JOCELYN TSAO of Withers outlines some of the complexities of divorce in Hong Kong for international marriages, including divorce filing and relevant matrimonial law.
I am often asked whether it matters where parties to a marriage were physically married. My answer is always, no, but it may well matter where you decide to divorce. And where you decide to divorce would depend very much on where the parties are living at the time of the breakdown of the marriage โ or where they are most โconnected withโ.
Hong Kong is particularly experienced in these cases where the jurisdiction of the court can make a big difference, bearing in mind its large expat population and significant numbers of global citizens. Often, it could be that the parties can divorce in more than one jurisdiction and therefore have a choice of forum. It matters because, particularly in the division of assets, each jurisdiction has its own rules, and some are perceived to be more generous than others. Hong Kong and England and Wales are considered to be generous to the weaker party, taking into account as they do all assets worldwide and the principle that there is no room for gender discrimination and so the starting point is equality.
Requirements to file for divorce in HK
A spouse can file for divorce in Hong Kong if they are domiciled here, have lived habitually in Hong Kong for three years prior to filing, or have a substantial connection with Hong Kong. With the first two of these, it is fairly clear whether or not this will apply on the facts. You can only have one domicile, but with substantial connection, itโs possible to have more than one jurisdiction with which you have a connection.
This is regularly the basis on which many expatriates rely. It comes down to facts in the end. Where does one โkeep oneโs slippersโ, as one judge put it. The court will look at such factors as where the children are educated, time spent in Hong Kong, whether there is a lease or a business or bank accounts in Hong Kong. Just having permanent residency is not sufficient.
In Hong Kong, many parties may be able to establish a substantial connection with two or more jurisdictions. If so, the court will consider which would be the more appropriate forum. Itโs obviously undesirable to proceed in more than one place. Consider two sets of legal proceedings including travel, stress and, of course, legal fees. Hence, the courts will try to decide which jurisdiction should deal with the case, rather than allowing parallel divorce proceedings in two jurisdictions.
Disputing Hong Kong as the jurisdiction for divorce
If a party has filed in Hong Kong and the other wishes to dispute their right to do so, itโs for that party wishing to challenge the jurisdiction of Hong Kong to persuade the court there is no basis for the Hong Kong court to preside over the divorce case. In in they succeed in this challenge, that would be the end of the matter. The case can no longer proceed here. If not, the next point of contention would be whether Hong Kong is clearly and distinctly a better and more appropriate forum for the divorce, and whether the petitioner would have some sort of disadvantage if the matter continued elsewhere.
Forum disputes can be tricky and expensive. Itโs best to seek expert legal opinion in both Hong Kong and the other relevant jurisdiction before embarking on these arguments.
About Jocelyn Tsao
Jocelyn started her family law practice in 2007. She advises husbands, wives and partners on all aspects of matrimonial law including divorce, prenuptial agreements, child care and custody, and financial disputes. Sheโs also the managing director of the Withers office in HK.
Withers is at 30/F United Centre, 95 Queensway, Admiralty.
3711 1600 | withersworldwide.com
This article first appeared in the Winter 2025 issue of Expat Living magazine. You can purchase theย latest issue or subscribeย so you never miss a copy!
