British Expats Divorcing In Hong Kong

• Published date: 07 October 2020
• Subject Matter: Litigation, Mediation & Arbitration, Family and Matrimonial, Family Law, Arbitration & Dispute Resolution, Divorce
• Law Firm: Gall
• Author: Ms Caroline McNally

Hong Kong, with its colonial connection to the United Kingdom before the 1997 handover, continues to be a popular city for British expatriates to come to explore opportunities Unfortunately, Hong Kong also has a reputation of being the 'graveyard of marriages'.

Before filing for divorce, British expats should appreciate the similarities and differences between the law and procedure in Hong Kong and in England and Wales, and the implications on financial matters upon divorce in both jurisdictions.

Eligibility to petition for divorce in Hong Kong

In order to petition for divorce in Hong Kong, you must satisfy the jurisdiction requirements.

Pursuant to section 3 of the Matrimonial Causes Ordinance (Cap 179), the Hong Kong Courts shall have jurisdiction in the divorce proceedings if either one of the parties was:

• Domiciled in Hong Kong at the date of the petition or joint application;

• Habitually resident in Hong Kong throughout the period of 3 years immediately preceding the date of the petition or joint application; or

• Had a substantial connection with Hong Kong at the date of the petition or joint application.

For most British expatriates, they will rely on the habitual residence ground unless they have been living in Hong Kong for less than 3 years and they will therefore rely on their substantial connection to Hong Kong. Whether or not a couple satisfies the criteria will be a question of fact. An artificially construed connection will not be enough. The Courts will look at the reality of the situation and most expat families who are in Hong Kong for employment reasons will satisfy the test.

'No fault" divorce in Hong Kong

As in England and Wales, there is only one "ground" for divorce which is the irretrievable breakdown of the marriage which must be established by proving one or more of the five "facts". As is the case in England and Wales, in Hong Kong there are two non-fault based facts that the parties can rely on - although the criteria in Hong Kong differ, notably:

• The parties' separation for one year with consent; or

• The parties' separation for two years without consent.

The other fault based facts are:

• Adultery
• Unreasonable behaviour
• Desertion

The adultery fact is rarely used in Hong Kong because a third party involved in an adultery petition will normally be joined to the proceedings as the "second respondent" or "co-respondent.

Financial relief on divorce

Couples might find themselves eligible to file for divorce in both England...