Hong Kong Court have Jurisdiciton on Divorce: The Three Senerios
According to Section 3 of Cap. 179 Matrimonial Causes Ordinance, the Court shall have jurisdiction in proceedings for divorce under this Ordinance if –
- either of the parties to the marriage was domiciled in Hong Kong at the date of the petition or application;
- either of the parties to the marriage was habitually resident in Hong Kong throughout the period of 3 years immediately preceding the date of the petition or application;
- either of the parties to the marriage had a substantial connection with Hong Kong at the date of the petition or application.
Domiciled in Hong Kong
The rules laid down in section 5 of Cap. 596 Domicile Ordinance defined domicile of adults. “On becoming an adult, an individual retains the domicile that he had immediately before he becomes an adult. An adult acquires a new domicile in a country or territory if he is present there and he intends to make a home there for an indefinite period.”
Even a person is a Hong Kong permanent resident, if he does not reside in Hong Kong very often, it could be said that he does not domicile in Hong Kong. In Y v W [2012] 2 HKC 455, the Court confirms that: –
- Having Hong Kong Permanent Resident Status could not sufficiently be identified as a domicile in Hong Kong. A few factors have to be considered before concluding that a person domiciled in Hong Kong. For example, the duration of residing in Hong Kong, the nature of the residence in Hong Kong (whether the property is purchased, rented, a serviced apartment or a hotel), is the other party a Hong Kong permanent resident, where do the other family members reside in, do you have any substantive business connections in Hong Kong, location of assets, the nationality and schooling of children.
In this case, the husband has both the Hong Kong Permanent Resident Status as well as United States Passport. The husband was born and raised in the United States and moved to Hong Kong together with his parents when he was 15. He attended secondary school in Hong Kong and went back to the United States for University. He then moved to Shanghai when he was 24 and resided there for 16 years. He came back to Hong Kong a year before the divorce proceeding was commenced.
The Court ruled that the husband’s place of domicile changed several times. He first domiciles in the United States and changed to Hong Kong upon moving to Hong Kong together with his parents. The place of domicile then changed to Shanghai when he decided to settle in Shanghai. As the husband claimed that moving back to Hong Kong a year before the divorce proceeding is commenced is just temporary, the Court believed that the place of domicile of the husband did not change to Hong Kong.
Substantial Connection
The term“Substantial Connection” was elaborated in cases such as S v S [2006] 3 HKLRD 751, ZC v CN [2014] 5 HKLRD 43, LCYP v JRK (CACV No.98 and 125 of 2015): –
- In short, whether a person has a substantial connection with Hong Kong shall be assessed via broad objective assessment.
- There are two stages for this assessment. Firstly, does the person has a connection with Hong Kong? Secondly, is the connection with Hong Kong substantial?
- A person could have substantial connections with various places. Therefore, it is not necessary to compare which place that person is more substantially connected to.
- The term “substantial” should be referred to its natural and ordinary meaning, which is more than “a little” but less than “great”.
- Fabricated evidence to show a substantial connection for the divorce proceeding would not be considered.
- The location of the matrimonial home and the duration of the parties staying in Hong Kong do affect whether the parties have a substantial connection with Hong Kong. This might not be the ultimate determining factor as the weigh of factors differs from case to case.
- Nonetheless, it is crucial to analyze whether a party has a substantial connection to Hong Kong prior to the commencement of the divorce proceeding.
- In terms of connection, physical presence in Hong Kong is needed for the Hong Kong Courts to exercise its jurisdiction; then the Court will consider whether the connection is intimate, a close connection cannot be temporary or transitional, or else this may encourage people to fly in and fly out for divorce.
Practically speaking, those who have a “substantial connection” with Hong Kong usually reside in Hong Kong for more than a year, has Hong Kong Permanent Resident Status or has working visa or other kinds of visa which allow them to reside in Hong Kong and has an intention to continue to stay in Hong Kong. For example, working in Hong Kong, family members residing in Hong Kong, children attend schools in Hong Kong and having property investments in Hong Kong.
Please do not hesitate to contact our team for more information related to divorce proceedings in Hong Kong.