Divorce:

Starting the Process:

I want a divorce. What do I do first?

Answer: File a "Divorce Petition" stating the marriage is broken beyond repair. Choose "Divorce Main Suit" for dissolving the marriage, "Children" for custody/access, and "Ancillary Relief" for property and finances.

Grounds for Divorce:

Does "fault" matter? What reasons are valid for divorce?

Answer: "Fault" doesn't matter anymore. You can claim one of these reasons: adultery, unreasonable behavior, separation (with or without consent), desertion, or joint application.

How long until I can remarry?

Answer: Wait for the "Decree Absolute" (after settling financials and child arrangements). Mediation can speed up the process.

4. Cost of Divorce:

How much does it cost?

Answer: Depends on complexity and agreements. More arguments = higher costs due to lawyer/court involvement. Agreeing on things keeps it cheaper.

Marriage Abroad, Divorce in Hong Kong:

I got married elsewhere but live in Hong Kong. Can I divorce here?

Answer: Yes, if you have: proof of marriage, lived in Hong Kong for 3 years, or have a close connection to Hong Kong. Show this in your "Divorce Petition."

Children and Custody:

What about my children?

Answer: The "Children" section of your petition addresses custody, care, and access arrangements. Consider mediation to reach agreements for your children's well-being.

Property and Finances:

How are assets and debts divided?

Answer: The "Ancillary Relief" section deals with dividing property and finances fairly. Again, mediation can help reach mutually beneficial agreements.

8. Defended vs. Undefended Divorce:

What if my spouse disagrees with the divorce?

Answer: An "undefended" divorce means your spouse agrees. If they disagree ("defended"), a court trial might be needed.

Legal Representation:

Do I need a lawyer?

Answer: It's advisable to consult a lawyer for guidance and representation, especially in complex cases.

Mediation vs. Court:

Court or Mediation:

Should I go to court or mediate?

Answer: Mediation is often faster, cheaper, and less stressful than court battles. It encourages cooperation and agreements that benefit everyone.

Hong Kong Custody Arrangements During Divorce: What You Need to Know

Understanding Custody, Care & Control, and Access

Types of Custody:

Sole Custody: One parent makes major decisions about the child's upbringing, but the other parent still has consultation rights.

Joint Custody: Both parents share decision-making responsibilities, usually on major issues like education and religion.

Important Note: In practice, joint custody often comes with shared consultation rights, even for the "sole" parent, meaning major decisions still involve both parties.

Care & Control:

This refers to the parent who makes day-to-day decisions and the child's primary residence. Shared care and control arrangements also exist.

Access:

For the non-custodial parent, this defines the amount of time they spend with the child, determined by agreement or court order.

Court's Decision-Making:

The "Welfare Principle" guides the court's decisions, prioritizing the child's best interests. They consider various factors like:

• Age, background, and capabilities of parents and children
• Financial resources
• Physical and mental health of all parties
• Accommodation for the children
• Children's wishes (age-appropriately)
• Maintaining sibling relationships
• Family religion and culture
• Professional reports
• History of family violence (if any)

Reaching Agreements:

Mediation is highly encouraged to avoid costly litigation and emotional stress for everyone involved. Working together on a parenting plan benefits both parents and children.

Does Hong Kong Favor Mothers in Divorce?

No. While stereotypes exist, the court is impartial and considers all relevant factors in each case. The outcome depends on individual circumstances, not gender.

Moving with Children after Divorce:

Mother wants to remove the child from Hong Kong to study abroad (temporary) or emigration (permanent).

Removing children from Hong Kong, even temporarily, requires the other parent's consent. A legal agreement outlining travel dates and return ensures smooth processes. Permanent relocation also requires consent. If it's denied, legal counsel and court applications become necessary.

Remember: Removing children without consent is considered child abduction.

Spousal Maintenance in Hong Kong Divorce: What You Need to Know

Understanding Spousal Maintenance:

During a Hong Kong divorce, spousal maintenance decisions consider each party's specific circumstances. Here's an overview:

Factors the Court Considers:

• Income and Earning Potential: Present and future financial capabilities of both parties.
• Financial Needs and Responsibilities: Current obligations and needs of each spouse.
• Pre-Divorce Lifestyle: The standard of living enjoyed when the marriage was intact.
• Age and Marriage Duration: Age of each spouse and length of the marriage.
• Physical or Mental Health: Health limitations affecting earning potential.
• Contributions to the Family: How each spouse contributed to the family's well-being.
• Benefits Lost due to Divorce: Any benefits forfeited by either spouse after the separation.
• Overall Case Conduct: Behavior of both parties throughout the divorce process.

Temporary Maintenance:

You can apply for "maintenance pending suit" while awaiting the final divorce decree. This temporary order might change with the final decision.

Other Financial Arrangements:

Besides maintenance, the court may:

• Order periodical payments (regular installments)
• Secure periodical payments (backed by assets)
• Order property sale for asset division
• Make property adjustment orders (redistribute assets)

Dividing Assets in Hong Kong Divorce:

Beyond the 50/50 Myth Sharing Assets Fairly:

Hong Kong's Court of Final Appeal has established that spouses are generally entitled to equal asset division during divorce (LKW v DD (2010) 13 HKCFAR 537).

Beyond the 50/50 Rule:

While equal division is common, other factors can influence asset distribution:

Periodic Maintenance: A spouse might also receive spousal maintenance.

Clean Break Orders: In some cases, a "clean break" may be ordered, ending financial dependency and providing a lump sum (or installments) to achieve financial independence. This typically happens when sufficient resources exist for such a settlement.

Remember: The 50/50 rule serves as a starting point, not a rigid formula.

Child Maintenance in Hong Kong Divorce: Supporting Your Children

Financial Support for Children:

The parent with primary care and control of the children can request financial support from the other parent.

Interim Maintenance:

Pending the final divorce decree, you can apply for "interim maintenance pending suit" for immediate financial assistance for the children.

Factors for Determining Child Maintenance:

The court considers several factors, including:

• Children's Financial Needs: The cost of raising and supporting the children.
• Pre-Divorce Lifestyle: The standard of living the children enjoyed before the separation.
• Children's Health and Disabilities: Any special needs impacting expenses.
• Upbringing and Educational Expectations: The children's education and overall upbringing style.
• Parents' Financial Resources and Responsibilities: Each parent's financial capabilities and obligations.
• Children's Own Income or Assets: Any independent income or resources the children might have.

Aiming for Fairness:

The court strives to place the children in a financial position similar to what they would have had if the marriage remained intact.

Flexibility and Adjustments:

Child maintenance orders can be modified at any time, before or after the final divorce decree.

Mediation:

Can I avoid court by going to mediation?

Yes, if you and your spouse agree, mediation can help settle issues outside of court, saving time and money. It's not marriage counseling, though.

What happens in mediation?

A mediator guides you and your partner through individual or joint talks to find solutions that work for both. Lawyers can help, but it's confidential.

How long does mediation take?

Depending on the complexity, it can be as short as a day or take several months.

Prenuptial & Postnuptial Agreements:

Can I get a prenup in Hong Kong?

Yes, but they aren't legally binding. However, courts may consider them in divorce cases.

What should a good prenuptial agreement include?

Both parties should understand and agree to the terms, with full financial disclosure and independent legal advice for each.

Can I get a postnuptial agreement?

Yes, but similar to prenups, they aren't strictly binding in Hong Kong. The same considerations apply.

Separation:

What is judicial separation?

It's an alternative to divorce where you live separately but can't remarry. Useful for religious or financial reasons.

What are grounds for annulment?

An annulment declares a marriage invalid due to reasons like bigamy, lack of consent, or mental incapacity.

Same-Sex Partnerships:

Are same-sex marriages recognized?

No, only heterosexual marriages are valid in Hong Kong.

What rights do unmarried couples have?

Unmarried couples don't have the same rights as married couples. However, certain laws protect cohabiting couples in specific situations, like domestic violence.