Kimberly Ann Dasse, a family law practitioner at JC Legal 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. This week she covers length of marriage and jurisdiction required prior to filing a petition. Next week, she will examine “grounds” and “facts” for divorce.
There is a popular belief that “anyone can get divorced” in Hong Kong, but Hong Kong is not a fly-in, fly-out divorce jurisdiction. Rather, the legislature and courts require that individuals seeking to divorce here must establish the length of marriage and court jurisdiction.
Length of Marriage
In general, a couple must remain married for one year prior to filing for divorce. There are circumstances in which a court will permit a couple to divorce who have been married less than one year, but the person seeking a divorce will have to show that he is suffering exceptional hardship or experiencing exceptional depravity on the part of the spouse. Adultery, even multiple affairs, will not normally qualify as exceptional hardship or depravity.
There are three ways a petitioner can establish jurisdiction, by providing one of the parties: (1) has been habitually resident for three years in Hong Kong; (2) has been domiciled in Hong Kong; or (3) has substantial connection to Hong Kong, prior to filing the petition.
To prove habitual residence for three years, one need only demonstrate that he has been resident in Hong Kong for three years prior to filing the petition. Absences for work or vacations will not be deducted for the calculation, but an extended stay out of the jurisdiction of six months might.
A domicile is the geographic location of an individual’s permanent home. According to Hong Kong law, every individual can have one – and only one – domicile at a time, even if he has multiple residences. Thus, an individual born in Beijing and has resided in Beijing his entire life will be domiciled in Beijing.
An individual can, however, acquire a new domicile if he is present in a new territory and intends to make a home there indefinitely. Thus, in the above example, if the individual moved to Hong Kong as an adult, he would have to be present in Hong Kong and intend to make a home here for an indefinite period to change his domicile. An adult college student, for example, who moves to Hong Kong would not be domiciled in Hong Kong if he intended to return home or to another jurisdiction upon graduation.
To establish a substantial connection to Hong Kong, a party must establish that (1) there is a connection with Hong Kong and (2) the connection is a substantial one. In one recent case, the court ruled that having (1) residency, (2) a driver license, (3) bank accounts, (4) direct deposit of salary, (5) investment accounts, (6) insurance policies, (7) an off-shore business, (8) a bedroom in a family home containing personal effects, and (9) a registered marriage in Hong Kong was insufficient to establish a substantial connection to Hong Kong.
Each of the above bases for jurisdiction requires careful consideration. Accordingly, anyone considering filing a petition for divorce in Hong Kong should discuss jurisdiction with his legal practitioner prior to filing a petition to avoid questions being raised by the court and the risk of the petition being dismissed.
Published on LegalClarus on 29 April 2020
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