25
May
2018
0

Expat divorce in Hong Kong

Jurisdiction for divorce in Hong Kong

A Party can commence divorce proceedings in Hong Kong if either Party to the marriage:

  1. Is domiciled in Hong Kong at the date of the Petition or Application; or
  2. Is habitually resident in Hong Kong throughout a period of three years immediately preceding the date of the Petition or Application; or
  3. Has a substantial connection with Hong Kong at the date of the Petition or Application.

Grounds for divorce in Hong Kong
The sole ground for divorce in Hong Kong is that the marriage has broken down irretrievably based on at least one or more of the following facts, which fall into “fault” and “no fault” categories:

  1. “Fault”

Adultery 

  1. One Party has committed adultery and the other Party finds it intolerable to live with the other Party;

      Unreasonable behaviour

  1. One Party has behaved in such a way that the other Party cannot reasonably be expected to live with such Party;

      Desertion

  • One Party has deserted the other party for a continuous period of at least one year immediately preceding the presentation of the Petition.
  1. “No-Fault”

 With Consent

  1. The Parties to the marriage have lived apart for a continuous period of at least one year immediately preceding the presentation of the petition and the other party consents to a decree being granted;

      Without Consent

  1. The Parties to the marriage have lived apart for a continuous period of at least two years immediately preceding the presentation of the Petition;

There is a restriction on applying for a divorce within the first year of marriage, however the court may allow a Petition to proceed within the first year of marriage on the grounds of exceptional hardship.

Divorce process in Hong Kong

Upon filing the Divorce Petition in Hong Kong, the Court will deal with three matters:

  1. The Divorce suit itself, being the dissolution of the marriage,
  2. Matters concerning custody, care and control of the Children (if relevant), and
  3. The Ancillary Relief being the issue of the Parties’ finances

Division of assets

The Hong Kong Court has powers to make the following Orders concerning financial resources and property:

  • Periodical payments, secured periodical payments and lump sum Orders for a spouse,
  • Periodical payments, secured periodical payments and lump sum Orders for the child or children of the family,
  • Transfer and settlement of property,
  • Sale of property and variation of settlements,
  • If there are trusts, company or other assets, the legal title to which is not held by a Party to the Marriage, the Court can nonetheless take them into account as a financial resource.

 

Matters relating to children  

The Hong Kong Court can make any orders as it thinks fit for the custody and education of any minor child of the family, that is any child under the age of 18 years. The first and paramount consideration in any such decision is the best interests of the child.

The term “custody” has been interpreted by the Court to mean the powers and obligation to make important decisions affecting the child, such as decisions regarding education, religion, medical treatment, change of names and removal from the jurisdiction of Hong Kong whether temporarily or permanently.

Custody can be held jointly by the parents or solely by one parent. If a child or children are of parents who are not married, the mother automatically has custody of the child or children, and the father can only obtain such rights and obligations that are granted by the Court by way of a Court Order.

 

Family dispute resolution – Mediation, Collaborative Practice and Parenting Co-ordination

There are several non-court based processes that exist in Hong Kong to assist the Parties to resolve disputes.

Collaborative practice is another alternative whereby the parties contract not to go to Court and, with the assistance of lawyers and if appropriate, neutral child and financial specialists, counsellors, therapists and/or other professionals, negotiate a mutually acceptable settlement to deal with their financial and children related matters. Once an agreement is reached, it can be made into a court order.

Family mediation is designed to help couples to reach their own mutually acceptable agreements regarding the breakdown of the relationship/ marriage, arrangements for their children and/or the resolution of financial matters. Mediation is a voluntary process in which a trained, impartial third-party endeavours to assist both Parties to communicate and negotiate the settlement of issues. Once an agreement is reached, it can be made into a court order.

Parenting Co-ordination in a non-confidential, child centered process for conflicted, divorced/separated and divorcing/separating parents. It is a form of dispute resolution for parents in which mediation would be inappropriate or ineffective due to high levels of conflict.

 

Advice for family law in Hong Kong 

This short article was prepared by Winnie Chow and Jain Brown, co-founders of CRB.

Winnie sees herself as a problem solver, helping clients resolve their family conflicts with tailored solutions that draw from a variety of dispute resolution options. Her practice covers a wide range of international family law matters, both mainstream as well as complex and atypical. Winnie guides her clients through turbulent times, safeguarding their interests and assisting them in reshaping their futures. Winnie is recognized locally and internationally as a prominent voice in raising awareness of children and family issues and making a positive change in the practice of family law.

Jain is a family law specialist dedicated to providing positive outcomes for her clients. With extensive and wide-ranging international legal experience, including contentious financial cases and matters relating to children, both involving multiple jurisdictions, Jain has established herself as one of the leading family law practitioners in Hong Kong.

For advice on divorce and family law in Hong Kong, please contact Winnie or Jain at:

CRB

20th Floor, Printing House

6 Duddell Street

Central, Hong Kong

winnie.chow@crb.com.hk    Tel: +852 3953 3008

jain.brown@crb.com.hk       Tel: +852 3953 3007

 

 

Leave a Reply