Legal Information

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  • Legal Information

Legal Information

Q1. If my spouse has a long- term domestic violence or gambling habit, Can I apply for a divorce directly?
Yes. Under the Hong Kong law, a spouse's "unreasonable behaviour" (such as domestic violence, alcoholism, gambling, etc.) can be used as grounds for divorce. You need to provide relevant evidence (such as police records, witnesses) and submit a divorce petition to the court.
Q2.I do not want to divorce. Is there any other option?
If your relationship with your spouse is still good and you both agree to the terms of the separation, then a separation may be appropriate. However, if no agreement can be reached, the courts may need to get involved. Alternatively, the parties can try mediation.
Q3.If both parties want to separate, do they need a lawyer?
It is not mandatory but it is recommended to hire a legal representative as they will assist in preparing the agreement and ensuring compliance with relevant regulations.
Q4.Is it a must to state the ground for divorce when applying for divorce in Hong Kong?
In Hong Kong, when applying for a divorce, the applicant needs to prove the grounds for divorce to show that the marriage relationship has reached an irreparable point. According to the Hong Kong law, adultery, misconduct, separation (with spouse's consent), separation (without spouse's consent), and abandonment can be grounds for divorce.
Q5.How long do I have to wait to get a divorce in Hong Kong?
In Hong Kong, you have to wait one year after your marriage before you can apply for a divorce. You need to show
• The petitioner is facing extreme hardship; or
• The respondent (the applicant or the petitioner’s spouse) has behaved in an extremely depraved manner.
Q6.Can I apply for a divorce in Hong Kong if my marriage is not registered in Hong Kong?
Even if your marriage is not registered in Hong Kong, you can still apply for a divorce as long as one of the following conditions is met:r
• Either party has resided in Hong Kong continuously for not less than seven years on the date of application;r
• Either party has resided in Hong Kong for three years before the date of application;r
• Either party has a "substantial connection" with Hong Kong on the date of application (for example, either party owns assets in Hong Kong or works in Hong Kong, has resided in Hong Kong for a period of time, etc.)
Q7.What are the differences between divorce, void marriage and separation?
Divorce: After divorce, both parties can remarry. It should be noted that certain marital rights may be lost after divorce. Void marriage: The marriage is declared void, which can be regarded as never existing or revocable (valid before revocation) or declared void. Separation: The two parties separate, but still maintain a legal marriage relationship and retain their respective rights and obligations.
Q1.How long does the divorce process take?
If the other party does not contest and there are no other matters involved (such as children or financial issues), it may be completed in 3 to 6 months.
If there are contests and other matters involved, the entire process may take more than a year depending on the complexity of the case.
Each case will be different and will also depend on the caseload of the court.
Q2.Can a divorce proceed if the other party disappears or refuses to sign court documents?
Yes, you can still file for a divorce.
Q3.Do I need to go to court? If so, how often?
Yes, you must go to court. If the issue is contested, you may need to go to court at least 3-4 times. However, every case is different.
Q4.I heard that the court will grant two different divorce orders. What are these?
A decree nisi is a preliminary dissolution of a marriage, meaning that the court has determined that the marriage is irretrievably broken, but it does not mean that the marriage is completely over. After a decree nisi is granted, there is a waiting period (usually six weeks) during which time all matters need to be dealt with in preparation for further proceedings. A decree absolute is a final dissolution of a marriage, meaning that the marriage is legally over and the parties can start their lives anew.
Q5. What is mediation? Do I have to participate?
Ans.Mediation is a voluntary process that involves parties negotiating in front of a neutral third party, the mediator. During the mediation process, the mediator will assist the parties in resolving the dispute, and if it is successfully resolved, the parties will sign an agreement that is binding on both parties.
Q6.What do you need to do if both parties want a divorce?
Ans.You can file for divorce together, which is called a joint petition. However, both parties need to prove to the court that:
• they have lived apart from each other for at least 1 continuous year before the divorce application; or
• a signed cons ent to divorce has been submitted to the court not less than 1 year before the divorce application, and the consent has not been withdrawn.
Q1.Is child custody usually awarded to the mother?
The court prioritises the best interests of the child. The court determines custody based on the parent's background, educational ability, financial situation, and emotional relationship with the child.
Every case is different, and the court considers the facts of the case when determining custody.
Q2.What factors will the court consider before deciding whether to give child custody to one or both parents?
When deciding child custody, the court will first consider the best interests of the children. Specific factors include: • Availability of accommodation
• The wishes of the children
• The benefits of siblings living with both parents
• The religious and cultural background of the family
• Professional reports (such as medical, school or social welfare officer reports) on the child's relationship with the family, living conditions and health
• Maintaining the status quo as much as possible
• The age difference between the parents and the children
• The character, ability and personality of the parents
• The financial resources of the parents
• The mental health of the parents and the children
Q3.The child wants to live with me, will the court respect his wishes?
The court will listen to the child's wishes and will also consider their age and level of understanding. For example, the older the child is, the more weight the court may give to their wishes when deciding custody. However, it is important to note that the court will prioritise their welfares and interests.
Q4.What is the difference between joint custody and sole custody?
Joint custody means both parties have equal rights to the child and can make decisions about the child's life and development (e.g. school, residence). Sole custody means one parent has full decision-making power over the child's life and care, while the other parent only retains visitation rights.
Q5.If I have visitation rights, how will the visitation time be arranged?
There are usually three types of visitation time:
1. Reasonable visitation: time coordinated by both parents, carried out during reasonable living hours, such as avoiding late nights or school hours.
2. Free visitation: The definition is broad, and disputes may arise between the two parties. It is usually not recommended.
3. Defined visitation: Specific days of the week, time periods, handover methods and holiday allocations are listed, and visitation arrangements are detailed and standardised.
Q6.Can siblings live separately from their parents during and after a divorce?
In most cases, the court will order that siblings live and grow together, especially if the siblings are close in age. Although the court will occasionally order siblings to separate, this is rare.
Q1.How will the court deal with or divide the couple's property after divorce?
Generally, the court will apply the 50/50 rule to divide the assets equally between the parties unless there is a good reason to deviate from this rule. The court has the discretion to deviate from this rule and will consider relevant factors, including the specific circumstances of the case.
Q2.I suspect my spouse has hidden assets during divorce proceedings. What should I do?
Ans.You will need to apply to the court for an injunction to freeze and/or search for the suspected hidden assets. However, there must be evidence that the other party has transferred or hidden the assets.
Q3.Under what circumstances is a spouse entitled to maintenance?
Either spouse can ask for maintenance from the other. Usually, the court will consider several factors, including but not limited to:
• The income of each spouse
• The standard of living during the marriage
• The financial needs of each spouse
• The age of each spouse, etc.
Q4.What types of maintenance (or financial matters) orders does the court have the power to make?
Either party can seek spousal maintenance from the other. Generally, the Conciliation Court will consider a variety of factors, including but not limited to:
• Periodic payment orders
• Lump sum orders
• Property division (or transfer) orders
• Settlement orders
Q5.If I am ordered to pay maintenance to my spouse, how long do I have to pay it for?
Child support usually lasts until they turn 18 or finish full-time education, whichever comes later. Spousal support usually lasts until the spouse dies or the recipient remarries.
Q6.I am experiencing financial hardship during the divorce proceedings. Can I still proceed with the divorce proceedings?
Yes. You can seek temporary maintenance before the court issues an absolute decree. However, the amount of the decree does not affect the amount the court may award after the divorce becomes absolute.
Q7.After a divorce, am I entitled to a share of the property even though it is registered in my spouse's name?
If the asset was acquired during the marriage, it will most likely be considered a marital asset and will be divided.
Q8.Will my retirement savings be affected during a divorce?
Yes. Retirement savings accumulated during the marriage are considered marital assets and will be divided.
Q9.What should I do if I find out that my spouse's financial situation has changed and the court has already ordered maintenance?
If you are the one who pays maintenance but cannot continue to pay due to certain circumstances (such as being made redundant), you can apply to the court to reduce the maintenance. On the other hand, if you are the one who receives maintenance and the maintenance you are currently receiving is insufficient, you can also apply to the court to increase the maintenance.
Q10.What if the other party does not pay maintenance as agreed after the divorce?
You need to apply to the court to make your spouse pay off the money. If the payer cannot prove that he or she failed to pay, the court also has the power to sentence him or her to imprisonment.
Q11.Can I refuse to pay maintenance if my ex-spouse frequently and unreasonably refuses visitation time?
No. Maintenance and visitation rights are separate responsibilities. You will need to continue to pay maintenance.