HK-China Cross-Border Divorce - hklegal
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HK-China Cross-Border Divorce

In recent years, the number of HK-China cross-border marriages has been increasing. A speed dating company has found that 48% of Hong Kong men and 44% of Hong Kong women accept HK-China cross-border marriages, with Hong Kong men mostly believing that Mainland women are more gentle and physically attractive. As for women who accept Mainland partners, men in Shanghai and Beijing are more popular.

Cross-border marriage between individuals from Hong Kong and Mainland China has become increasingly common in recent years, as Hong Kong and the Mainland have developed closer ties in economic and cultural fields. There are approximately 50,000 marriages registered each year in Hong Kong, of which about one-third are cross-border marriages. There are some 20,000 divorce applications each year.

The laws and procedures dealing with family matters differ enormously between Hong Kong and Mainland China. The recognition and enforcement of civil judgments in family cases in Hong Kong and Mainland China have long been faced with difficulties.

Understanding the HK-China divorce proceedings

Entitlement to a Divorce in Hong Kong

According to section 3 of the Matrimonial Causes Ordinance (the “Ordinance”), Hong Kong Courts have jurisdiction in proceedings for divorce if either of the parties to the marriage was domiciled in Hong Kong, was habitually resident in Hong Kong throughout a period of 3 years before the date of the petition or application for divorce or had a substantial connection with Hong Kong at the date of the petition or application. “Substantial connection” has not been defined in the Ordinance, but factors such as having employment, assets or children who study here are likely to satisfy the requirement.

The requirement is for either of the parties; therefore, in the scenario above, if the wife wishes to initiate proceedings in Hong Kong, she may do so even though she is not resident in Hong Kong. This is because she may rely on her husband being habitually resident in Hong Kong as a basis for divorcing here.

Hong Kong-style divorce

Must-know facts about Divorce

In general, HK-China divorces can be divided into the following five types:

The Kingdom Consultancy’s team can speak in fluent Mandarin and has sufficient experience in handling HK-China divorce cases about divorce proceedings, divorce agreements, alimony, child custody.

Tel: 134-3113-1343 

HK-China Cross-Border Divorce Services

helping you in family court

Managed Divorce Service Fees

Managed divorce sevices include:

  • We would be able to help you with child custody, alimony as well as property division issues via face-to-face consultation meetings so that your application can be handled in a time-saving, efficient and professional manner.

Other managed divorce services available:

  • HK-China Cross-border
  • Divorce Settlement
  • Notice of Separation
  • Manage application for custody, care and control of the child(ren)
  • Manage application for financial support which includes family assets, properties and monthly alimony payments
  • Illegitimacy
  • Recover or modify alimony
  • Restraining order
  • Explaining the assessment of general separation/unreasonable behaviour
  • Assessment of children’s living expenses
  • Hearing Advisory Service

It takes five months to complete all procedures for an uncontested divorce (An interim divorce order can occur within three months)

Frequently Asked Questions (FAQs)

HK-China Cross-Border Divorce Issues

You can. You can still apply to the court for an order to publish a notice in a newspaper or to send documents to a relative or friend that the missing person may have contact with in order to commence divorce proceedings.

You may be eligible for applying for a divorce in HK if:

  • one of the parties is domiciled in Hong Kong;
  • or one of the parties has close ties with Hong Kong;
  • or one of the parties has often lived in Hong Kong for the past three years.

For the sake of saving unnecessary costs, before you start the divorce proceedings, it is vital to check for the recognition of the divorce decree that you intend to obtain, that is, whether it would be recognized by the Hong Kong Court, or whether the Hong Kong divorce decree is recognized by other countries.

Although the divorce decree granted by Hong Kong Court is recognized in many countries, it is not recognized in all places. In this regard, you should consult your lawyers.

An upward adjustment was made in all HK-China divorces’ price as all domestic documents must be served by the High Court from August 2019 onwards, which will make the processing time relatively longer than other local cases.

Given the fact that Hong Kong is an international financial centre, it is common in Hong Kong for either or both parties to a marriage to have a close connection with another country, this is particularly so among the expatriates.

It is important to consider from a pragmatic perspective whether or not Hong Kong is the best place to initiate the divorce proceedings.

The following factors are of relevance:

  • How each country under consideration deals with divorce, the custody of children, and the financial matters - there may be vast significant differences, particularly over financial matters.
  • For instance, in the US and Canada, they have ‘community property’ laws, so that “marital property” (i.e. property acquired during the marriage) is divided equally on divorce.
  • One cannot obtain a divorce in Australia or New Zealand until you have been separated for a year. New Zealand courts approach the division of capital assets in a similar way as in the States and Canada and do not place as much emphasis on maintenance rights as the courts in Hong Kong do.

Also, although the systems of divorce in Hong Kong and in England and Wales are very similar, they are not identical. It is important to have regard to the ease of enforcement of any court orders obtained against his or her spouse.

For example, if your spouse refused to pay alimony, what action can be done against his or her assets? (It is usually convenient and most beneficial to charge or freeze against his or her assets when the court orders are made in the country in which the non-complying spouse lives and/or the main family assets are situated).

It is usually more convenient to initiate the divorce proceedings in the country in which you reside because of the easier access to your lawyers and attendance in court if necessary. If either or both parties to the marriage have substantial or close connections with one or more alternative countries or if your spouse is intending to institute proceedings in one country when it occurred to you that the legal system of another country might be available and of greater benefit to you, then you should seek legal advice from a matrimonial lawyer in each country before starting any divorce proceedings in order to make an informed decision.

This has to be done without delay, failing which time (which is closely related with costs) would be wasted. If both parties commence divorce proceedings in different countries, it is likely that it would give rise to a costly dispute over which country is the most appropriate place or forum for dealing with the divorce. The parties may even compete to obtain the first divorce decree, since the forum or the country in which the first decree is made will then be empowered to deal with the important ancillary matters of children and finance.

Details of the application of and legal principles behind section 7 are found in the Court of Final Appeal judgment in LKW v DD [2010] 13 HKCFAR. The Court of Final Appeal agreed with the just and equitable principle of allocation laid down in the English judgment in White v White [2001] 1 AC 596. The Court of Final Appeal laid down four principles and five steps for applications for ancillary relief:

 

The four principles:

i. to achieve fairness as the objective;

ii. all types of discrimination are disapproved of;

iii. balanced allocation;

and iv. retrospective investigation is disapproved of.

 

The five steps:

i. determination of assets;

ii. assessment of the economic needs of both parties

iii. the decision to apply the 50-50 sharing principle;

iv. grounds for not applying the 50-50 sharing principle; and v. determination of allocation result.

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