IV. Procedures and grounds for divorce
Divorce and matrimonial proceedings are generally heard in the Family Court section of the District Court before a District Court judge and proceedings for divorce must be instituted either by a petition for divorce or by an application for divorce.
If it becomes clear that a case raises a difficult point of law or involves assets of considerable value then either party can apply to transfer the case to the High Court. A High Court judge is more experienced and therefore better qualified to deal with complicated cases.
Certain matters must be commenced in the High Court, such as application for wardship (i.e. The custody of the child is given to the Court. More details of wardship are discussed in Divorce > Matters affecting children > B. My wife wants to apply for divorce and she plans to take our only daughter out of Hong Kong during the waiting period. Can I stop her?
A. What are the grounds for divorce? Must I explain why I want a divorce?
In law, there is in fact only one ground for presenting a petition for divorce, namely, that the marriage has broken down irretrievably.
Under section 11A of the Matrimonial Causes Ordinance ( Cap. 179 of the Laws of Hong Kong) , except in the case of a Joint Application for divorce, the Court shall not hold the marriage to have broken down irretrievably unless the applicant for divorce (i.e. the petitioner) satisfies the Court of one or more of the following facts:
- that your spouse has committed adultery and you find it intolerable to live with your spouse;
- that your spouse has behaved in such a way that you cannot be reasonably expected to live with your spouse; Usually it is a series of misconducts or intolerable behaviour. However, a single incident of grave misconduct is enough;
- that you and your spouse have lived apart for a continuous period of at least 1 year before filing the petition and that your spouse consent to a divorce;
- that you and your spouse have lived apart for a continuous period of at least 2 years immediately before filing the petition for divorce (in such a case your spouse’s consent to a divorce is not required);
- that your spouse has deserted you for a continuous period of at least 1 year immediately before filing the petition for divorce.
- that the parties to the marriage have lived apart for a continuous period of at least 1 year immediately preceding the making of the application; OR
- that not less than 1 year prior to the making of the application a written notice (Form 2E) signed by both parties of their intention to apply to the court to dissolve their marriage was given to the Court and that the notice was not subsequently withdrawn.
If there are children of the family who are under the age of 18, you must include in your petition your proposal as to their custody and access. If you wish to apply for ancillary relief such as maintenance, transfer of property, division of matrimonial assets, etc., you should also pray so in your petition.
B. How do I apply for divorce? (with a brief summary of the relevant procedures)
You are advised to consult a lawyer before submitting the relevant documents and attending hearings in the Family Court.
You need to go through the following stages:-
Presenting a petition for divorce
Serving (delivering) my petition to my spouse
Fixing a court hearing date
Decree Nisi – a tentative court order for divorce
Final order for divorce
1. Presenting a petition for divorce
To start divorce proceedings, you need to fill in:
Petition (the form that you need to fill in depends on your particular circumstances or grounds for divorce)
Statement as to the arrangements for children (if applicable)
Financial Statement for financial dispute (if applicable)
Notice of Proceedings
Acknowledgement of Service (case number and name of parties only, other items to be completed by the respondent)
In the case of a Joint Application (which means you and your spouse have agreed to apply together for a divorce), you need to fill in:
Statement as to the arrangements for children (if applicable)
All forms you need are available from the Family Court Registry and may be completed in English or Chinese. When you have filled them in, take them to the Family Court Registry for filing, together with your original marriage certificate or a certified true copy. The filing fee is $630. You will be given a case number, which must be marked on any subsequently filed documents.
2. Serving (delivering) my petition to my spouse
Now that you have started legal proceedings, you are known as the “petitioner” and your spouse is known as the “respondent”. After filing your petition, you must arrange for a sealed copy ( “sealed” meaning a copy with the court’s chop on it) of the petition to be served on every other party to the proceedings, either by hand or by post. Note that you must not serve the petition on the respondent yourself. Instead you must use the services of a third person, or send the petition by post. If the petition fails to reach the respondent by hand or by post, the petition can be advertised in newspapers (with the approval of the Court) as a substitute way to notify the respondent.
In the case a Joint Application , there is no need to arrange for a sealed copy to be served on the other party.
3. Fixing a court hearing date
After your petition has been served on the respondent you should next apply to the Registrar for directions to set down the case for trial (i.e. to fix a date for a court hearing), using an application form obtainable from the Family Court Registry. Your petition or application will be set down for hearing in one of the following lists on payment of the stated fee:
Special Procedure List
Where a petition is concerned, before the case can be set down, the Registrar must be satisfied that the petition has been served on the respondent. This can be proved either by showing that the respondent has completed and returned a Form 4 (Acknowledgment of Service) to the Registrar, or by having the person who served the documents on the respondent file an affirmation confirming that the petition has been delivered to the respondent. Joint Applications will be set down provided that the relevant documents are in order.
The Registrar will make directions on the date, place and time of the trial and will notify you and the other parties.
4. Decree Nisi – a tentative court order for divorce
Special Procedure List
If you have petitioned for divorce but the respondent does not file an answer in response to your petition, the petition will be set down in the Special Procedure List. Joint Applications also come under the Special Procedure List.
After the Registrar has given directions for trial, he will consider the evidence you have filed. If he is satisfied that you have proved the contents of the petition or application, he will make and file a certificate to that effect. Both parties will receive a copy, endorsed with the terms they have agreed. There is no need for either party to attend the hearing. The Court will grant a decree nisi (a tentative court order) dissolving the marriage.
Where a petition for divorce is made and the respondent has filed an answer, the petition will be set down in the Defended List. In such cases, the Court will either grant a decree nisi dissolving the marriage, or will dismiss the petition if insufficient evidence is found. In the case of a petition listed on the Defended List, either or both of the parties may need to attend the court hearing.
In the event of court granting the decree of divorce, if the question of child custody and access arises, or if there are applications for ancillary relief by either party, the court will adjourn these matters to Chambers with directions for social investigations report and filing of affidavit of means by the parties where appropriate.
5. Final order for divorce
6 weeks after the Court has granted a decree nisi, you can apply for your decree to be made absolute (a final order for divorce) by sending a completed “Notice of Application for Decree Nisi to be made Absolute” to the Court, using Form 5 (for a petition) or Form 5A (for a joint application).
If there are children of the marriage, the decree nisi will not be made absolute until the Court declares that it is satisfied with the arrangements made for them. The Registrar will issue a Certificate of Decree Absolute to each party if the registrar is satisfied that the statutory requirements have been complied with.
(For more details of the above procedures, you may also visit the website of the Judiciary of Hong Kong on “How to apply for a divorce” .)
C. When will the divorce proceedings be completed? How long will it take before I can marry again?
The time for the completion of a divorce application will vary from case to case. It is subject to the Court’s caseloads, the length of the hearing and the fact that if there are children of the marriage, the decree nisi will not be made absolute until the Court declares that it is satisfied with the arrangements for them.
The Judiciary has the following performance pledge (for reference only):
i) Dissolution of marriage – from setting down for trial to actual hearing
– Special Procedure List
– Defended List (1-day hearing)
ii) Financial applications – from filing of summons to hearing (1-day hearing)
Wherever possible, the Judiciary will reply at once to correspondence from members of the public. In any case, it will issue an interim reply within 10 days and a full response within 30 days of receiving such correspondence.