As a former British colony, Hong Kong retains strong historical and cultural ties to the United Kingdom. Figures suggest that approximately 350,000 British citizens live and work in Hong Kong; as of the 2021 census, 120,000 Hongkongers reside in England (albeit this number is thought to have increased given changes to visa rules).
I grew up in this fast-paced city of skyscrapers, curry fish balls and impeccably efficient transport services, and spent formative years of my career practising law in Hong Kong. Having relocated in 2022 and qualified as a solicitor in both Hong Kong and England and Wales, I reflect on the similarities and differences in divorce law and processes in both jurisdictions.
DIVORCING IN HONG KONG AND IN ENGLAND AND WALES – SIMILAR, DIFFERENT?
Though Hong Kong is a part of China, as a product of its colonial history, the city’s legal system largely retains its common law system and in the context of family law, much of the legislation adopted during British rule. That has meant that there are a great deal of similarities between divorce law and in Hong Kong and particularly the pre-April 2022 regime in England/Wales – though there remain key differences.
In both jurisdictions there is only one ground for divorce which is that the marriage must have irretrievably broken down.
In Hong Kong, the petitioner to a divorce needs to prove that the breakdown based on one of five statutory facts:
- Separation of 1 year with consent
- Separation of 2 years without consent
- Adultery
- Unreasonable behaviour
- Desertion
These statutory facts in Hong Kong were based upon the statutory facts that existed in English law prior to April 2022, with differences. One can divorce in Hong Kong based on separation after just 1 year with consent of the other party (or 2 years if without consent) rather after 2 years with consent (or 5 years without) which used to be the case in England and Wales.
In England and Wales, since 6 April 2022, changes in the law introduced “no-fault” divorce whereby parties no longer need to rely on one of five statutory facts but simply need to confirm that the marriage has irretrievably broken down.
Stepping back, Hong Kong still therefore retains much of the language that has now been updated in family law in England and Wales. Not only in the facts, but also the fact that a person asking the court in Hong Kong to end their marriage petitions for divorce, obtains a decree nisi once the court is satisfied that they are entitled to divorce and the marriage is ended by a decree absolute. In England and Wales, we use the equivalent terminology of about divorce applications, conditional orders and final orders.
WHERE DO I DIVORCE – IN HONG KONG, OR ENGLAND AND WALES?
The first question to consider for individuals who have ties to both Hong Kong and England and Wales is to consider if the Family Court in each legal jurisdiction is able to deal with the divorce.
(NB: An important aspect to note from the outset is that Hong Kong does not currently have a general framework to recognise same-sex marriages (or partnerships) entered to in other jurisdictions, which means that parties to same-sex marriages are unable to divorce in Hong Kong, even if validly married elsewhere.)
In Hong Kong, by section 3 of the Matrimonial Causes Ordinance (Cap. 179), the courts in Hong Kong have jurisdiction if either of the parties to the marriage were:-
- domiciled in Hong Kong at the date of the petition (or joint application);
- habitually resident in Hong Kong throughout a period of 3 years immediately preceding the date of the petition (or joint application); or
- had a substantial connection with Hong Kong at the date of the petition (or joint application).
In England and Wales, likewise at least one of the parties needs to have a sufficient connection with the jurisdiction which is the case if:-
- Both parties are habitually resident in England and Wales;
- Both parties were both last habitually resident in England and Wales and one party continues to reside there;
- The respondent is habitually resident in England and Wales;
- The applicant is habitually resident in England and Wales and has resided there for at least one year prior to the application being made;
- The applicant is domiciled and habitually resident in England and Wales and has resided there for at least 6 months immediately before the application; or
- Both or either of the parties are domiciled in England and Wales.
One’s habitual residence is where the “centre of their interests” are and may be indicated by a balance of where a party spends the most time, where they live and work, where their children go to school, where their assets are held etc. Domicile is a more complicated concept and refers to the jurisdiction that a party considers their permanent home (even if they are not currently living there), which may be a domicile by birth, by choice or by dependence.
In my experience, it is highly possible that there can be dispute as to where a person is habitually resident if they are moving between Hong Kong and England and Wales frequently, for work or for family and there are assets in both places. Similarly, a person living and working in Hong Kong may be domiciled in England (or vice versa).
The second question to consider carefully if it appears that the courts in both Hong Kong and England/Wales would have jurisdiction, is which jurisdiction is more appropriate to avoid a potentially stressful and expensive dispute on where the divorce should proceed. A court would consider a wide range of factors including but not limited to where the properties and assets are, where the parties have lived and worked during the marriage, where the children are living and being schooled, the parties’ ties to each jurisdiction and their intentions going forward.
IS IT MORE ADVANTAGEOUS IN TERMS OF THE FINANCES TO DIVORCE IN HONG KONG OR IN ENGLAND AND WALES?
While there are some differences in the treatment of financial matters in Hong Kong as compared to in England and Wales which are outside the scope of this blog, the factors that are taken into account in each jurisdiction are extremely similar.
In Hong Kong, the factors are set out at section 7 of the Matrimonial Proceedings and Property Ordinance (Cap. 192) which themselves were based upon from the factors which are taken into account in the English and Welsh courts, under section 25 of the Matrimonial Causes Act 1973:
- The income, earning capacity, property and other financial resources which each of the parties to the marriage has or is likely to have in the foreseeable future;
- The financial needs, obligations and responsibilities which each of the parties to the marriage has or is likely to have in the foreseeable future;
- The standard of living enjoyed by the family before the breakdown of the marriage;
- The age of each party to the marriage and the duration of the marriage;
- Any physical or mental disability of either of the parties to the marriage;
- The contributions made by each of the parties to the welfare of the family, including any contribution made by looking after the home or caring for the family;
- The value of either of the parties to the marriage of any benefit (for example, a pension) which, by reason of the dissolution or annulment of the marriage, that party will lose the chance of acquiring.
The factors that the English and Welsh courts consider under section 25 of the Matrimonial Causes Act 1973 are identical, save that under the English law regime:
- It is specifically noted that in considering earning capacity, the court shall consider any increase in that capacity which it would be reasonable to expect a party to take steps to acquire.
- There is a specific provision within the legislation (as opposed to being part of the circumstances to be implicitly considered by the court) for the court to consider the conduct of each of the parties if the conduct is such that it would be inequitable for the court to disregard it. However, in practice, conduct rarely tips the balance of financial provision.
The Hong Kong courts in dealing with financial remedy applications (or in Hong Kong, ancillary relief) has adopted landmark English cases in relation to financial division to take a broadly similar approach.
For example, thedecision of the House of Lords in White v White [2001] 1 AC 596was adopted by the Court of Final Appeal of Hong Kong in LKW v DD [2010] HKFLR 016, enshrining the principle of ‘equal sharing’ of matrimonial assets in a shift from previous needs-based approach per C v C which had historically simply provided wives on divorce with enough to meet their reasonable requirements. Both courts in Hong Kong and in England and Wales recognise that in consideration of a “fair” distribution of the assets, there can be no place for discrimination between husband and wife and their respective roles in the marriage.
It is also however worth noting that in both jurisdictions, pensions are accounted for within financial settlement but in Hong Kong, the court does not have the power to make a pension-sharing order as is available under the Matrimonial Causes Act 1973.
The general principles of financial division are therefore very similar and in many cases, there will not be much difference between the outcome in England/Wales and in Hong Kong. There are some subtle differences and if you are able to potentially divorce in either England/Wales or in Hong Kong, we recommend that you speak with one of our specialist international family lawyers.
HOW LONG DOES IT TAKE TO DIVORCE IN ENGLAND AND WALES VERSUS IN HONG KONG?
The time that a divorce takes in any jurisdiction does vary from case to case, and is particularly dependent on the number of issues which are in dispute.
In England and Wales, after issuing a divorce application is issued, there is a 20-week “cooling-off” period prior to the applicant being able to apply for a conditional order, which is the order by which the court confirms it is able to grant a divorce. There is then a further 6-week waiting period prior to the applicant being able to apply for a final order which ends the marriage.
While in theory, it is possible on the basis of those timeframes to end a marriage within half a year or slightly longer (subject to court times) in reality it often takes longer to conclude a divorce if there are outstanding financial matters to be dealt with. In most cases, it is advisable to hold off on applying for the final order until the finances have been fully resolved by grant of a separate financial order to protect against loss of entitlements by prematurely ending the marriage before a financial order has been made.
In Hong Kong, the length of time that a divorce takes likewise depends on whether a divorce is “defended” or “undefended”. For undefended cases in which the issues are fully agreed and do not require setting down for further hearings, anecdotally, the timeframe from filing of the petition to the grant of decree absolute may be as short as 6 to 9 months subject to court capacity.
MAKING INFORMED CHOICES
If you are considering divorcing either in Hong Kong or in England and Wales, it is advisable to seek independent legal advice from lawyers in both jurisdictions who will be able to provide you with tailored advice appropriate to your situation as to the divorce process, your financial entitlements and children matters.
Should you have any questions arising from this blog, please do not hesitate to contact me (ejc@raydensolicitors.co.uk) or my colleagues at Rayden Solicitors.
