Legal Issues Affecting Couples Commencing Cross-Border Divorce

• Law Firm: Withers LLP
• Subject Matter: Family and Matrimonial, Family Law, Wills/ Intestacy/ Estate Planning
• Author: Ms Jocelyn Tsao, Billy Ko and Philippa Hewitt
• Published date: 08 March 2023

For many years the ties between Hong Kong and Mainland families have inevitably become closer. In 1991, only about 1.6% of marriages in Hong Kong involved a party from the Mainland, in 2006 this had risen to almost 43% and this has averaged out recently to about a third of all marriages in Hong Kong. Such families typically have assets and businesses in both jurisdictions and children born in either one or the other, with cross-border education, and extended family members living in both. Where, then, is the appropriate place for such families to finalise their divorce?

From 2017 to 2019, 18% of all divorce cases filed with the family court in Hong Kong involved cross-border couples and, until the recent legal changes allowing for the enforcement and recognition of decrees of divorce and judgements, this posed a real problem for such families.

Despite the closeness of family connections and the new reciprocal law which came into effect last year, the Mainland Judgements in Matrimonial and Family Cases (Reciprocal Recognition and Enforcement) Ordinance ("the Ordinance"), it may still not be possible for a couple who is domiciled or reside on the Mainland to file for divorce in Hong Kong and vice versa. Here are some of the frequently asked questions we have received from clients:

What legal issues should I consider before applying for a divorce?

There are usually three main issues in a divorce case - the divorce itself, the division of assets and the arrangements for the children. The courts in both Hong Kong and the Mainland can decide on all three matters, although there are differences between the two jurisdictions in terms of the court process and the law which govern these matters. If there is doubt as to which jurisdiction would be best, you may wish to speak to a lawyer based in both Hong Kong and the Mainland to explore whether there is any advantage for you to commence divorce proceedings in one of the jurisdictions over the other.

What are the main requirements for Hong Kong courts to have jurisdiction in relation to divorce, property and children's proceedings?

In Hong Kong, either of the parties to the marriage must either be i) domiciled in Hong Kong at the date of the petition for divorce; ii) have been habitually resident in Hong Kong continuously for three years immediately proceeding the petition; or iii) have a substantial connection with Hong Kong. Without satisfying one of these conditions, a divorce cannot take place in Hong Kong.

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