Divorce Law Basics in Hong Kong
Navigating through a divorce is daunting. Emotional cobwebs become entangled with legal complexities that add pressure to an already difficult situation.
What should you expect when divorcing in Hong Kong? Whether you are a local Hong Kong citizen or expatriate living in Hong Kong, it is important to understand the divorce laws in Hong Kong. For expatriates in particular, it is important to understand divorce laws in Hong Kong so you can make an informed decision on whether to file for divorce in Hong Kong or your originating home country.
When you divorce in Hong Kong, there are three key issues to consider. Think of these three issues being on three separate roads, meaning each flow separately from one another and are dealt with in three separate blocks:
- Dissolving the marriage: This is called the Divorce Main Suit.
- Children: Children’s issues usually revolve around custody, care and control and access to the children.
- Ancillary Relief: In Hong Kong, ancillary relief relates to finances meaning issues surrounding the distribution of assets, and any other financial matters relating to you and the children.
When you make the difficult decision to divorce, the first thing you will need to do is file an Application for Divorce/Petition for Divorce. What you are essentially saying by filing the Petition for Divorce is that the marriage has broken down irretrievably. In the Petition for Divorce you will then need to state the reason for the divorce. In Hong Kong there are 5 grounds for divorce which you will need to choose between. The 5 grounds for divorce in Hong Kong are as follows:
- Unreasonable Behaviour
- One Year Separation with Consent of the Other Party
- Two Year Separation Without Consent
- Desertion (for at least a period of one year)
It is interesting to note that if you decide to file for divorce in Hong Kong, you can file on the basis that your spouse has committed adultery, which is very different from for example no-fault regimes in the United States where adultery is not a basis for divorce and irrelevant.
Once you file a Petition for Divorce, your spouse will have the opportunity to either “defend” the divorce or proceed with an “undefended” divorce. If undefended, meaning there is no dispute as to the grounds for divorce, then you will apply for a Decree Nisi which is the first and necessary step to receiving a Decree Absolute (which means you have successfully dissolved the marriage and the divorce is final). If on the other hand, your spouse decides to defend the divorce then you will need to file papers to set a date for trial on the issue of the Divorce Main Suit.
Separate to the Divorce Main Suit, you will also need to resolve the outstanding issues of your divorce related to children (if any) and ancillary relief. Obviously you and your spouse can attempt to resolve these issues through mediation. If however, you are dealing with a contentious spouse you will need to seek assistance from the Family Court. The Family Court will then set dates and hearings for each issue to move your case along so there is finality on the children and ancillary relief.
In Hong Kong, children issues are broken down into three areas: custody, care and control and then access. As a general principle and similar to many other jurisdictions, the Hong Kong Family Court will look to the best interests of the children. When it comes to ancillary relief, the underlying position of the Family Court is to award a 50% split of assets which is the starting point to division.
For more a more detailed view of children and ancillary issues, you can look at the other articles on our website.