Expat divorce law in Hong Kong

How we can help: Our firm advises British expats or those with links to England who are living in Hong Kong on divorce and family law. Sonny Patel, an international family lawyer based in the Singapore office of Expatriate Law, acts for British expatriates living in Asia. Sonny conducts divorce and family proceedings through the English courts for British expats living in Hong Kong.

Where to divorce if you live in Hong Kong

If you are a British expat living in Hong Kong and you are considering divorcing or separating from your spouse or partner, you may be wondering where to begin and what law will apply to you. You may think that you need to divorce in the country in which you were married; this is not the case. If you or your husband/wife were born in England, or have connections to England, you may be able to divorce through the English courts.

You can read more about whether you can divorce in England on our jurisdiction advice page. If you contact us, one of our lawyers will telephone you without charge to give advice whether you can divorce in England.

We advise British clients across Asia, and assist them to divorce through the English courts, and achieve a financial settlement under English law.

Applying for a divorce in Hong Kong

For those considering a divorce through the Hong Kong courts, Caroline McNally , Kajal Aswani and Kelly Merris of Gall Solicitors in Hong Kong, have kindly prepared this helpful guide on divorce in Hong Kong.

To commence a divorce in Hong Kong an expat, or their spouse, must:

1. Be domiciled in Hong Kong at the date of the divorce petition, or
2. Be habitually resident in Hong Kong throughout the period of three years immediately preceding the date of the divorce petition or application, or
3. Have a substantial connection with Hong Kong at the date of the divorce petition or application.

To be domiciled in Hong Kong generally means that a party must consider Hong Kong to be their permanent home. A party will not be considered domiciled in Hong Kong only on the basis that they hold a Hong Kong permanent identity card or passport. A party will also have to show he/she is domiciled in Hong Kong in accordance with the Domicile Ordinance Cap. 596 which includes showing that the party has the intention to live in Hong Kong permanently or indefinitely.

For there to be a substantial connection, factors such as whether the matrimonial home is in Hong Kong, whether the parties consider Hong Kong to be their home, whether one or both of the parties work in Hong Kong, and whether any children study in Hong Kong will be considered.

The sole ground for divorce is that the marriage has broken down irretrievably and there are five facts to establish this:

• Adultery
• Unreasonable behaviour
• One year separation with consent
• Two years separation
• Desertion

Parties can also start divorce proceedings by a joint application if the parties have been separated for one year and both parties consent to divorce.

Divorce process in Hong Kong

If the parties have proven the marriage has broken down irretrievably, then the court will pronounce decree nisi. Decree nisi can be made absolute six weeks after the pronouncement of decree nisi. If there are children of the marriage, the court has a duty to consider the arrangements for their welfare and decree nisi will not be made absolute until the court is satisfied with the arrangements for the children.

Division of assets

It is possible to make a claim for ancillary relief on a divorce, that is financial orders.

The court will take into account the following factors when determining what order to make:

• the income, earning capacity, property and other financial resources which each of the parties to the marriage has or is likely to have in the foreseeable future
• the financial needs, obligations and responsibilities which each of the parties to the marriage has or is likely to have in the foreseeable future
• 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, including any contribution made by looking after the home or caring for the family
• in the case of proceedings for divorce or nullity of marriage, the value to either of the parties to the marriage of any benefit (for example, a pension) which, by reason of the dissolution or annulment of the marriage, that party will lose the chance of acquiring.

Maintenance orders

The court may make maintenance orders providing maintenance for a party or a child. In considering whether it should make an order, the court will take the same factors as listed above into account.

Child disputes in Hong Kong

The court will make orders in respect of custody, care and control and access of children.

• Custody refers to decisions made by parents on major issues such as education, place of residence, religious activities, and medical needs.
• Care and control refer to the day-to-day care of the child.
• Access refers to visitation rights of the parent who does not have care and control of the child.

A child’s best interests is the paramount consideration of the court. The court will have regard to a number of factors including:

• the preservation of the status quo
• the ages of the parents and child
• the personality, capability and character of the parents
• the financial resources of the parents
• the physical and mental health of the parents and child
• the accommodation available to the child
• the child’s own wishes and views, if any
• the benefit of keeping the siblings together with one parent
• the religion and culture of the family, and
• professional reports such as medical, school, or social welfare officer’s reports

Marital Agreements

A pre-nuptial or post-nuptial agreement is not binding on the courts in Hong Kong and the courts retain their discretion and are bound by legislation governing the making of financial orders in divorce proceedings. However, there have been significant developments in the law and nuptial agreements are now given the fullest effect by the courts in Hong Kong provided:

• the parties entered into the agreement of their own free will, without undue influence or pressure.
• the parties had a full appreciation of the implications of the agreement, and
• it is fair in the circumstances prevailing to hold the parties to the agreement.

Please contact Caroline McNally , Kajal Aswani and Kelly Merris of Gall Solicitors in Hong Kong for advice on divorcing in Hong Kong.

www.gallhk.com

Gall is a leading independent Hong Kong law firm focusing primarily on dispute resolution. Our family and divorce lawyers are specialists in financial and children matters relating to relationship breakdown.

If you are a British expatriate considering divorce, and wish to weigh up the pros and cons of divorcing in Hong Kong and England, please contact one of our team at info@expatriatelaw.com.