It depends.  In Hong Kong, you can file for divorce under the following grounds:

1. Adultery
2. Unreasonable Behaviour
3. One Year Separation with consent of the other party
4. Two Year Separation without consent
5. Desertion by your spouse for at least a period of one year

Joint Application

A Postnuptial Agreement is an agreement reached between you and your spouse during the marriage. The difference between a Prenuptial Agreement and a Postnuptial Agreement is when the agreement is prepared and signed. A Postnuptial Agreement is an agreement reached during the marriage, while a Prenuptial Agreement is an agreement reached prior to a marriage.

Similar to prenuptial agreements, postnuptial agreements are not binding in Hong Kong. However like prenuptial agreements, the Family Court may take the terms of the postnuptial agreement into consideration when ruling.

A Prenuptial Agreement is an agreement reached between you and your future spouse prior to marriage. A Prenuptial Agreement deal with financial issues, namely the division of property, maintenance for a spouse and other financial arrangements perhaps dealing with family businesses and trusts.

Strictly speaking, prenuptial agreements are not binding in Hong Kong.  Even though prenuptial agreements are not binding upon the Hong Kong courts, the Family Court may take the terms of the prenuptial agreement into consideration when making rulings in a divorce.

In Hong Kong, children issues are broken down into three areas:  (1) custody (2) care and control and (3) access.

CustodyCustody: In Hong Kong, you will either be granted “sole” custody over the children or share “joint” custody with the other parent. Generally speaking however, whether you receive sole or joint custody, each parent will always have a right to be consulted over major issues with respect to the children such as education, religion and health. Even if you are granted “sole” custody, the other parent can veto your decision by bringing this to the Family Court.

Care and Control:  This refers to the parent who will be responsible for the day-to-day decisions related to the children and whom the children will be living with on a day-to-day basis.

Access:  In cases where one parent has care and control, there will be an order for reasonable access.

When making orders relating to the children, the Family Court in Hong Kong will look to the best interests of the children.  The Family Court in Hong Kong will determine the children’s best interests by weighing the following factors:

• Preservation of status quo
• Age, sex and background of the parents and children
• Personality, capability and character of the parents
• Financial resources of the parents
• Physical and mental health of the parents and the children
• Accommodation for the children
• The children’s wishes/views
• Benefit of keeping the siblings together with one parent
• The religion and culture of the family
• Professional reports
• Suffering/risk of suffering of the children including any history of family violence
• Any other fact or circumstances that the Family Court thinks are relevant

This is a common question as there are many expatriates living in Hong Kong who wish to divorce in Hong Kong.  As long as you were validly married in another country and can provide a Marriage Certificate, then you can apply for divorce in Hong Kong.

Before doing so, you may want to consult with a divorce lawyer in your home country to determine the best place to divorce.

To divorce in Hong Kong, you need to show one of the following:

1. Domicile: Either you or your spouse was domiciled in Hong Kong on the date of the Petition
2. Habitually Resident: Either you or your spouse was habitually resident in Hong Kong for a period of three years immediately preceding the date of the Petition
3. Substantial Connection: Either you or your spouse had a substantial connection with Hong Kong on the date of the Petition

These facts will need to be addressed in the Divorce for Petition to show the Family Court that the Family Court has jurisdiction over the matter.

Not necessarily.  This is simply a stereotype. The Hong Kong Family Court will look at various factors and will weigh all factors before making a decision when it comes to children.  Each case is different and specific to each matter.

No, same-sex marriages are not recognized under Hong Kong law. Only heterosexual marriages are valid in Hong Kong meaning one party is male and the other party is female.

The parent with care and control is entitled to seek financial support for the children.  In determining child maintenance, the Family Court will look at all circumstances including but not limited to the following:

1. Financial needs of the children
2. Standard of living enjoyed by the family
3. Physical and mental disability of the children
4. Manner in which the children were brought up and the expectations of the parties for the children to be educated
5. Financial resources and needs or obligations of the parties to the marriage
6. Any income, earning capacity, property or other financial resources of the children

By looking at the above key factors, the Family Court is trying to place the children in a financial position similar to what they would have been had the marriage not broken down.

Many times, maintenance for children is needed immediately so the parent with care and control can seek interim maintenance before a final decision is made regarding children’s maintenance.

The Hong Kong Family Court will determine your ability to receive or pay spousal support (or “maintenance” as it’s called in Hong Kong) after weighing the following factors:

1. Income, earning capacity, property and financial resources now and in the foreseeable future
2. Financial needs, obligations and responsibilities
3. Standard of living enjoyed by the family prior to the breakdown of the marriage
4. Age of each party and the duration of the marriage
5. Physical or mental disability of either of the parties
6. Contributions made by each party to the welfare of the family including taking care of the family
7. Value to either of the parties of any benefit which that party will lose as a result of the breakdown of the marriage
8. Conduct and all circumstances of the case

While you wait for the Family Court to decide on maintenance, you can apply to the Family Court for interim maintenance (or “maintenance pending suit”) which is helpful when you have to pay bills and pay for expenses while waiting for a final determination.

To commence divorce proceedings in Hong Kong, you need to issue an Application for Divorce or a Petition for Divorce.

A Petition for Divorce lists the grounds upon which you are filing for Divorce.  Once the Petition for Divorce is filed, the Petition is served upon your spouse.

The Family Court will deal with your Divorce in three separate sections:

There are three (3) matters to consider when dealing with divorce:

1. Dissolving the marriage (Divorce Main Suit)
2. Children (custody, care and control, access)
3. Ancillary Relief (Distribution of assets, financial matters relating to you and the children)

To commence divorce proceedings in Hong Kong, you need to issue an Application for Divorce or a Petition for Divorce.

A Petition for Divorce lists the grounds upon which you are filing for Divorce. Once the Petition for Divorce is filed, the Petition is served upon your spouse.

Unmarried couples are not entitled to the same rights as married couples.  There is no such thing as a “common law” couple in Hong Kong.

However, cohabitating couples may be protected under certain laws for example laws relating to domestic violence in relationships or laws related to children born out of wedlock.

In Hong Kong, overseas surrogacy agreements are not enforceable and Hong Kong commercial surrogacy agreements are illegal.

As this is a very new and developing area of law in Hong Kong, you should consult with a qualified professional who is familiar with the laws of Hong Kong to ensure that no illegal activity is committed.

Yes, if you are not prepared to file for Divorce, then another option would be a Judicial Separation in Hong Kong. In Hong Kong, you can obtain a separation based on either (1) adultery or (2) behavior.

But you must remember that if you are separated, you are not divorced so you cannot get remarried. So if you decide to remarry, you still have to get a divorce.

If on the other hand, you want an annulment, you have to prove that the marriage was invalid.  Invalid could be for example, bigamy or the other party did not validly consent to the marriage because he/she was under duress, mistake or unsoundness of mind. These are only a few examples of what would constitute a basis for annulment.

Mediation is when you and your spouse agree to meet with a professionally trained mediator.  The mediator will help facilitate discussion between you and your spouse about key issues that need to be resolved.  A mediator is not a judge and cannot make orders, but a mediator will explain how the Hong Kong Family Court may determine a certain issue based on your specific circumstances.

You and your spouse can elect to attend mediation to resolve issues rather than go through the Family Court system in Hong Kong.  Mediation can help alleviate the emotional and financial drain of litigation.

Mediation can be conducted by way of individual and/or joint sessions. If you or your spouse enlist the representation of a solicitor, your solicitor can assist you in the mediation process as well.

Depending on the complexity of the outstanding issues, mediation sessions can take as little as a day and can extend to an intermittent period of several months.

In Hong Kong, assets are split 50/50 which is the starting point for a division of assets in a divorce.

You may re-marry after a Decree Absolute is granted.  The timeline for the grant of a Decree Absolute varies and is dependent upon the resolution of the financial and children issues which must be approved by the Family Court.  To avoid an arduous and long drawn-out process, there is incentive for divorcing couples to mediate.