Author Archives: Caroline

Managing Emotions During The Divorce Process

Anger, sadness, guilt, anxiety, grief and loss are just some of the various emotions that you may be experiencing as a result of your divorce. Due to this vortex of emotions, it is not uncommon for you to act in an uncharacteristic manner.

Acknowledging and being aware of your feelings during the divorce process is the first step in managing your emotions. It is the management of your emotions that will help you overcome some of the more difficult aspects of your divorce, in addition to building a foundation of peace and harmony with your former spouse as many of you will need to co-parent throughout your lifetime.

While many challenging issues must be addressed with the assistance of solicitors and the Family Law courts, many issues couples face can be resolved without the assistance of professionals and should be considered before calling professionals for help.  It should be noted that calling your solicitor every time you experience a stressful event is extremely costly and does not lay a foundation for problem solving once the divorce is complete. That is why it is important for individuals to think creatively and with an open mind about how to resolve issues on their own so that your well-earned money can be used for a useful purpose rather than towards solicitor fees and costs.

Here are some practical applications on how to manage emotions during the divorce process in hopes that it will ease the long and difficult divorce process.

  1. Flexible Thinking:  Flexible thinking means that you do not automatically reject what your former spouse may say when new ideas are discussed or decisions need to be made. This includes having the ability to think outside of the box and coming up with alternative proposals for problem solving rather than just fighting for your first and only idea.
  2. Check Yourself:  It is always important to check yourself and your reactions to your spouse. Are you saying no because you are angry and upset over what your spouse did to you in the relationship? Are you saying no to spite your spouse? Or are you making decisions based on the situation at hand and what is best for you and your family going forward? Ask these questions before you respond to your spouse. When you make decisions that are born out of a rational and calm thought-process, you may find that you are making better decisions.
  3. Focus on the Big Picture:  Look at the big picture and write your goals down on paper so that you can keep track of what you are hoping to accomplish at the end of your divorce and beyond. For example, if your goal is to be cost conscious, you may be inclined to take steps to reduce solicitor fees such as mediation versus litigation. Mediation will require you to be more willing to compromise rather than leave all decisions up to the Family Court.  If your goal is to make the divorce a peaceful and as seamless as possible transition for your children, you may think differently about how you react and respond to your spouse in front of your children.

With all of this being said, divorce is a difficult and long process, similar to a marathon.  It is important to allow yourself to indulge in the emotions you are feeling during the process. Be sure to contact trusted family and friends and seek professional assistance from psychological experts if you need a safe place to process through your emotions. Do your best however to keep your emotions out of the divorce process because divorce is essentially a legal business transaction.


Jurisdictional Requirements To File For Divorce In Hong Kong

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):

  1. Husband or Wife is domiciled in Hong Kong at the date of the Divorce Petition;
  2. Husband or Wife has been habitually resident in Hong Kong for three (3) years immediately before the Divorce; or
  3. 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:

  1. Every individual has a domicile;
  2. No individual has, at the same time and for the same purpose, more than one domicile.
  3. 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.





Clean Break In Divorce

When you divorce in Hong Kong, the term “clean break” may be floated around when discussing ancillary relief or financial provision (or more commonly known as “maintenance” in USA jurisdictions).  So what is a clean break in a divorce? Clean Break simply refers to the distribution of property and/or payment of a lump sum to settle all financial matters, allowing the parties to move forward with a fresh start and without having to be reminded of the breakdown of the marriage by being tied to ongoing payments.

Under section 7 of the Matrimonial Proceedings and Property Ordinance (Cap. 192), the courts in Hong Kong are under a duty “to have regard to the conduct of the parties and all the circumstances of the case” including the following matters:

  • The income, earning capacity, property and other financial resources…;
  • The financial needs, obligations and responsibilities…of the parties…;
  • The standard of living enjoyed by the family before the breakdown of the marriage;
  • The age of each party to the marriage and the duration of the marriage;
  • Any physical or mental disability of either of the parties to the marriage;
  • The contributions made by each of the parties to the welfare of the family…’
  • …the value to either of the parties to the marriage of any benefit (for example, a pension) which, by reason of the dissolution…of the marriage, that party will lose the chance of acquiring.

In Hong Kong, the courts are not under any duty to consider whether a clean break is appropriate or not but it may be considered.  Generally speaking, a clean break is only an option when there is sufficient monies in a matrimonial pot which would allow the parties to move forward after the payment of one lump sum payment/distribution of property which would settle all financial claims.

In one such case, C v F [2008] HKFLR 1, the parties had a long-term marriage which began in 1965 and a Petition for divorce was filed by the Husband in February 2000.  Throughout the marriage, the Husband’s business had grown to the extent that he valued his assets at approximately HK$36 million with an income of approximately HK$800,000 per month.  The Husband alleged he had considerable debts as he was heavily indebted to the company and to his business partner.  The court ordered a transfer of the former matrimonial home, mortgage free, to the wife and a clean break lump sum to her of HK$15 million.

In YN v NA [2014] HKFLR 517, the court stated that “in big money cases, where the matrimonial assets are sufficient for a clean break to be achieved, a wife with ordinary career prospects is likely to have been compensated by an equal division of the assets and consideration of how the wife’s career might have progressed is unnecessary and should be avoided.”

It should be noted that once a clean break is achieved, a party cannot come back to the court and make an application for maintenance.  This in itself is the benefit and advantage with respect to a clean break: it allows the parties to move on with their lives, without being tied to each other by having to make monthly payments to one party and allows each party to live independently without any burdens of the past.

If you are going through a divorce, speak to your solicitor about a clean break and whether it’s the right option for you.  If there is a possibility of self-sufficiency, a clean break should be considered an option.  If you are concerned about an immediate clean break, discuss alternative options such as a deferred clean break or even consider nominal maintenance which would then allow you an open door to make an application for periodical payments in the future if need be, but at the same time lift the financial burden on the paying party at the current moment.

Deed of Guardianship: Do You Need One?

The world is struggling with the Covid-19 pandemic and as a result, many individuals are taking into account the legal paperwork needed in the event of a “worst case scenario.”  One legal document that parents may want to consider is a Deed of Guardianship, which sets out guidelines for the caring and well-being of minor children in the event of both parents passing away.

A Deed of Guardianship is a legal document signed by both parents and two witnesses.  It is a document separate from a Will and unlike a Will, a Deed of Guardianship will set out specific guidelines regarding the care of your minor children in the event of passing.  A Deed of Guardianship will set out the minor children’s primary caretakers and can also identify temporary guardians until such time the minor children can be in the care of their permanent guardians.  Many times, individuals will also choose to create a separate document called a Temporary Deed of Guardianship, allowing parents to set out clear guidelines on who will be the children’s temporary guardians to assist in the care of the minor children and set out the intention of the parents pending a permanent move to the permanent guardian’s household.

Deed of Guardianships may be especially important to expatriates living in Hong Kong, especially when family members are not in the same jurisdiction.  For many expatriates, there is a concern that in the event of both parents’ death, the minor children would then be taken into government custody (eg. Social Services).  If this occurs, the government then makes a decision on who will be the appointed guardian.  Any disagreements among potential family member guardians can cause delay and result in the child/children remaining under the care of Social Services.  By having a Deed of Guardianship, the parents can have assurance on how and who  the children will be taken care of should the death of both parents occur.

It is important to speak with a solicitor who can draft a Deed of Guardianship on you and your spouse’s behalf.  You may also want to consider establishing not only the guardians, but also alternate guardians in the event the guardians pass away before your child/children reach the age of 18 (which is the age when the guardianship terminates) or if the appointed guardians is unable or unwilling to act as a guardian for the children.

Deed of Parenting

When you speak with your solicitor, you may also want to consider discussing a Deed of Parenting as well.  What is a Deed of Parenting? A Deed of Parenting simply states that you and your spouse are the legal parents of the children.  This is important in circumstances where you and your spouse are traveling cross-border and there is any question by immigration and customs officers as to the parentage of your children and whether they are with appropriate caretakers.  Many times, customs and immigration officers may question parentage when you and your spouse have a different surname than that of your child/children.

Speak with your solicitor about whether a Deed of Parentage is something to consider, especially as customs and immigration agents are becoming much more critical about travel and the necessity to have essential travel documents requirements.


Spotlight Profile: Kyra Cornwall, Barrister, 1 Hare Court

In this Spotlight Profile, we are talking to Kyra Cornwall, Barrister at 1 Hare Court in London, England.  Kyra specializes in high profile matrimonial matters and has extensive experience working on family law matters involving international jurisdictions including Cayman Islands, Singapore, France, Russia and Hong Kong.

Kyra, it is such a pleasure to speak with you today as I know you run a very busy practice in London, England as Barrister to many high-profile matrimonial clients.  Kyra, this is your first spotlight profile here on Hong Kong Divorce, can you tell our readers more about yourself and the work that you do in the matrimonial arena in London? 

Thank you so much for inviting me. It’s a pleasure to be involved!

I am a Barrister practising at 1 Hare Court, the leading matrimonial finance set in England and Wales. We are based in the heart of legal London, in the middle of the Temple, and specialise in matrimonial finance cases. In my ten years at the Bar, I have developed a practice involving lots of international families, both representing them directly in England and Wales, and offering English advice where proceedings are taking place abroad.

Your practice extends to international jurisdictions.  Can you tell us the link that you have to matrimonial matters here in Hong Kong and your experience working on Hong Kong cases?

In 2017, I was awarded the Pegasus Scholarship by the Inns of Court which enabled me to spend that summer in Hong Kong working firstly at Withers then at Temple Chambers (with Richard Todd QC) and finally sitting in on cases at the Family Court with Her Honour Judge Melloy. The purpose of the scholarship is to enable lawyers to build their international awareness and forge links abroad. I had a particular interest in Hong Kong as my father’s family are from Hong Kong originally, and so had been looking for a way to develop international links on a professional basis as well as personally. That summer certainly gave me the ability to do both of those things.

Over the course of my stay, I was fortunate to meet a huge number of family law practitioners and was given a real insight into a legal system that is so similar to that in which I practise in the UK.  Since returning to the UK, I have maintained a Hong Kong focus to my work from London, continuing to advise on cases which include connections to Hong Kong.

Have you noticed any changes or differences in your practice as a result of Covid-19 and the ongoing pandemic?

Absolutely. When the pandemic hit in London, many practitioners were still working from hard copy papers and almost all court hearings were in person. Suddenly the courts were closed and the legal world had to take a giant leap into the 21st century. Within a matter of weeks, papers were being sent electronically and court hearings were taking place via video platform. Although there were some teething problems at the outset, in my view this has been transformative for life as a lawyer and at the Bar particularly.

Prior to the pandemic, a significant portion of my life was spent travelling to Court, waiting around at Court and travelling home again. Being able to operate remotely has virtually removed this, enabling people to work more efficiently and improving work life balance for practitioners.

Beyond this, for those cases involving parties based internationally or where a party has to travel a lot for work, the advent of video platform hearings has also made it much easier for them to be involved without disrupting their working lives so much.

That’s not to say that there have not been problems: there have been technical glitches along the way and there are difficulties when a party does not have more than one screen available to them, but for the most part I think that the pandemic has forced the legal profession to take positive steps that I hope will remain in place moving forward.

One of your areas of specialty is marital agreements.  Hong Kong follows the United Kingdom landmark decision as seen in Radmacher v Granatino [2010] UKSC 42.  Do you see the law evolving or changing in the future with respect to marital agreements in the UK? 

Since the landmark decision in Radmacher, the courts have had to grapple with the questions of whether the parties had all the information material to their decision(s) to enter into a marital agreement, whether each party intended that the agreement should govern the financial consequences of the marriage ending and whether in all the circumstances this is fair.

Whilst the 2010 decision was followed by the Law Commission report in 2014 which suggested that marital agreements should in essence be upgraded to “Qualifying Nuptial Agreements” – i.e. enforceable contracts – in an attempt to provide more certainty to parties, this has not been made into law.

The current approach in the English courts is to focus on the circumstances in which agreements were reached and where they leave the parties in real terms financially, based on all the circumstances of the case. The recent reported decisions demonstrate a reluctance for the court to uphold agreements which are unfair or which do not meet needs objectively (see for example Brack v Brack [2018] EWCA Civ 2862, Ipekci v McConnell [2019] EWFC 19, IU v OS [2020] EWFC 98). The existence of an agreement does not automatically drive a case into needs territory only; it is one of the factors that weighs in the balance. Equally, a lack of legal advice does not automatically render an agreement unfair (see for example Versteegh v Versteegh [2018] EWCA Civ 1050).

That said, anecdotally I would say that a marital agreement that, for example, excludes sharing or fixes provision, does often have the impact of reducing a party’s claim where otherwise they might achieve more.

In Hong Kong, we see many expatriate couples with questions on whether to file in Hong Kong versus their home countries.  What advice would you give to those individuals who have a connection to both Hong Kong and England & Wales in terms of jurisdiction in regards to their divorce?

If I were to meet with a new client who had the option of getting divorced in both Hong Kong and England & Wales, I would suggest that they take local advice in both jurisdictions before making a decision. Where the outcome is likely to be similar (as between Hong Kong and England & Wales), it is likely to come down to questions of practicality.

There is one change coming in England & Wales however that may benefit one or both parties. No fault divorce is due to be brought in from April 2022 (i.e. being able to get divorced without having to plead any allegations of blame). This will hopefully help to drive down tensions and therefore reduce some of the distress that divorce proceedings can bring.

There’s sometimes an ongoing belief that England is a better forum to divorce because of the higher potential in terms of ancillary relief (finances) and costs.  Is this true or is this simply a misconception?

Both England & Wales and Hong Kong adopt bespoke outcomes on divorce, applying the concept of sharing, and the homemaker is seen to contribute just as much as the breadwinner. On that basis, assets in both jurisdictions are divided on a sharing basis if needs are met. Yes, the numbers are big, but England & Wales and Hong Kong are broadly similar in their approach to outcome.

To that extent, whilst London has the reputation of being generous on divorce, I think that is more due to the system that we apply (i.e. very similar to that of Hong Kong) as compared to the rest of the world. Broadly the same principles apply between England & Wales and Hong Kong when dividing assets and awarding maintenance, but other factors will play into needs-driven outcomes, such as the cost of living, parties’ abilities to work (e.g. visa issues), and access to the courts (Hong Kong grants jurisdiction where parties have a “substantial connection” at the date of petition/application, England & Wales operates a more stringent test).

This was such an interesting chat Kyra, thank you so much for your time.  We look forward to having you on board again to discuss other interesting and key topics in the area of matrimonial law!

About Kyra: 

Kyra is a barrister at 1 Hare Court in London, England.  Kyra specializes in financial remedies, claims after foreign divorce, nuptial agreements and jurisdiction disputes.  She is a member of the Family Law Barrister Association (FLBA) and the Inner Temple.

Kyra is described as a “a star in the marking, super clever, slick, elegant and professional” and “a smiling assassin” by both clients and peers.

Kyra’s practice is concentrated on high profile and international matrimonial cases, specifically issues dealing with forum disputes, cases with international trust and company structures, cases with complex issues of enforcement, issues of privilege and cases involving the enforcement of nuptial agreements. She regularly represents husbands and wives in high value and prominent matters, both led and alone in the High Court. She advises clients nationally and internationally, from jurisdictions including the Cayman Islands, Singapore and France, and has a particular interest in cases with links to Hong Kong, having undertaken the Pegasus Scholarship there in 2017.

Kyra is a contributing author of Rayden and Jackson on Divorce and Matrimonial Matters, a comprehensive and key guide for family law practitioners

For more information about Kyra and her practice, you can visit her Chambers’ website: