The jurisdictional grounds to commence divorce proceedings in Hong Kong are that one or both parties to the marriage must either:
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 the 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 the period of three years (TO v KO (2021) HKFLR 554).
“Substantial connection’” allows for a broader definition than the other two limbs; however, it 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.
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 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.
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.
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:
Service is deemed if the respondent returns the acknowledgement of service to 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.
Filing for Divorce
The process and timeline for divorce proceedings is as follows.
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 there are stringent jurisdictional requirements to fulfil.
There are no differences between the servicing requirements for divorce and financial proceedings. However, the timeline for the financial process is as follows.
The target timetabling for ancillary relief cases (according to Practice Direction SL10.4) is as follows:
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.
The financial orders that the court can make in order to regulate or reallocate assets or resources upon divorce are:
The factors that the courts consider when making such orders are:
Also, the conduct of the parties and any other circumstances of the case are taken into account. This may include a nuptial agreement.
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 maintenance pending suit (MPS) for maintenance following the presentation of the petition and the final outcome. Orders for 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 & anor (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 child’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:
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 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 the 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 with 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 children. 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:
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.
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 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:
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 maintenance can be defined as the periodical payments made by one party to the marriage – or, in the case of an 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 periodical (or secured periodical) 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 periodical payments and secured periodical 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 him or her. The judge will consider expert evidence from child psychologists, the social welfare officers and occasionally psychiatrists in order to determine whether or not 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 the child’s best interest to be interviewed by the judge. In most cases, the children will be interviewed by the social welfare officer and any views given will be reported by the officer. In complex cases, the 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 has been 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. The child’s name cannot appear at all in any reported judgments. Children are normally referred to by their first initial.
There are two main areas of reform in Hong Kong family law.
Current Issues of Concern for Family Law in Hong Kong
It will be a huge relief when discussions about what is missing in family law and the family law system no longer includes commentary about the impact of COVID-19 and how life was turned upside down for families – and infrastructural institutions such as the family court – as a result.
Hong Kong, like so many other societies, has been somewhat battered and bruised by its COVID-19 experiences since the end of 2019. The pandemic has inevitably set things back; however, it has also led to some innovation in the form of remote hearings, which one might hope are here to stay (even though it is not looking all that likely). The more there were, the less difficult they were to organise. Despite the challenges presented by different time zones, remote hearings worked and people adapted to them.
Within the family law arena, one of the biggest obstacles awaiting Hong Kong is the lack of progress on the much-awaited Children’s Proceedings Bill, which has still to receive approval from the Legislative Council. Drafted and discussed for the past decade, judges and practitioners look at the proposals and apply them as much as possible in court cases. However, there remains no definite timetable for enacting the needed change in the law.
Do unmarried couples face additional barriers?
A modern trend in Hong Kong – and one that requires judicial adaptation – is the increasing preference for cohabitation instead of marriage. Cohabitees do not have the same sort of rights as a married couple, which creates difficulties when it comes to division of assets and determining beneficial ownership of assets should the relationship break down.
There are differences in approach to the parents of children from an unmarried relationship that are distinctly out of sync with modern-day living – and fathers are at an alarming disadvantage. This is all the more unfortunate in light of the growing trend in Hong Kong for fathers to take a proactive hand in the care of their children, where they often make considerable headway towards becoming the primary carer.
Progress definitely needs to be made in the recognition of non-married families. Sadly, Hong Kong is a long way away from recognising the rights of people in same-sex relationships.
Additionally, as modern family law develops, Hong Kong has faced an increasing number of claims by mistresses against the estates of their former married partners where said partners have become mentally or physically incapacitated or have died. A number of significant cases concerning that very issue are currently going through the courts in Hong Kong, which will undoubtedly lead to some interesting updates in future editions of this guide.
The relationship with mainland China
Hong Kong works more and more with mainland China in aligning cross-border legal issues whenever practicable. The Secretary for Justice in Hong Kong and the Executive Vice-President of the Supreme People’s Court signed the “Arrangement on Reciprocal Recognition and Enforcement of Civil Judgments in Matrimonial and Family Cases”, which provides a highly sought-after change in the law to enable:
As Hong Kong enters the (hopefully) post-pandemic era, there will be increasing movement across the border between families straddling both jurisdictions and, as such, even greater alignment on matters concerning families and children will be sought. The PRC has yet to sign the Hague Convention on the Civil Aspects of International Child Abduction, however – and greater discussion between the two jurisdictions on children’s issues is a big priority.
Making ADR work for all the family
As regards the increase in ADR, Hong Kong ‒ in line with other modern jurisdictions ‒ is working towards making the process more family-friendly; however, it can still do better. These advances include the appointment of parental co-ordinators and the use of mediation (as well as collaborative practice) in order to reduce conflict whenever possible and to help the parties and their children survive the emotional rollercoaster of a relationship breakdown.
One of the challenges to this is the determination of solicitors to hide behind the anonymity of writing in the third person, rather than taking ownership of the advice they give to their clients. It is regrettable that so many family disputes in Hong Kong continue to be fought through the courts as a result. Indeed, the judiciary has had to remind lawyers practising in the family justice arena that “[they] owe a duty to the court to consider matters objectively and professionally, always bearing in mind... [that] the best interest of the child is of paramount importance. It is not befitting for a professional to advance an argument or offer an opinion simply because it would tally with what their client wants to achieve. Strategy or forensic consideration should never be allowed to cloud a practitioner’s judgment in the discharge of his or her duty towards the court. The court depends very much on the integrity and competence of the professional practitioners in the administration of justice and family cases (as in other cases)”.
This Chambers guide, which recognises the expertise of family courts in so many jurisdictions, serves as a reminder to practitioners in Hong Kong (and elsewhere) that the Family Court and family law practitioners have a crucial role to play in actively seeking and securing settlement whenever possible ‒ as well as keeping cases in proportion and perspective ‒ for the benefit of families going through the maelstrom that often accompanies the end of a relationship.