W v C

Court of Appeal
Civil Appeal No 36 of 2011
Cheung, Yuen and Lam JJA
Family Law
23 March 2012, 11 June 2012, 21 March 2013

Divorce — jurisdiction — discretion to stay proceedings for forum non conveniens

In 2002, a husband (“H”) and wife (“W”), both mainland Chinese nationals, married in Hong Kong. From 1992, H had right of abode in Hong Kong, where he lived, studied and worked between 1996 and 2002. In 2003, H and W emigrated to New Zealand, where W gave birth to their child (“C”) in March 2007. In July 2007, H, without giving up his job, left New Zealand with W and C for mainland China, where W issued divorce proceedings. H returned to New Zealand but in May 2008, having resigned from his job there, started work on the Mainland, where he had lived since. On 21 August 2009, W presented a divorce petition in Hong Kong under the Matrimonial Causes Ordinance (Cap. 179) on the basis that H was domiciled in Hong Kong at the date of the petition. H appealed against an order relating to the custody, care and control of, and access to, C (the “Order”), which turned on whether H was domiciled in Hong Kong at the date of the petition so that the Court had jurisdiction in the proceedings.

Held, dismissing the proceedings, that, inter alia:

The issue of H’s domicile at the date of the petition on 21 August 2009 was to be decided according to the Domicile Ordinance (Cap.596) (the “DO”) which came into force on 1 March 2009. Under the DO, an individual retained the domicile he had immediately before he became an adult unless it could be proved that he acquired a new domicile in a country or territory if: (a) he was present there; and (b) he intended to make a home there for an indefinite period.

Here, during his presence in New Zealand, H intended to make it his home for an indefinite period thereby acquiring it as a new domicile. It was not necessary to determine whether or not subsequently H acquired a new domicile on the Mainland since, in any event, he was not domiciled in Hong Kong at the date of the petition. Accordingly, the Hong Kong Court had no jurisdiction and this invalidated the Order and the proceedings.