May 2021

Divorce Frequently Asked Questions | Haldanes

FAQs for Divorce - Divorce Frequently Asked Questions | Haldanes

Divorce

1. How soon after the marriage can I commence divorce proceedings?

Unless the Court allows otherwise, you can only commence divorce proceedings if you have been married for at least 1 year.

2. How do I start the divorce proceedings and how long does it take for me to get a divorce?

To commence the divorce proceedings, you have to file a petition for divorce or file a joint application with your spouse with the Family Court Registry.

If the petition is undefended, meaning there is no dispute as to the reason for divorce, you can then apply for a Decree Nisi.  Six weeks after the Decree Nisi is granted, you can apply for it to be made absolute, i.e. Decree Absolute. If you and your spouse agree on the divorce suit, children’s arrangements and financial arrangements (the 3 elements to be resolved in a divorce), it will normally take about 7-8 months to get the final divorce order (Decree Absolute) to conclude the divorce proceedings. Depending on the amount of contested issues in a particular case, a contested divorce proceedings can take over a year or more.

3. What are the grounds for divorce in Hong Kong?

The Court needs to be satisfied that the marriage has broken down irretrievably and you can rely on one of the following five facts to apply for a divorce:

– Adultery;

– Unreasonable behaviour;

– One year separation with consent of your spouse;

– Two years’ separation without consent of your spouse; or

– Desertion by your spouse for at least a continuous period of one year.

4. Can I get a divorce in Hong Kong even though I did not get married here?

You can apply for divorce in Hong Kong provided that your marriage is validly constituted in the country where the marriage took place and one of the following conditions is satisfied:-

– Either of the parties to the marriage was domiciled in Hong Kong on the date of the petition or application (Domicile means a place where you live in and you have the intention to permanently stay);

– Either of the parties to the marriage was habitually resident in Hong Kong throughout the period of 3 years immediately preceding the date of the petition or application; or

– Either of the parties to the marriage had a substantial connection with Hong Kong on the date of the petition or application.

5. My spouse and I have separated, but we are still living in the same home. Can we still get a divorce based on separation?

Yes, it is possible for you to file for divorce based on separation as long as the living arrangements between you and your spouse are explained to the Court and the Court is satisfied that you and your spouse are living as two separate households even though the two of you are still living under the same roof.

6. Do I need a lawyer in order to get a divorce?

Although it is not necessary for you to hire a lawyer to act for you in the divorce proceedings, it is advisable to consult a lawyer first before commencing the divorce proceedings to understand the procedures and your rights, especially if your spouse does not agree to a divorce and/or neither of you can agree on the arrangements to be made for the children or financial matters.

If you are facing financial difficulties, you may try to apply for the Legal Aid Scheme administered by the Legal Aid Department.

 

FAQs for Divorce with children - Divorce Frequently Asked Questions | Haldanes

Children Matters

7. How would the Court deal with children matters?

The Court will make orders relating to the custody, care and control and access of the children in the divorce proceedings. The parent who has custody of a child will have the right to make major decisions such as his/ her education, medical decisions and choice of religion. The parent who has care and control of the child is responsible for the daily care of the child and making routine day-to-day decisions for the child. The parent who does not have care and control will have access to the child and spend time with the child on a regular basis.

8. What should I do if I want to relocate with my children to another country permanently during or after the divorce proceedings?

If you wish to relocate with your children permanently during or after the divorce proceedings, you should seek consent from the other parent. If he or she does not consent to the intended relocation, you will have to make an application to the Court for permission to remove the children out of the jurisdiction of Hong Kong permanently. In determining such an application, the Court will decide whether it is in the best interests of the child to be permanently relocated to another country.

 

FAQs for Divorce with financial matters 1024x683 - Divorce Frequently Asked Questions | Haldanes

Financial Matters

9. What kind of financial relief orders could the Court make in the divorce proceedings?

The Court has power to make various orders for financial relief, for example, orders for periodical payments for spousal maintenance and/or children’s maintenance, lump sum payments, and the transfer or sale of property. After a petition for divorce has been filed, upon an application is made, the Court can also make orders for maintenance pending suit to be paid to the applicant or interim maintenance for the children of the family for financial support during the time that the divorce proceedings are ongoing.

10. How would the family assets be divided? Would a party be automatically entitled to 50% of the total family assets?

Generally, the Court will adopt the 50-50 sharing of matrimonial assets as a starting point. However, the Court will consider whether there are good reasons for departing in either direction from the 50-50 equal division. In this regard, relevant factors include the needs of the parties, financial resources of the parties, source of the assets, the duration of the marriage and the party’s contribution to the welfare of the family, and other factors.

 

FAQs for Divorce with Prenuptial Agreement 1024x683 - Divorce Frequently Asked Questions | Haldanes

Other Matters

11. Are prenuptial and postnuptial agreements recognised in Hong Kong?

In the case of SPH v SA, the Court of Final Appeal in Hong Kong ruled that whilst the Court is not obliged to give effect to nuptial agreements, it should give weight to such agreements where it is fair to do so. In other words, nuptial agreements are not strictly binding in Hong Kong.

Such agreements would only carry weight if each party had entered into the agreement of his or her own free will, having all the material information and intending that it should be effective to govern the financial arrangements if their marriage comes to an end.

It is advisable for both parties to seek independent legal advice before entering into any nuptial agreements.

12. Do I have any right if my partner and I are not married but we do have a child?

In this situation, the mother has all parental rights and authority in respect of the child born out of wedlock while the father does not automatically have such rights. However, the father may seek an order from the Court and would usually be granted such rights. The mother may apply for maintenance for the financial support of the child if the child lives with her. The Court also has power to make an order that an amount of allowance, commonly known as “Carer’s Allowance”, be paid to the primary carer of the child.

For details of our Matrimonial & Family law practice, please click here

Written by: Elsie Liu, Partner and Patricia Liu, Senior Associate

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