One of the first questions to consider before filing a Petition for Divorce is whether there is jurisdiction. Many individuals mistakenly believe that because they were married in Hong Kong, the Hong Kong courts will have jurisdiction to oversee their divorce. In fact, this is not a true fact and just because you were married in Hong Kong does not automatically give you standing to file for Divorce in Hong Kong.
Rather than look at where you were married, the Family Court in Hong Kong will look at the circumstances prior to the divorce to determine whether the Family Court has jurisdiction. To be able to file for Divorce in Hong Kong, the Husband or Wife must fall within one of these categories pursuant to Section 3 of the Matrimonial Causes Ordinance (Cap. 179):
- Husband or Wife is domiciled in Hong Kong at the date of the Divorce Petition;
- Husband or Wife has been habitually resident in Hong Kong for three (3) years immediately before the Divorce; or
- Husband or Wife has a substantial connection with Hong Kong at the date of the Divorce Petition.
You might be asking what does this mean? Well let’s tackle each category because each category has a specific meaning under the law.
Domicle: Under the Domicile Ordinance (Cap. 596), it states the following:
- Every individual has a domicile;
- No individual has, at the same time and for the same purpose, more than one domicile.
- Where the domicile of an individual is in issue before any court in Hong Kong, that court shall determine the issue in accordance with the law of Hong Kong.
Thus, under the Domicile Ordinance, an individual does not acquire a domicile in Hong Kong unless he/she is lawfully present in Hong Kong and this is presumed to be lawful unless the contrary is proved and he/she intends to make a home there for an indefinite period. Pursuant to the Domicile Ordinance, the court will look at the country or territory with which an individual is for the time being most closely connected and this is taken as a relevant matter.
Many times, individuals believe that holding a Hong Kong permanent identification card is sufficient to prove that he/she is “domiciled” in Hong Kong however, it is important to note that this alone is not sufficient evidence to support “domicile” in Hong Kong. In the event that you and your partner cannot establish “domicile” then you will need to consider the other two options of habitual residence or substantial connection.
Habitual Residence: Habitual residence is where an individual states that he/she voluntarily lives in Hong Kong and has done so three (3) years immediately prior to the filing of the Divorce Petition. Habitual residence is based on fact and a finding by the Family Court that either spouse was habitually resident or domiciled in, or a national of, the place in which the divorce or legal separation was obtained.
If you and your spouse cannot establish domicile or habitual residence, then the final option to be able to file a Petition for Divorce in Hong Kong is under substantial connection.
Substantial Connection: Under substantial connection, the Court will look at various factors at the date of the Divorce Petition including the following:
- Employment in Hong Kong
- Schooling of your children
- Place of Matrimonial Home/Place of Family Assets
- Nature of Stay in Hong Kong
The exercise of determining substantial connection is a question of fact. The Family Court in Hong Kong will conduct a two-stage enquiry, first determining whether a connection to Hong Kong exists and then determining whether the connection is substantial. It is through this exercise of looking at all relevant factors and circumstances that the Court will then determine whether an individual does in fact have a substantial connection to Hong Kong.
With that being said, if you are living abroad but come in and out of Hong Kong to do business, you may be tempted to establish substantial connection to Hong Kong for jurisdiction purposes, but it is important to note that the Court will look at all factors and will want to see that your connection to Hong Kong is in fact “real” and not made up in order to establish jurisdiction. Thus, fly in-fly out individuals will not be able file for a Divorce Petition under substantial connection.
Before you proceed forward with your Divorce Petition, it is important to speak with a solicitor and discuss whether there is jurisdiction in Hong Kong. Remember, just because you were married in Hong Kong does not allow you an automatic right to file for Divorce in Hong Kong. Speak to your solicitor about whether you are able to file in Hong Kong and what you need to provide in order to show to the Family Court that Hong Kong is the appropriate jurisdiction.