Divorce rates in Hong Kong continue to rise following a jump post-pandemic, with many involving cross-border marriages. In addition, the number of divorce applications in Hong Kong rose 25 per cent year on year in 2023, pointing to a surge in younger couples seeking to split for reasons such as adultery and conflicts over parenting style.

The process of divorce can be a lengthy, complicated and emotional one. It is crucial to instruct a team of compassionate, trustworthy and experienced family lawyers who can guide you to reach a fair resolution, whereby both parties can move forward with their lives. 

Dissolving the Marriage

To file for a divorce in the Family Court of Hong Kong, there are several basic requirements and legal grounds you must fulfil, which can be found in the Matrimonial Causes Ordinance (Cap. 179) Sections 11A and 12:

• You must be married for at least one year, except for exceptional hardship suffered by the petitioner or of exceptional depravity on the part of the respondent;
• The marriage must have broken down irretrievably, and this will be based on one of five facts: unreasonable behaviour, adultery, desertion, one year separation with consent, or two years of separation without consent; and
• One or both parties must be domiciled in Hong Kong, meaning either have been a Hong Kong Permanent Resident for 3 years before the date of divorce, or have a ‘substantial connection’ with Hong Kong, for example having a permanent employment in Hong Kong.

The divorce process starts with what is called a ‘petition for divorce’, whereby the spouse initiating the divorce completes several forms relating to the grounds for divorce, the arrangements for children (if applicable), and the financial statement or ‘Form E’ regarding the finances and assets in the marriage.

If both parties can prove that the marriage has broken down irretrievably, then the court will declare a decree nisi. If children are involved in the case the decree nisi will not be made absolute until all arrangements relating to the children have been finalised. 

The divorce process can take anywhere from 6 months to several years from start to finish. The length of a divorce will depend on its complexity, and whether the children and financial matters have been agreed upon and if there are still any unresolved, ongoing disputes. 

Children Matters

Children matters often form a fundamental part of a divorce. In Hong Kong, children matters fall into three main areas: custody, care and control, and access. 

Typically, the court tend to grant both parents with joint custody of the children rather than sole custody to one parent. Whether you receive sole or joint custody, both parents will always have a right to be consulted on major issues relating to the children such as education, health and religion.

‘Care and control’ refers to the parent who is responsible for the day-to-day decisions relating to the children and where the children will be living on a day-to-day basis. Orders can be made by the Family Court for parents to share care and control, as is common in other jurisdictions. The parent with care and control will be entitled to request financial support for the children and the court’s objective will be to ensure the children, as far as practicable, are in a financial position similar to what they would have been in if the marriage had not broken down.

If one parent has care and control then the other will have defined/reasonable/generous access to the children, whether this is through an agreement between the parties or by an order of the Court. 

Broadly speaking, when making orders regarding the children, the Family Court will consider the welfare, or ‘best interests’ of the children. This is also known as the ‘Welfare Principle’ and the Welfare Checklist will be considered, including, amongst other things:

• The ascertainable wishes and feelings of the child concerned (in light of the child’s age and understanding);
• The physical, emotional and educational needs of the child;
• The likely effect on the child of any change in the child’s circumstances;
• The child’s age, sex, background and any characteristics of the child’s which the court considers relevant;
• The benefit of keeping siblings together; 
• Financial resources of the parents; and 
• Accommodation for the children.

In an ideal world, matters relating to children arrangement will be agreed between both parents or with the help of a mediator. Taking the case through the court process and into lengthy litigation can be a costly, time consuming, stressful and emotionally draining experience. 

Ancillary Relief

A claim for ancillary relief on a divorce can be made and this relates to financial orders, eg. maintenance pending suit, lump sum order, periodic payment order, attachment of income order, order for sale etc. The court will consider the following factors when determining what are the appropriate order(s) to make:

• Income, earning capacity, property and financial resources now and in the foreseeable future;
• Financial needs, obligations and responsibilities;
• Standard of living enjoyed by the family prior to the breakdown of the marriage;
• Age of each party and the duration of the marriage;
• Physical or mental disability of either of the parties;
• Contributions made by each party to the welfare of the family including taking care of the family;
• Value to either of the parties of any benefit which that party will lose as a result of the breakdown of the marriage; and the
• Conduct and all circumstances of the case.

In addition, the court may make maintenance orders which cover the provision of maintenance for a child. Finances can also be dealt with through periodical payments and property adjustment orders.

Other Applications in the Family Court

There are instances where a spouse would engage in unwarranted conduct such as not fulfilling maintenance obligations, dissipating assets in the stage of financial disclosure, or even engage in domestic violence behaviour. To counteract with these sorts of conduct, applications have to be made to the Family Court, sometimes on an urgent basis,

The Way Forward

Navigating the divorce process in Hong Kong can be complicated, but having a trustworthy team of family lawyers accompanying at your side can be a huge assistance in reaching a fair resolution. Get in touch with our team of Family Lawyers to find out how we can support you in your divorce. 

Glossary

• Ancillary relief: this refers to applications for financial provision (such as maintenance pending suit, transfer of matrimonial properties, division of matrimonial assets, etc.)  sought following the start of divorce proceedings.
• Access: this relates to visitation or staying rights of the parent who does not have care and control of the child.
• Care and control: this refers to the decisions that arise for the parent who has physical control of the child and the responsibility of attending to the child’s immediate care.
• Custody: This refers to major decisions made in safeguarding and promoting the child’s welfare, including health, education, religion and medical needs. The right can be solely responsible by one parent or jointly responsible by both parents.
• Decree nisi: a tentative court order for divorce when the legal and procedural requirements for divorce have been satisfied.
• Decree absolute: this is a final order for divorce that will dissolve the marriage. 
• Divorce: the legal dissolution of a marriage.
• Form E: a financial statement regarding the disclosures of finances and assets in the marriage.
• Form J: the form to state the information of the children to facilitate the dispute resolution process on children matters. 
• Maintenance order: an order the court will make after taking into account the conduct of the parties and all circumstances of the case, such as those laid down in s.7 of the Matrimonial Proceedings and Property Ordinance (Cap. 192) and decide which party and how a party should pay maintenance. 
• Mediation: an alternative dispute resolution procedure to both parties involved in a disagreement, to try to help them to agree or find a mutually-agreed solution to their problems.