Family Law 2024 Comparisons

Grounds

There is only one ground for divorce in Hong Kong – that is, irretrievable breakdown of the marriage. This can be proved by one (or more) of the following five facts.

• The respondent has committed adultery and the petitioner finds it intolerable to live with the respondent.
• The respondent has behaved in such a way that the petitioner cannot reasonably be expected to live with the respondent.
• The parties have lived apart for a continuous period of one year immediately preceding the presentation of the petition and the respondent consents to the divorce on this basis.
• The parties to the marriage have lived apart for a continuous period of at least two years immediately preceding the presentation of the petition.
• The respondent has deserted the petitioner for a continuous period of at least one year immediately preceding the presentation of the petition.

The parties must have been married for at least a year before proceedings can be brought, unless the petitioner can prove “exceptional hardship” or “exceptional depravity” on the part of the respondent.

Petitions

All petitions (or joint applications) must be issued in the district (family) court. Marriages and divorces in Hong Kong are valid if they comply with Chapter 181 of the Marriage Ordinance and Chapter 179 of the Matrimonial Causes Ordinance. Foreign marriages and divorces will generally be recognised if they are valid in the countries in which they were obtained. Religious marriages and divorces are not treated separately or uniquely. It is a civil process.

A party can also issue a petition for nullity or a judicial separation. It is also possible for parties to make a joint application to divorce if they have been separated for one year and both consent to the divorce.

Service

Once the petition has been filed with the court, it must be personally served on the respondent (or on their solicitors, if known) with accompanying documents, including:

• an acknowledgement of service that the respondent is required to complete, indicating whether they intend to defend the petition; and
• a Notice of Proceedings that will inform them of the process and the timeline.

Service is deemed if the respondent returns the acknowledgement of service to the court or if there is an affidavit of service by the server. Other forms of service include deemed service and substituted service. The court can also make an order dispensing with service in rare circumstances.

Process and Timeline

The process and timeline for divorce proceedings are as follows:

• the petition is issued;
• the respondent has eight days (including the date of service) in which to respond;
• if there is no intention to defend, the matter is set down for decree nisi in the Special Procedure List;
• the decree absolute can be applied for within six weeks of the decree nisi;
• if intention to defend is indicated, the respondent has 29 days from receipt of the Notice of Proceedings to file an answer; and
• the petitioner has 14 days to reply to the answer.

The jurisdictional grounds to commence divorce proceedings in Hong Kong are that one or both parties to the marriage must either:

• be domiciled in Hong Kong at the time of the petition;
• have been habitually resident in Hong Kong throughout the three years immediately preceding the petition; and/or
• have a substantial connection to Hong Kong at the time of the petition.

This only applies to married couples, as there is no jurisdiction in Hong Kong for same-sex spouses or civil partnerships. Nationality is not a concept that is relevant, nor is it significant where the parties were married.

“Domicile” can broadly be defined as the country that a party considers to be “home”. An adult will retain their domicile from birth, but they can change it and acquire a new domicile (W v C (2013) HKLRD 602).

“Habitual residence” requires the physical presence of one of the parties for a period of three years (TO v KO (2021) HKFLR 554).

“Substantial connection” allows for a broader definition than “domicile” and “habitual residence”; however, this will also depend on the facts. The court will question whether the party had a connection to Hong Kong and, if so, whether it was substantial. The court will look at physical presence and other connecting factors ‒ for example, where the children are educated, where the parties had their marital home, where the parties work, and where they hold their assets (ZN v CN (2014) HKFLR 469).

Parties can have a substantial connection to more than one jurisdiction. Parties to divorce can – and regularly do – contest jurisdiction. If a party disputes jurisdiction, they will normally apply for a stay of the Hong Kong petition and the court will be asked to determine whether the party has a case for forum non conveniens. The court must take the following questions into account when considering this issue.

• Is there another available forum, which has competent jurisdiction, if Hong Kong is not the natural or appropriate forum? The burden of proof is on the party seeking to dispute jurisdiction.
• If there is another forum, is it more appropriate? If so, would there be a juridical disadvantage to the petitioner should the matter proceed elsewhere? The burden then shifts to the Hong Kong petitioner to prove that they would be at a disadvantage (SPH v SA (2014) HKFLR 286, applying Spiliada Maritime Corporation v Cansulex Ltd (1987) AC 460).

In Hong Kong, the financial application is “ancillary” to the divorce suit and so the jurisdictional requirements are the same. Therefore, the process to contest financial proceedings is also the same as per the main suit. The application to stay the Hong Kong proceedings is the same as those considered in the divorce suit.

Hong Kong courts do have the jurisdiction to hear financial matters following a foreign divorce under Chapter 192 Part IIA of the Matrimonial Proceedings and Property Ordinance. In order to be successful under this part, the applicant must obtain leave of the court to make the application and stringent jurisdictional requirements need to be fulfilled.

There are no differences between the servicing requirements for divorce and financial proceedings. However, the timeline for the financial process is as follows:

• following an application for ancillary relief, the court will allocate a date for the first appointment;
• 28 days before the first appointment, the parties file and exchange financial statements;
• 14 days before the first appointment, the parties file and exchange bundles;
• the first appointment may be dealt with on paper;
• at the Case Management Hearing (CMH), a date will be fixed for the Financial Dispute Resolution Hearing (FDR);
• seven days before the FDR, the parties file and exchange an FDR bundle;
• if the FDR hearing is not successful, the matter will be set down for trial; and
• no fewer than 21 days before the trial, the parties file and serve their Statement of Open Proposals.

The target timetabling for ancillary relief cases (according to Practice Direction SL10.4) is as follows:

• “short cases” – up to 13 months;
• “medium cases” – up to 17 months; and
• “long cases” – up to 22 months.

The Hong Kong courts’ approach to the division of assets can be found in the Court of Final Appeal case of LKW v DD (2010) 13 HKCFAR 582. This case sets out four guidelines and five steps.

Guidelines

• Fairness between the parties should be the main objective.
• Any discrimination between the breadwinner and the homemaker should be rejected.
• Tentative views should be tested against the “yardstick of equality” (not that equality is a given, but it should only be departed from with good, articulated reasons).
• Minute retrospective investigations – often relevant in arguments relating to conduct or contribution – should be rejected.

Steps

• Identify the assets.
• Assess the parties’ financial needs (if only needs can be satisfied at this stage, the process will end here).
• Decide whether to apply the sharing principle (if there are assets surplus to needs).
• Consider whether there are good reasons to depart from equality – for example, compensation, financial needs, duration of the marriage, contributions to the welfare of the family, conduct, or the source of the assets.
• Decide the outcome (checking the discretion exercised at the fourth step with the fairness of the outcome).

Financial Orders

The financial orders that the court can make to regulate or reallocate assets or resources upon divorce are:

• periodic payments (ie, spousal maintenance);
• secured periodic payments;
• a lump sum;
• property adjustment orders (including transfer of property orders, settlement of property orders and variation of property orders); and
• an order to sell property.

The factors that the courts consider when making such orders are:

• the income, earning capacity, property and other financial resources that each of the parties to the marriage has or is likely to have in the foreseeable future;
• the financial needs, obligations and responsibilities that 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 the parties and the duration of the marriage;
• any physical and mental disability of either of the parties;
• 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; and
• the value to either of the parties of any benefit that, by reason of the dissolution of the marriage, said party will lose the chance of acquiring.

In addition, the conduct of the parties and any other circumstances of the case are taken into account. This may include a nuptial agreement.

Identifying Assets

The court will identify the assets in the case from the disclosure in the financial statement (Form E) filed by both parties, as well as any subsequent questionnaires filed in the court.

As part of the discovery process, each party can raise a questionnaire upon receipt of the other side’s Form E. If there are issues relating to discovery, this may be dealt with at the first appointment or CMH, and further discovery may be allowed. Leave of the court to raise requisitions may be required thereafter.

The courts can and will make orders for specific discovery against third parties  – for example, banking documents from banks – if the information is relevant. Generally, third parties (such as other family members) would be joined as parties to the action if they were the legal owner of property that one of the parties to the marriage alleges is beneficially owned by the other party (LCC v LMWA (2019) HKFLR 74).

There is no property regime in Hong Kong. All property will be taken into account and divided according to Chapter 192 of the Matrimonial Proceedings and Property Ordinance, with guidance from case law.

The family courts recognise the concept of trusts. Hong Kong’s highest court has followed the guidance in Charman v Charman (No 4) (2007) 1 FLR 1237 by allowing trust assets to be regarded as a resource for the purposes of asset division. This is the case if, on the balance of probabilities, the trustees would accede to a request by the settlor to advance the whole or part of the capital or income of the trust to him (Kan Lai Kwan v Poon Lok Otto (2014) 17 HKCFAR 414). Also, settlements under trusts may be varied under Section 6(1)(c) of Chapter 192 of the Matrimonial Proceedings and Property Ordinance.

In Hong Kong, a spouse may be entitled to spousal maintenance until such time as they remarry. The court will order a clean break if it is appropriate, but there is no statutory duty for it to do so. If there is sufficient value in the marital pot to allow for a clean break, this would normally be the route taken by the judge. However, if there is insufficient value, a spousal maintenance order will generally be made.

The court has wide powers to award ongoing maintenance to a party on divorce. The quantum will be determined by the overall award but must take into account the needs of the parties and the ability of the paying party to pay. The duration of maintenance will often be considered in the context of earning capacity, which may be affected by child rearing or other factors such as age or disability. Spousal maintenance is subject to judicial discretion based on the facts.

A party can apply for a maintenance pending suit (MPS) for maintenance following the presentation of the petition and the final outcome. Orders for an MPS are generally made on a more broad-brush basis and adjustments can be made in the final outcome, if necessary.

Since the Court of Final Appeal case of SPH v SA (2014) HKCFAR 364, Hong Kong has followed the guidelines from the English Supreme Court case of Radmacher v Granatino (2010) UKSC 42 1900. Therefore, a nuptial agreement could carry full weight if each party had entered into it of their own free will, without undue influence or pressure, having all the information relevant to their decision, and intending that it should govern the financial consequences of the marriage coming to an end. There is no distinction between pre- and postnuptial agreements.

Every agreement, however, remains subject to the factors that the court must take into account in respect of asset division. The agreement is only one of the circumstances of the case – albeit, in many cases, a very significant one. The jurisdiction of the Hong Kong courts has not been ousted by this decision; however, it is no longer against public policy to take into account nuptial agreements that conform with the requirements.

A recent example of how the courts will approach prenuptial agreements was the case of LCYP v JEK & another (2019) HKFLR 238. Here, the wife was held to her prenuptial agreement to an extent – although the fact that it had been a long marriage and the parties could not have foreseen subsequent events had an effect on her overall award.

There is no recognition of “common law” relationships in Hong Kong. Division of assets in respect of cohabitees will depend on the law of property, trusts and contract.

Hong Kong follows the same principles set out in Stack v Dowden (2007) UKHL 17 to ascertain whether a party will have a beneficial interest in addition to any legal interests they may have in what would normally be considered matrimonial assets. This then involves arguments with regard to resulting trusts and constructive (or “common intention constructive”) trusts. Cohabitants do not acquire any rights by virtue of length of cohabitation or children; however, some parents may be entitled to a carer’s allowance if – by virtue of looking after the couple’s children – their ability to work is affected. Children of unmarried parents are also entitled to be maintained and this will stretch to general maintenance, such as housing, from which a spouse may benefit during the children’s minority.

If a party fails to comply with an order, there are a number of methods the other party may use to enforce compliance. These include:

• judgment summonses;
• attachment of earnings;
• charging orders;
• garnishee orders;
• writs of fi fa;
• Hadkinson orders;
• prohibition orders; and
• statutory demand/bankruptcy orders.

International enforcement of a financial order is also permitted in Hong Kong. There are two ordinances for the reciprocal enforcement of orders – namely, Chapter 188 of the Maintenance Orders (Reciprocal Enforcement) Ordinance and Chapter 319 of the Foreign Judgments (Reciprocal Enforcement) Ordinance. If the country seeking to enforce the order is a reciprocating country, the procedure is straightforward. If not, the parties must turn to the common-law conflict of laws principles.

This has seen the enactment of the Mainland Judgments in Matrimonial and Family Cases (Reciprocal Recognition and Enforcement) Ordinance, which sets out the arrangement between Hong Kong and mainland China.

All family court proceedings in Hong Kong are in chambers. Proceedings before the appellate court will be in open court, as confirmed in TCWF v LKKS (2013) HKFLR 456 on the basis that arguments in the court of appeal are more focused and only submissions in relation to the appeal will be entertained. In an appeal on law, the public has an interest in following a debate on legal issues, which will be a binding precedent on the lower courts.

Family cases from the High Court, family courts and appellate courts will be anonymised before they are published. This is done by the judiciary prior to publishing on their website. Cases that go to the Court of Final Appeal are generally not anonymised.

Hong Kong has many accredited private mediators that assist parties in resolving their financial disputes, which is a common mechanism in family cases. In addition, parties often engage in private financial dispute resolutions (FDRs) with the assistance of a senior practitioner or retired judge. There are also several collaborative practitioners, even though this process is not widespread in Hong Kong. Since December 2020, there has been provision and a specific procedure for private adjudication of financial disputes pursuant to the Practice Direction SL9; however, to date, this has not been fully utilised by the profession.

The family court process includes and encourages settlement. The FDR hearing is a without-prejudice hearing in which the parties are expected to focus on settlement with the assistance of a judge. A party who is clearly not engaging with the aim of settling may be penalised with an adverse costs order.

Any agreement reached outside court must be submitted to court for approval. Even where the parties have reached agreement through private adjudication or private FDR, they must jointly apply by way of a consent summons attached to the draft order and seek the court’s approval. Only an order of court will be enforceable.

A child would normally have to be physically present in Hong Kong for a custody order to be made in respect of the child. The concepts of domicile and residence are therefore relevant to determining jurisdiction. Nationality is not a factor the court would take into account. The High Court also has inherent jurisdiction over children.

Under Section 19 of the Matrimonial Property and Property Ordinance, the Hong Kong courts have the power to make orders for the custody and education of children born to married parents. This section would be in reference to Section 3 of the Matrimonial Causes Ordinance and the jurisdictional requirements of that ordinance (please see 1. Divorce).

If a child is born out of wedlock, custody orders can be made under Section 10 of Chapter 13 of the Guardianship of Minors Ordinance. Technically, this ordinance is not subject to the same rules that govern the Matrimonial Causes Ordinance and the Matrimonial Property and Property Ordinance. This was addressed by the Court of Final Appeal in QMY v GSS (2017) HKCFAR 303 (jurisdiction over a Hong Kong-born child living in the PRC). In that case, the Court of Appeal had declined to exercise discretion regarding a child who was ordinarily resident outside Hong Kong. The judge cited the settled practice of not allowing the order due to:

• a difficulty in enforcing orders overseas;
• the unfamiliar matters relevant to the child’s living, education and medical expenses; and
• policy considerations with regard to the “comity of nations” doctrine.

The Court of Final Appeal reversed the finding on the basis that the father – against whom the maintenance order was to be made – was within the jurisdiction of Hong Kong. The Court of Final Appeal also found that, under the Guardianship of Minors Ordinance, the court did have jurisdiction to entertain an application concerning a child who was neither ordinarily resident nor present in Hong Kong.

Child Arrangements

Either parent can apply to court for an order for custody, care and control, and access in respect of their children. Parents in Hong Kong have equal rights; however, unmarried fathers must make a separate application for custody under Section 3(1)(d) of the Guardianship of Minors Ordinance in order to take advantage of the remedies available under the Hague principles and ensure his rights are established.

The courts regard the best interests of the child as the first and paramount consideration. Due consideration is also given to the views of the minor, if – considering the age and understanding of the minor and the circumstances of the case – it is practicable to do so. The court must also have regard to any material information, including any report from the Director of Social Welfare available at the court hearing (Section 3(1)(a)(i) of the Guardianship of Minors Ordinance).

The concept of “parental responsibility” has not been adopted in Hong Kong, despite being recommended by the Law Report Commission. Hong Kong continues to use the terminology of “custody” and this can be either sole or joint custody. Custody comprises the bundle of rights parents have in relation to their children, including the right to make all important decisions affecting the child (eg, decisions relating to the child’s education, religion and/or medical treatment).

It has been said that the non-custodial parent retains the right to be heard on such matters. It is possible for any parent to make an application to court to be heard on these issues, even where there is an order for sole custody – rather than joint custody – in place. Sole custody “does no more than add a qualification to the otherwise joint endeavour of both parents in raising their child ‒ that qualification being that the final decision will rest with one parent” (PD v KWW (2010) HKFLR 262). Sole custody may be appropriate in cases where there are threats of violence and the parties are incapable of communicating effectively with each other. The more common order in Hong Kong is that of joint custody.

The child’s living arrangements will be subject to a “care and control” order and the time/contact they have with the non-custodial parent is known as “access”. This can either be left open, meaning an order for “reasonable access” is made, or the parties can come to an arrangement for the time spent with either parent (“defined access”).

The court has wide discretion to make orders in favour of children. Other than the factors listed in Section 3 of the Guardianship of Minors Ordinance, there are no restrictions – although a welfare checklist, which can be found in the Children’s Proceedings (Parental Responsibility) Bill, is often cited as providing guidance to the judiciary when making custodial or care and control orders.

The factors listed in the aforementioned welfare checklist include:

• the ascertainable views of the child;
• the child’s physical and emotional needs;
• the likely effect of any change in circumstances on the child;
• the age, maturity, sex, social and cultural background of the child;
• any harm the child may be at risk of suffering;
• how capable each parent ‒ and any other person to whom the court considers the question to be relevant ‒ is of meeting the child’s needs;
• the nature of the child’s relationship with each parent and with such other persons; and
• the attitude to the child – and to the responsibilities of parenthood – demonstrated by each of the parents.

Not all of these factors will be relevant and, as such, they do not all need to be considered. Many of these will have been covered by the social welfare report. Similarly, the judge’s discretion is not fettered by the recommendation of the report – although, as the “eyes and ears” of the court, good reasons must be given for deciding against such a recommendation.

Child Support

Child maintenance can be defined as the periodic payments made by one party to the marriage – or, in the case of unmarried parents, by one parent – to the other for the benefit of their child. Lump sums and property adjustment orders can also be made for the benefit of children but generally “maintenance” refers to periodic (or secured periodic) payments.

There is no formula for the calculation of child maintenance. The court is bound to consider the child’s financial needs, any financial resources of the child, any physical or mental disability, the standard of living enjoyed by the family before the breakdown of the marriage or relationship, and the manner in which the parents expected the child to be educated. This will be balanced against the payer’s ability to pay. The court has a duty to try to place the child of a marriage in the financial position they would have been in had the marriage not broken down. There is no such provision for children of unmarried parents.

Parties can agree child maintenance at any time without the involvement of the court and agreements can be set out in separation or cohabitation agreements. For full enforceability, however, it is advisable to obtain a court order.

The court can make orders for periodic payments and secured periodic payments, as well as lump sum provision at any time after the application has been made. Such orders will cease when the child reaches the age of 18, although under Section 10(3) of the Matrimonial Proceedings and Property Ordinance, this period can be extended if the child is “receiving instruction at an educational establishment or undergoing training for a trade, profession or vocation”. There are identical provisions under the Guardianship of Minors Ordinance with regard to children of unmarried parents.

Children can apply for financial provision for themselves, and the age limits are the same. They would normally apply through a guardian ad litem and, as such, there is no minimum age limit.

The family courts can and do make orders with regard to a child’s schooling, medical treatment and holidays when the parents disagree. The court would also have the power to make an order in respect of religion; however, in practice this is rare.

Arguments relating to parental alienation are raised in Hong Kong when the non-custodial parent alleges that the custodial parent is influencing the children against them. The judge will consider expert evidence from child psychologists, the social welfare officers and, occasionally, psychiatrists in order to determine whether there has been parental alienation. Where alienation is found, the court has the choice to review and adjust custody orders, care and control orders, and access orders in accordance with what are considered to be the best interests of the children.

Children can give evidence in court, but this is rare in Hong Kong. It is up to the individual judge to decide whether it will be in a child’s best interest to be interviewed by the judge. In most cases, children will be interviewed by a social welfare officer and any views given will be reported by the officer. In complex cases, children will also be interviewed by a child psychologist.

The courts are generally of the opinion that too much intervention is not in the best interests of the children, although it is important to hear their views. The weight that a judge will attach to children’s views will depend on the child’s age and level of maturity. Guidance was given by the Chief Justice in 2012 on the factors to bear in mind when considering whether to interview a child. Decisions are at the sole discretion of the judge.

The main ADR process available to parties to resolve their disputes outside court is mediation. Collaborative practice may also be effective; however, this is not widespread in Hong Kong. The private adjudication of financial disputes mentioned in 2.9 Alternative Dispute Resolution (ADR) is also available.

The only ADR methods mandated by the court are those that have been incorporated into the process itself in the form of the FDR process and the Children’s Dispute Resolution process contained in Practice Directions 15.11 and 15.13 respectively. There are no penalties for non-compliance; however, the court may express its displeasure in costs orders or even make adverse inferences against a party that is not co-operative.

Agreements reached via a non-court dispute resolution process may be enforceable under contract or trust law. For full enforceability of an agreement, parties are advised to settle a consent summons that can be made into a court order.

Parties and their legal advisers have a duty under the Rules of the High Court O1A to further the underlying objectives of the Chief Justice’s reforms, which include the facilitation of settlement. However, there is no requirement imposed by statute for parties to engage in alternative dispute resolution as such.

The media and the press can report on cases involving children, but the names must be anonymised. A child’s name cannot appear at all in any reported judgments. Children are normally referred to by their first initial.