For many years the ties between Hong Kong and Mainland families have inevitably become closer. In 1991, only about 1.6% of marriages in Hong Kong involved a party from the Mainland, in 2006 this had risen to almost 43% and this has averaged out recently to about a third of all marriages in Hong Kong. Such families typically have assets and businesses in both jurisdictions and children born in either one or the other, with cross-border education, and extended family members living in both. Where, then, is the appropriate place for such families to finalise their divorce?
From 2017 to 2019, 18% of all divorce cases filed with the family court in Hong Kong involved cross-border couples and, until the recent legal changes allowing for the enforcement and recognition of decrees of divorce and judgements, this posed a real problem for such families.
Despite the closeness of family connections and the new reciprocal law which came into effect last year, the Mainland Judgements in Matrimonial and Family Cases (Reciprocal Recognition and Enforcement) Ordinance ("the Ordinance"), it may still not be possible for a couple who is domiciled or reside on the Mainland to file for divorce in Hong Kong and vice versa. Here are some of the frequently asked questions we have received from clients:
What legal issues should I consider before applying for a divorce?
There are usually three main issues in a divorce case - the divorce itself, the division of assets and the arrangements for the children. The courts in both Hong Kong and the Mainland can decide on all three matters, although there are differences between the two jurisdictions in terms of the court process and the law which govern these matters. If there is doubt as to which jurisdiction would be best, you may wish to speak to a lawyer based in both Hong Kong and the Mainland to explore whether there is any advantage for you to commence divorce proceedings in one of the jurisdictions over the other.
What are the main requirements for Hong Kong courts to have jurisdiction in relation to divorce, property and children's proceedings?
In Hong Kong, either of the parties to the marriage must either be i) domiciled in Hong Kong at the date of the petition for divorce; ii) have been habitually resident in Hong Kong continuously for three years immediately proceeding the petition; or iii) have a substantial connection with Hong Kong. Without satisfying one of these conditions, a divorce cannot take place in Hong Kong.
In Hong Kong, the finances are said to be 'ancillary' to the divorce suit, so a party who is divorcing in Hong Kong can also ask the Hong Kong courts to divide the assets. These assets include all assets held by the parties worldwide. For children, the jurisdictional requirements can be different as where the children reside is the most appropriate. However, commonly, the court where the divorce has taken place and the assets divided will also make orders relating to the children.
Domicile is where the party considers to be his or her home. An individual can only have one domicile, but it can change over time. For example, if a person was born in Hong Kong but went to live in Shanghai, and got married, worked and raised a family there, his domicile will probably have changed from Hong Kong to the Mainland.
Habitual residence is factual and comes down to whether the party has been living in Hong Kong in a settled way, making Hong Kong his or her home for three years continuously. It requires a physical presence in Hong Kong.
A party seeking a divorce can have a substantial connection with more than one jurisdiction. It may well be that many cross-border families can use this to justify jurisdiction in Hong Kong, while maintaining a connection with the Mainland. However, the courts are careful not to allow what has been called a 'convenient offshore divorce jurisdiction' and will look at the connection the family has with Hong Kong in terms of where they are settled. ID cards is not considered sufficient connection, nor just business interests. Generally, the family has to live in Hong Kong and be settled there with accommodation, schooling, employment and accounts etc. As with habitual connection, this will also come down to the facts of each case.
Do Hong Kong courts treat foreign nationals differently on divorce?
Hong Kong courts do not treat foreign nationals differently at all. Parties have to have had a marriage which is valid in their home jurisdiction but that need not be in Hong Kong. Place of marriage and nationality is irrelevant.
Am I still entitled to division of assets that are based in Hong Kong?
This can be tricky as there have been cases before the Hong Kong courts where the divorce has taken place in the Mainland and the court there has refused to deal with assets located in Hong Kong. If the applicant cannot prove jurisdiction as set out above, he or she will not be able to apply in Hong Kong either. In Hong Kong we have legislation which will allow for asset division when there has been a divorce overseas. However, leave must be obtained to make that application and the same jurisdictional requirements apply before leave will be granted.
How will the Reciprocal Recognition and Enforcement Ordinance play out if I do decide to divorce in Hong Kong?
The provisions for the effective recognition and enforcement of Mainland judgements are set out in detail in the Ordinance. As this is Hong Kong legislation dealing with the enforcement of orders in Hong Kong, there is significantly more detail in the Ordinance about how to enforce a Mainland divorce certificate, and how to enforce financial orders and orders relating to children than the other way round. Prior to the Ordinance, Mainland divorce decrees were recognised in Hong Kong in any event, as with any other foreign jurisdiction if the decree was legal in that country. There are also comprehensive provisions in respect of avoiding parallel proceedings in both jurisdictions. Once registered according to the rules, orders made in the Mainland will be enforceable as if they had been made in Hong Kong.
What is less clear is the enforceability of Hong Kong orders on the Mainland because this requires changes in the law on that side. It was the stated intention of both governments in a signed arrangement that orders and decrees be reciprocal and enforceable on both sides and theoretically, a party in Hong Kong can apply for a certified copy of a Hong Kong judgment and file it with the appropriate family court on the Mainland. A list of orders and decrees which are recognised and enforceable, so long as they are made after the commencement of the Ordinance (February 2022) and are effective in Hong Kong, is included in Schedule 3 of the Ordinance. Such orders include the decree of divorce or nullity, financial orders, adoption and parentage orders, custody orders, domestic violence orders and orders relating to applications for financial relief where the divorce has taken place outside Hong Kong.
Detailed advice should be sought to determine which jurisdiction may be available and preferable. It seems more straight forward on the Mainland side as enforceability in Hong Kong appears to be clearer, but there are still questions to be asked about the process in the Mainland courts (particularly in respect of discovery of documents required) and whether Mainland courts will adjudicate in respect of Hong Kong assets. What you do not want is costly litigation about forum.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.