divorce

Divorce is begun by petition or joint application to the District (Family) Court (rule 12(1) of the Matrimonial Causes Rules (Cap 179A). It generally does not matter that the marriage was celebrated abroad. Unless in the unusual case of exceptional hardship, divorce may not be begun until parties have been married for one year, although a petition can be based on facts that occurred within the first year (section 12 of the Matrimonial Causes Ordinance (Cap 179)).

A petition or joint application should be filed with the Family Court Registry together with the documents required by rule 12 of Cap 179A and copies for each party of the petition/application, Form 2B or 2D statement as to arrangements for children, and Form 3 notice of proceedings.

Service of the petition and accompanying documents should be effected on the respondent and each other party through solicitors if they are on record. They may be alternatively served personally or by ordinary post (rule 14(1) of Cap 179A), although personal service may not be performed by the petitioner themselves (rule 14(3)). Service is generally proved by an acknowledgment of service or affidavit showing personal service (rules 14(5) and (7)). An order for deemed service may be granted where the petitioner can show that the respondent has nevertheless received the documents (rule 14(6)). Where genuine efforts have been made and where service is impracticable, an order for substituted service may be granted on ex parte application by affidavit (rules 14(9) to (10). A decree is voidable and may be set aside where an order for substituted service is improperly obtained (FHFK v NCM [2008] 5 HKC 355; [2008] HKCA 254). By way of exception to the usual rule, service out of the jurisdiction is permitted without leave (rule 109 of Cap 179A). In rare cases service may also be dispensed with. At any time before service is effected, the petitioner may file a notice of discontinuance which will dismiss the cause (rule 7 of Cap 179A).

The court only has jurisdiction to deal with a divorce if at the date of the petition or application either party (1) is domiciled in Hong Kong, (2) has been habitually resident for the preceding three years, or (3) has a substantial connection to Hong Kong (section 3 of Cap 179). These concepts are helpfully explained in ZC v CN [2014] 5 HKLRD 43; [2014] HKCA 389.

Domicile is governed by the Domicile Ordinance (Cap 596). All persons have a single domicile at any given time. Almost all persons born in Hong Kong who have not permanently relocated elsewhere will be domiciled in Hong Kong (sections 5 and 7). Expatriates acquire Hong Kong as their domicile if they are lawfully present here and intend to make their home here for an indefinite period (sections 5 and 6).

A party’s habitual residence is her home, abode, dwelling or place of habitation where she has settled voluntarily. It is not affected by vacations or business trips. One may have more than one habitual residence and need not intend to remain permanently for this limb to be satisfied.

Substantial connection is not a technical term and is given an ordinary meaning, which is wider than both domicile and habitual residence and is highly fact sensitive. Accordingly, a broader range of factors relating to one’s connection to Hong Kong will be considered, and the court will additionally be guided by the question of whether the connection merits the court assuming jurisdiction over the divorce. Hong Kong need not be the place that one has the most substantial connection, and comparisons with connections elsewhere are inapposite (B v A [2008] 1 HKLRD 43; [2007] HKCFI 934). The connection should generally be personal and related to the marriage, and not merely commercial (Z v Z [2012] HKFLR 346; [2012] HKCFI 2117). Having a Hong Kong Identity card, having been married in Hong Kong and having worked here will assist a substantial connection claim (YS v TTWD [2012] HKFLR 129; [2012] HKFC 6).

The court may have jurisdiction but decline to exercise it in favour of a foreign court that is clearly or distinctly more appropriate than Hong Kong, and in which the petitioner will not be deprived of a legitimate personal or juridical advantage (SPH v SA (2014) 17 HKCFAR 364; [2014] HKCFA 56 [51]).

The sole ‘ground’ of divorce is that the marriage has broken down irretrievably (section 11 of Cap 179), though the court may only grant a decree where one of five facts are proven (section 11A of Cap 179). The five facts are often also referred to as ‘grounds’ of divorce. They are that (1) the respondent has committed adultery and the petitioner finds it intolerable to live with the respondent (2) the respondent has behaved in such a way that the petitioner cannot reasonably be expected to live with the respondent (3) the parties have lived apart for one year and the respondent consents (4) the parties have lived apart for two years regardless of the respondent’s consent (5) the respondent has deserted the petitioner for one year. In a joint application the only fact (3) is available ie that the parties have lived apart for one year preceding the application and both parties consent (section 11B of Cap 179).

A petition and joint application should contain particulars of the facts relied upon. Although facts (1) to (3) are conduct based, it is never the court’s role to apportion parties’ responsibilities for a broken marriage (BCA v IOF [2006] HKCA 683 [13]) which, like blame, are irrelevant (Owens v Owens [2018] AC 899, [2018] UKSC 41 [49]).

In a petition based on fact (2) behaviour, it is not the behaviour itself that has to be unreasonable, but rather living with the respondent (Owens [37], [47]) and the two are not causally connected ie the behaviour does not have to have caused the breakdown (Owens [41], [49]). Rather the court will ask (1) what the respondent did, by reference to the allegations in the petition (2) what effect that behaviour had on the petitioner in all the circumstances and then (3) evaluate whether as a result of the behaviour and in light of its effect, it would be unreasonable to expect the petitioner to live with the respondent (Owens [28], [47], [55]).  Whether such an expectation is reasonable changes over time, in line with social and moral values (Owens [30]-[33], [47]).

Today it is ‘very proper’ to draft ‘very moderate’ or anodyne petitions that invoke ‘fact (2)’ behaviour using mild particulars in order to satisfy the statute but nonetheless obtain the respondent’s cooperation (although, as seen in Owens, the facts must be sufficient to prove unreasonable behaviour).

The court cannot make a decree nisi absolute until it has made a ‘section 18 declaration’ regarding children under section 18(1) of the Matrimonial Proceedings and Property Ordinance (Cap 192)). There are four declarations that permit a grant. They are that (1) there are no children of the family (2) satisfactory or ‘best in the circumstances’ arrangements have been made for the welfare of each child of the family (3) it is impracticable for either or both parties to make such arrangements, or (4) other circumstances make it desirable for a decree nisi or absolute to be made without delay, and satisfactory undertaking(s) have been obtained to bring the question of the children’s arrangements before the court within a specified time. Opposition to an application for declarations (2) or (3) should be made on the basis of matters that relate to the children only, and will not suffice where they concern conduct or health where those matters to not affect the children (TLS nee J v RCS [2013] HKFC 74 [24]-[40]).

A child of the family is either (1) a biological (including illegitimate) or adopted child of both parties or (2) another child treated by both parties as a child of the family (sections 2(1) and 18(5) of Cap 192). Whether a child is ‘treated as’ a child of the family is a broad question of objective fact to be decided by looking at all the circumstances of the case, including where the child lives, who pays for the child, who exercises discipline and whether responsibilities are claimed (LNL v HPYA [2016] 3 HKLRD 261; [2016] HKFC 51 [11]-[14]).

If the divorce is not contested it will be assigned to the special procedure list and if matters are in order, and the petitioner has filed the affidavit in support of the petition swearing or affirming that the contents of the petition is true, a decree nisi will be pronounced in open court, at a hearing that the parties need not attend (Practice Direction 15.4).

Where a decree nisi is made on facts (3) or (4) ie that the parties are separated, the respondent may additionally apply to ensure that the court is satisfied that the respondent will be not be financially prejudiced by the making of a decree absolute (section 17A of Cap 179).
 

Six weeks after the decree nisi the petitioner may apply under rule 65 of Cap 179A for the decree to be made absolute, by lodging Form 5 with the Registrar. In default the respondent may apply after three months (section 17(2)(a)(i) of Cap 179). On a contested application for an order to be made absolute the court will be guided by what is just and convenient, but will require exceptional circumstances to be alleged in opposition, and financial prejudice to be real (J v V [2013] 1 HKLRD 203, [2012] HKCFI 1877 [29]).

Where a divorce is defended or a cross petition filed alleging that the marriage has broken down by reference to a different fact, the matter will ultimately proceed to trial. It is ‘admirable’ however that the family justice system is based on compromise and settlement and that parties are encouraged to settle at every stage of the cause up to and including contested hearings.

For more information on divorce, including the latest leading cases, see the relevant pages of Duxbury Etc.