Kimberly Ann Dasse, a family law practitioner based in Hong Kong, has prepared a series of articles on divorce proceedings, examining some of the main steps on the path to dissolving a union. Last week she covered length of marriage and jurisdiction. This week she covers “grounds” and “facts” for divorce.
In Hong Kong there is only one ground for divorce: that the “marriage has broken down irretrievably”. To prove this ground, a party must establish at least one of five facts: unreasonable behaviour, one year separation with consent, two year separation, desertion, or adultery.
To establish this fact, the petitioner must establish that the the respondent has behaved in such a way that the petitioner cannot “reasonably be expected to live with the respondent”. Generally the behaviour cannot be ancient history and should have occurred within the six months prior to filing the petition to avoid increased court scrutiny into the particular.
The courts encourage parties to attend mediation and attempt to resolve their differences rather than going to trial on the petition. Solicitors are required to advise their clients of this option and most solicitors actively encourage their clients to attend mediation. Thus, to keep matters amicable, most parties will allege mild facts and avoid “trashing” the respondent as tempting as that might be. For example, instead of saying “she is a cold fish!”, the petitioner might say that the respondent does not demonstrate love and affection; rather than “he completely ignores me!”, one might state that the respondent does not communicate.
One Year Separation with Consent
Where parties have lived apart for one year and the respondent consents to entry of a divorce decree, the petitioner can allege one year separation with consent and avoid having to make claims of unreasonable behaviour. The parties do not have to maintain separate residences to prove this fact, but the parties must reside in separately to clear scrutiny of this fact.
Two Year Separation
The differences between one year and two year separation is the length of time and the elimination of the requirement that the respondent consent to entry of a divorce decree.
This fact is established when the petitioner establishes that the respondent has intentionally and permanently forsaken and abandoned the marriage without consent and without reasonable cause for one year prior to filing the petition.
The mere fact that a party had an adulterous relationship is insufficient to prove the fact of adultery. The petitioner must also allege that s/he finds it intolerable to live with the respondent as a result. The courts have noted that the act of adultery must be voluntary and with a person of the opposite sex and, generally, the paramour must be named as a second respondant in the action.