Considerations for French couples living in HK who are considering a divorce
Considering a Divorce in Hong Kong — Length of Marriage and Jurisdiction
There is a popular belief that “anyone can get divorced” in Hong Kong, but HK is not a fly-in, fly-out divorce jurisdiction. Rather, the legislature and courts require that individuals seeking to divorce here must establish the length of marriage and court jurisdiction.
Length of Marriage
In general, a couple must remain married for one year prior to filing for divorce. There are circumstances in which a court will permit a couple to divorce who have been married less than one year, but the person seeking a divorce will have to show that he is suffering exceptional hardship or experiencing exceptional depravity on the part of the spouse. Adultery, even multiple affairs, will not normally qualify as exceptional hardship or depravity.
There are three ways a petitioner can establish jurisdiction, by providing one of the parties: (1) has been habitually resident for three years in HK; (2) has been domiciled in HK; or (3) has substantial connection to HK, prior to filing the petition.
To prove habitual residence for three years, one need only demonstrate that he has been resident in HK for three years prior to filing the petition. Absences for work or vacations will not be deducted for the calculation, but an extended stay out of the jurisdiction of six months might.
A domicile is the geographic location of an individual’s permanent home. According to HK law, every individual can have one – and only one – domicile at a time, even if he has multiple residences. Thus, an individual born in Beijing and has resided in Beijing his entire life will be domiciled in Beijing.
An individual can, however, acquire a new domicile if he is present in a new territory and intends to make a home there indefinitely. Thus, in the above example, if the individual moved to HK as an adult, he would have to be present in HK and intend to make a home here for an indefinite period to change his domicile. An adult college student, for example, who moves to HK would not be domiciled in Hong Kong if he intended to return home or to another jurisdiction upon graduation.
To establish a substantial connection to HK, a party must establish that (1) there is a connection with Hong Kong and (2) the connection is a substantial one. In one resent case, the court ruled that having (1) residency, (2) a driver license, (3) bank accounts, (4) direct deposit of salary, (5) investment accounts, (6) insurance policies, (7) an off-shore business, (8) a bedroom in a family home containing personal effects, and (9) a registered marriage in HK was insufficient to establish a substantial connection to HK.
In practice what does it mean for a French couple residing in Hong Kong who would like to file for divorce?
French nationals can always petition for divorce in France, even though they are not currently living in France, and haven’t been in years, this is provided by article 14 and 15 of the French Civil Code. This enables a non-French citizen to petition for divorce in France if his/her spouse is a French National.
However, it may be more favourable for one party to petition the Court in Hong Kong. In this case, how can they prove one of the criteria mentioned above?
There is little need to get into the first criteria of residence, which is self-explanatory.
The notion of domicile does require some explanation, since in France domicile relates to residence. To give you a concrete example, domicile is the jurisdiction with which you have the strongest links and helps to determine which law applies to your situation. A French Citizen born and bred in France is domiciled in France. However, if he/she has been living in Hong Kong for a certain number of years, at least 7 and has become a permanent resident, has all his/her interests in Hong Kong, has no intention of going back to France, we can consider that he/she has changed domicile. But he/she must express his intention to do so.
However, the “easiest way” to be allowed to petition for divorce in HK, for French Citizens is to establish a substantial connection with Hong Kong. This is not taken lightly by the Courts since as Kimberly mentioned Hong Kong is not a fly in fly out divorce destination.
Here are a few examples of how you can establish the substantial connection:
It is sadly often the case that a marriage breaks down upon moving to Hong Kong. In this case, the substantial connection, can be proved even if you have only been in Hong Kong for a few weeks by an employment contract, the enrolment of children at school or nursery for example. This alone proves that you had planned to establish residence in Hong Kong for the foreseeable future, thus there is a substantial connection.
What about a couple who has been living in Hong Kong for years, have moved away from Hong Kong? If they are permanent residents, there is no problem, although jurisdiction can be challenged if it is their only remaining link to Hong Kong. But if they have been living in HK on and off and never secured permanent residency, how can they prove their substantial link. The more usual situation is when one of the spouses has a business in Hong Kong and continues to do business here. But a mere shell company or a bank account will not be enough to establish a substantial connection with Hong Kong.
Jurisdiction requires careful consideration prior to filing a petition: not only where to file, HK or France, but the basis for the jurisdiction if HK is considered to be a more favourable location. Accordingly, French nationals considering filing a petition for divorce in HK should discuss jurisdiction with a legal practitioner prior to filing a petition or a petition being filed by his or her spouse.
This article was written with my fellow family law practitioner in Hong Kong Kimberly Ann Dasse.