Considering a Divorce in Hong Kong Series: Length of Marriage and Jurisdiction

There is a popular belief that “anyone can get divorced” in Hong Kong (HK) Special Administrative Region (SAR), but SAR is not a fly-in, fly-out divorce jurisdiction.  See B v A [2007] 4 HKC 610 paragraph (p.) 26.

Among other things, one must establish length of marriage and jurisdiction to have one’s case ajudicated in HK.  See Matrimonial Causes Ordinance CAP.179 (MCO) Sections (s.) 3 & 12(1).  Failure to do so can result in questions being raised and possible refiling, creating delay, wasting time, and increasing costs.

LENGTH OF MARRIAGE

In general, a couple must remain married for one year prior to filing for divorce.  See MCO Section (s.) 12(1).  Although there are some circumstances in a couple can divorce who have been married less than one year, but “the judge shall have regard to the interests of any child of the family … and to the question whether there is reasonable probability of a reconciliation between the parties” in deciding whether to allow the matter to proceed. See MCO s. 12(2). 

The person seeking the divorce will have to show that s/he is suffering hardship or experiencing depravity.  See Matrimonial Causes Rules (CAP. 179A) (MCR) s. 5(2)(ii).  Adultery will not normally qualify as a hardship or depravity.

JURISDICTION

There are three ways a petitioner can obtain jurisdiction:  (1) habitual residence for three years; (2) domicile; or (3) substantial connection.  See MCO s. 3.

Habitual Residence

To prove habitual residence for three years, one need only demonstrate that the party has been resident in HK for three years prior to filing the petition.  See MCO s. 3(b).  Absences for work or vacations will not be deducted for the calculation, but an extended stay of six months for a secondment may.

Domicile

The MCO provides that courts have “jurisdiction in proceedings for divorce … if … either of the parties to the marriage was domiciled in Hong Kong at the date of the petition….”  See Section 3(a).

Domicile is the geographic location of an individual’s permanent home.  According to HK law, every individual has a one and only one domicile at a time, even if he has multiple residences.  See Domicile Ordinance (DO) s. 3(2)).  An individual can acquire a new domicile if he is present in a new territory and intends to make a home there indefinitely.”  Id.  s. 2.

Substantial Connection

The Court shall also have jurisdiction if “[e]ither of the parties to the marriage had a substantial connection with Hong Kong at the date of the petition…."  See MCO s. 3(c).  To establish a substantial connection, a party must prove the following:  (1) that there is a connection with Hong Kong and (2) the connection is a substantial one.

In ZC v CN [2014] HKFLR 469 the Court found that, despite having been married in SAR, having a Hong Kong identity card, maintaining an active bank account, owning a flat, and owning shares in a HK company, the connection was not a substantial one.  Id. p. 3.11-3.12.  Thus the bar is high to esbalish jurisdiction under this jurisdictional prong. 

Each of the above bases for jurisdiction requires careful consideration.  Accordingly, anyone considering filing a petition for divorce in Hong Kong should discuss jurisdiction with his/her legal practitioner prior to filing a petition to avoid questions being raised by the court and the risk of the petition being dismissed after having already incurred significant legal costs.

Kimberly practices Family Law in Hong Kong.  She is also licensed in the State of New York where she worked as a litigator in the federal court system as an Assistant Attorney General.  Kimberly’s other passion is training.  She has conducted hundreds of hours of risk management, legal drafting, and management training in the greater China area.  She is also developing a a library of on-line materials available through her company, The Purple Owl.

Consultant, JC Legal

Kimberly is a licensed attorney in the State of New York and admitted to the Roll of Solicitors in Hong Kong. She has a growing family law practice in Hong Kong and has assisted individuals with matrimonial issues touching the four corners of the globe. Kimberly’s approach to working on matrimonial matters is to listen first, encourage cooperation, and advocate zealously to achieve the best result for her clients, particularly where a couple has children they will have to parent together for years to come.