the spouse, and children of the marriage if any such that it would be just for the Hong Kong Courts to seize jurisdiction.

In the absence of domicile or habitual residence, a party seeking to divorce in Hong Kong must rely on having a substantial connection with Hong Kong.

3 – Substantial Connection

Whether a party has a substantial connection to Hong Kong will be a question of fact and circumstance particular to each case. A far wider range of considerations will be relevant than the other two grounds for eligibility as domicile has a strict legal meaning and habitual residence involves a more limited factual inquiry.

Again, a party may arguably have substantial connections to multiple jurisdictions, some of which may be stronger or more obvious than their connection to Hong Kong. This would not necessarily negate an individual’s ability to opt for Hong Kong as the jurisdiction in which he/she wishes to get divorced. The ultimate question is whether the connection is significant enough to justify the Courts of Hong Kong assuming jurisdiction over the case.

The following factors are indicative of a ‘connection’ to Hong Kong. Whether that connection would be considered ‘substantive’ depends on the weight attributable to each factor, and the findings of the Court:

• The parties’ physical presence in Hong Kong.
  • (i) If the parties travelled in and out of Hong Kong, the length and purpose of stay would be significant. For example, frequent same day returns and short overnight stays may not be sufficient.
• Where the parties work. If they commute frequently, where their home is.
• Where the matrimonial home is.
• Where the parties regard their home to be, even if their lifestyle may indicate that they may not take root in one place for too long a time.
• Where the children are. If the children are studying on a boarding basis, where they spend their vacations.
• The parties’ residency status.
• Conduct of the parties’ marriage in relation to Hong Kong – were they largely based in Hong Kong for the duration of the marriage, for instance?
• Other family ties
• Location of assets, business interests, and investments.

In the majority of cases, a party’s substantive connection to Hong Kong will be explored in the context of his/her marriage or family, although in an exceptional case, a person who is in Hong Kong without his family may still be able to establish a ‘substantial connection’. Further, the fact that the parties to a marriage may have only stayed in Hong Kong for a relatively short while or did not intend to stay in Hong Kong permanently would not prevent a substantial connection from accruing. However, if the main connection to Hong Kong is purely a business connection, a substantial connection is less likely to be found.

If any of the above three grounds are satisfied, an individual is eligible to seek their divorce in Hong Kong.

One Year Rule

Also note that 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.

There are 2 possible exceptions to this one year rule:

1. The petitioner for divorce has suffered exceptional hardship; or
2. There has been exceptional depravity on the part of the respondent (“respondent” being the applicant’s spouse / petitioner’s spouse).

These situations are exceptionally rare, and the court will usually not accept a divorce petition before the expiration of one year from the date of marriage.