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The Hong Kong Courts have jurisdiction to entertain a divorce petition if either of the parties to the marriage is:
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at the time of application, domiciled in Hong Kong or has a substantial connection with Hong Kong; or
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| b) |
is habitually resident in Hong Kong throughout the period of 3 years immediately preceding the date of the petition or application.
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As the law currently stands, there is only one possible ground on which a party to the marriage can petition the Court for divorce. The Petitioner must be able to show to the Court that the marriage has broken down "irretrievably".
Ridiculous as it may first seem, the Petitioner is only allowed to rely on one of the five "supporting facts" to prove that the marriage has broken down "irretrievable". These five "supporting facts" are:
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adultery;
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| 2. |
unreasonable behaviour by the other spouse;
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| 3. |
one-year separation with consent;
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| 4. |
two-year separation without consent; and
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| 5. |
one-year desertion.
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Hong Kong Family Law is designed to buttress the stability of marriages. Hence, for example, save with the express permission of the Court, no party to a marriage can start a petition for divorce unless and until the parties have been married for at least one whole year. Further, the parties to a marriage must obtain TWO decrees in order to be considered divorced and free to re-marry.
The first decree is called a "Decree Nisi". After the Court has granted a Decree Nisi the Petitioner must wait for six weeks before applying for a "Decree Absolute".
Once the parties to a marriage have obtained both decrees they would be considered divorced and free to re-marry.
The Court will not grant a Decree Absolute unless it is satisfied that:
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the welfare of every child of the family is protected; and
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| b) |
the financial provisions made by one party to another, if any, is reasonable and fair or the best that can be made in the circumstances. |
Either party to a marriage may apply for:
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financial provisions (e.g. lump-sums or periodic payments); and
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| b) |
property adjustment (e.g. transfer of property, settlement of property, sale of property etc.)
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There are three possible methods of quantification.
First, the Court may use the "one-third rule" in quantifying income and capital orders, in which case the recipient spouse would be able to receive an amount which could bring her income up to one-third of that of the parties taken together.
Second, the Court may adopt the "net-effect" approach, in which case the Court will calculate the parties’ available resources and then make deductions of all items reflecting the parties’ needs.
Third, the Court may use the so called "Duxbury calculation", in which case the Court will provide a lump sum to the recipient spouse calculated to meet his or her needs for life.
The Court may also order either party to make periodic or lump sum payments for the benefits of the children of the marriage. "Children of the marriage", for these purposes, include any children who have been treated as part of the family.
In assessing the amount of money to be paid for the benefits of these children the Court will take into account:
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the children's financial needs;
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| b) |
the children's own income, if any;
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| c) |
the children's physical or mental disabilities, if any;
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| d) |
the family's standard of living; and
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| e) |
the children's educational needs
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In all legal proceedings where the custody of a minor has to be considered, the Court's paramount consideration would be to protect the minor's welfare.
The following factors would also be taken into consideration:
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the wishes of the minor; and
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| b) |
any other material information.
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The Court may make an order for custody and education of any child below the age of 18:
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in any proceedings for divorce; or
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| b) |
within a reasonable period after the dismissal of any such proceedings.
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The Court may make any of the following orders:
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a "sole custody" order whereby most parental rights and authority are transferred to the custodial parent exclusively;
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| b) |
a "split" order;
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| c) |
a "joint custody" order;
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| d) |
an order whereby he custody of the child is granted to the Director of Social Welfare; or
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| e) |
a "supervision" order whereby custody is granted to an independent person.
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