FAQ on Divorce

In law, a person only has one ground to petition for divorce, i.e. the marriage has broken down irretrievably. Hong Kong does not recognize no-fault divorce, meaning you must provide a reason for your divorce application.

In short, the Family Court will accept one or more of the following grounds as proof:

1. adultery
2. behaviour unreasonably bad
3. separation with (1 year) consent to divorce
4. separation without (2 years) consent to divorce
5. desertion for 1 year

Separation i.e. either 3 or 4 is the commonly-cited ground.

• Adultery : spouse has committed adultery and you find it intolerable to live with your spouse;
• Bad behaviour : spouse has behaved in such a way that you cannot be reasonably expected to live with your spouse; Usually it is a series of misconducts or intolerable behaviour. This may include examples such as acoholic addiction, gambling addiction, neglect on family well-being, failing to maintain the family financially, violence on spouse, having affairs with opposite sex. However, a single incident of grave misconduct is enough such as causing heavy injury on spouse.

• work out an amount to pay
• arrange payments and take action if a parent does not pay
• sort out disagreements about parentage

You may get a legal separation.

To get a legal separation, you need to fill in a separation application and send it to the court. This requires costs and thus most people would agree separation by signing a separation agreement prepared by lawyers.

A legal separation is needed only if your spouse refuses. It allows you to separate, without divorcing.

You may want a legal separation if:

• you have religious reasons against divorce
• you’ve been married for less than a year
• you want time and space to work out if you want to end the marriage 

Sometimes, a case may require a party to instruct a barrister/counsel to handle the case. 

The party may seek professional advice from his lawyer:

• whether he should further instruct a barrister/counsel
• the likely fees

This may be necessary when the case comes out to be complex in terms of facts or laws. 

The legal fees to a barrister/counsel varies significantly. The relevant factors are: 

• the seniority of the barrister/counsel and 
• difficulty of the case. 

A senior counsel (shortly known SC) may require a professional fee of 1/3 to 1/2 of a million dollars. This is called "brief". Senior Counsel is no doubtful very expensive.

Making a joint application with your husband or wife

You can make a joint application if you both agree that you should get a divorce.

Filing documents in court is the only way to start a divorce. You can't apply online or by post. 

Applying for a divorce on your own

Make a sole application (by way of petition) if either of the following apply:

• your husband or wife does not agree you should get a divorce
• you do not think your husband or wife will cooperate or respond to notifications from the court

Some people find that mediation is quicker, less stressful and less expensive than going to court, and in many cases the court will expect you to consider mediation seriously before looking for the court to decide on the children's issues. By children's issues, we mean the children's maintenance and custody. 

Divorce mediation could be the way to go if you’re looking to settle outside of court. Mediation is typically a much faster process because there is no waiting period for a court date and no lengthy litigation process. Mediation is great for couples on good terms and willing to sit down to discuss their issues together.

A neutral third party will act as the mediator (they don’t need to be a lawyer), and they can help guide you to reaching a settlement agreement on your own terms. A mediator cannot give legal advice and won’t be making any final determinations as a judge would. That part is up to you and your spouse.

Yes. 

The general legal requirement is that a person can petition for divorce only if he/she has been married for at least 1 year. One may consider separation if the marriage is not yet of more than 1 year.

The Registrar of the Family Court must be satisfied that the petition has been served on the respondent. Service means bringing the proceedings to the counter party's notice and response. 

The legal representative can prove this to the court by: 

• showing that respondent has completed and returned to the Registrar a Form 4, or
• having the servicing clerk file an affirmation as evidence of service to that effect.

The Registrar of the Family Court will:

• make directions on the date, place and time of trial and 
• notify us and the other parties such as the respondent in the legal proceedings.

In the divorce process, the party applying or starting the application is known as the "petitioner". The counter party i.e. the opposite spouse is known as the "respondent". 

In adultery case, the party may make the adulterer as a co-respondent. 

On finishing filing of the petition, the representing lawyer will obtain a sealed copy of the petition to be served on every other party to the proceedings. Service can either be by hand or by post.

Divorce order is in 2 stages.

• The first stage: the court will give a decree nisi first.  A decree nisi is "temporary" order.
• The second stage: to get a final divorce order, which legally call "decree absolute". 

The representing lawyer shall apply to the court after 6 weeks of the decree nisi. 

They will send to the court a completed "Notice of Application for Decree Nisi to be made Absolute".

Don't fight, try to agree.

Divorce applications are often certain and known. Few people argue in court to resist a divorce order. If one does not wish to be caught by the spouse's surprise, talking is the preferred approach. Parties may discuss and have consensus with each other before making the petition and thus matters become predictable. 

If the case has children and the applying parties both wish to complete the process fast, one should endeavour to agree with the spouse on the children's arrangement i.e. on issues of custody, access and maintenance to children.

If you wish to complete the absolute process fast, you should endeavour to agree with your spouse on the children's arrangement. The arrangement mainly involves: custody, access, maintenance and daily care or upbringing.

You’ll need to include certain information in your petition.

• You and your spouse’s name and address
• The day and place your marriage was formalized
• Your marriage certificate: original or certified copy
• The address of the venue you were married in
• The information of any minor children
• Reason for divorce
• Spell out how you want to handle property division, child custody, spousal support, child support, etc.

If any of the information in your petition is incorrect or missing, your divorce papers likely won’t be accepted by the court, and you’ll need to re-file with the correct information.

Under the Domestic and Cohabitation Relationships Ordinance, the following categories of persons are within the scope of injunction orders: 

• Spouse or former spouse; 
• Cohabitant or former cohabitant ((whether of the same sex or of the opposite sex) who live together as a couple in an intimate relationship);
• Child of the victim or child who lives with the victim;

Under the Ordinance, the eligible person may apply to the District Court or the Court of First Instance foran injunction which either:

1. restrains the offender from using violence against the applicant or a child living with the applicant; or
2. excludes the offender from the matrimonial/shared home or from a specified part of the matrimonial/shared home or from a specified area, regardless of ownership of the property.

Where a Power of Arrest has been attached to an injunction, a police officer may arrest, without warrant, if you are being abused and threatened again by the perpetrator. 

The maximum length of an injunction order is 24 months. The order can be renewed once as the court sees appropriate.