Divorce Essentials from a HK based lawyer

In technical terms, one could say, that the process of a relationship starts with dating, falling in love, and labelling it a relationship. Upon continued success, the relationship moves on to the stage of engagement and marriage.

Before and at the altar, no one usually mentions or even thinks about the word Divorce (unless OfCourse, you have discussed prenuptial agreements prior to your marriage). Everyone is focused, and rightly so, on celebrating the happiness of the newly wed.

Perhaps that is the main reason, I see the word Divorce as an intensely sad topic; a couple falls out of love and a family is separating. I've been struggling to spice up this topic to be appealing and engaging to read. The truth is that legal topics are rather boring but preparation and knowledge for important situations in life that may or may not happen, is key.

So, spicy or not, in this article I am setting out the essentials to consider for a Divorce.

Relationship(s)

Rather obvious, but to start a Divorce a couple must first be in a relationship that is legally recognized in Hong Kong. Nowadays, a couple can engage in a variety of relationships: a civil partnership, religious marriage, same sex marriage, and polygamous marriage (to name a few). Such partnerships may be common amongst the multicultural society in Hong Kong, but the laws in Hong Kong do not recognize them. This means that there is no option to file for divorce proceedings, unless (and if possible) such partnership is changed into a partnership recognized under the laws of Hong Kong.

Assets

In Divorce proceedings, the courts take a 50/50 distribution approach for matrimonial assets (including overseas assets). However, the actual distribution is determined by the court based on fairness. Your financial position (post-divorce) depends on the circumstances at hand and the court’s assessment and decision on the actual distribution. I can imagine this to be quite daunting and a pre-nuptial agreement may aid in this regard. Prenuptial agreements are not binding in the courts of Hong Kong and the courts follow the legislation in the making of financial orders in Divorce proceedings. However, following legislation, the courts in Hong Kong now give full effect to prenuptial agreements as may be permitted by law provided that the agreement was entered into in the couples’ own free will, the couple had a full appreciation of the implication of the prenup, and it must be fair in the circumstances prevailing to hold the parties to the prenup. If you want to be prepared and influence the situation beforehand, a prenuptial agreement may be your solution.

Children

From the moment a child is born, their welfare is the most important consideration in any situation. This is no different for the courts in Divorce proceedings. A decree to finalize a divorce will only be granted if the court is satisfied with the arrangement for children. You and your partner are encouraged between yourselves or via mediation to resolve arrangements for the children. In case of a dispute, a children’s dispute resolution procedure will begin with a judge as facilitator to assist in settling the arrangement. A costly and more invasive procedure, that is best to be avoided (if possible).

With a prenuptial or post-nuptial agreement in place and arrangements for children mutually agreed in hand, a divorce procedure can be more efficient and less time consuming.

Let’s look at a brief overview of important steps to consider before filing your Divorce application.

Jurisdiction

A divorce application may be filed only if you have been married for at least 1 year unless there are reasons for the court to allow otherwise. If you are married abroad, a party may choose to have a divorce in Hong Kong after proving that husband or wife (i) is domiciled in Hong Kong, (ii) is habitually resident in Hong Kong for 3 years prior to the divorce application, or (iii) has a substantial connection with Hong Kong. The marriage is not governed by Hong Kong law, but the Divorce proceedings will be governed by Hong Kong law.

You establish that Hong Kong has jurisdiction to review your divorce application. But from a pragmatic perspective, is Hong Kong the best place to file your application if you also have a close connection with another country? To answer this question, you may want to consider the following factors:

· determine each country’s divorce rules in relation to children and financial matters.

· consider ease of enforcement rules of any court orders.

· access to lawyers and court attendance is easier if you reside in the country.

· communication with lawyers and court may be convenient in your native language.

Grounds

Once you have decided that Hong Kong is the best place to file your application, the next step is to determine the grounds for your application. A lot of time, effort, and costs are involved in starting a Divorce proceeding. You cannot simply apply for a Divorce just because you feel like it. The marriage must be broken down irretrievably as the sole ground for making an application for Divorce. The application (whether it is the husband or wife) must satisfy one or more of the following facts:

· that your spouse has committed adultery and that you find it intolerable to live with him / her

· that your spouse has behaved in such a way that you cannot be reasonably expected to live with him / her

· that you and your spouse have lived apart for a continuous period of at least 1 year before filing the petition and that he / she agrees to a divorce

· that you and your spouse have lived apart for a continuous period of at least 2 years before filing the petition (in such a case your spouse's consent to a divorce is not required)

· that your spouse has deserted you for a continuous period of at least 1 year before filing the petition

In the case of a joint application, you and your spouse must prove to the court that you have lived apart from each other for a continuous period of at least 1 year before making the application.

Enforcement

The Divorce Decree granted by courts in Hong Kong may not be enforceable in all countries outside Hong Kong. Before you start the application for a Divorce proceeding, check for recognition of the Divorce Decree in the countries you intend (and need) to use the decree. It will help you save time, efforts, and unnecessary costs.

Let’s end on a positive note, if you have found love again, it is possible to apply for a marriage license after your divorce is finalized and the Decree Absolute is granted. You may apply for a Decree Absolute six weeks after the court granted the Decree Nisi. The Decree Absolute makes the divorce fully effective. The Decree Nisi will not be made absolute until the court is satisfied with the arrangements for the children.