3. Shall I choose to apply for divorce in Hong Kong?
a. Alternative option
Given the fact that Hong Kong is an international financial centre, it is common in Hong Kong for either or both parties to a marriage to have a close connection with another country, this is particularly so among the expatriates.
It is important to consider from a pragmatic perspective whether or not Hong Kong is the best place to initiate the divorce proceedings. The following factors are of relevance:
- How each country under consideration deals with divorce, the custody of children, and the financial matters － there may be vast significant differences, particularly over financial matters.
- For instance, in the US and Canada, they have ‘community property’ laws, so that “marital property” (i.e. property acquired during the marriage) is divided equally on divorce.
- One cannot obtain a divorce in Australia or New Zealand until you have been separated for a year. New Zealand courts approach the division of capital assets in a similar way as in the States and Canada and do not place as much emphasis on maintenance rights as the courts in Hong Kong do.
- Also, although the systems of divorce in Hong Kong and in England and Wales are very similar, they are not identical.
- It is important to have regard to the ease of enforcement of any court orders obtained against his or her spouse. For example, if your spouse refused to pay alimony, what action can be done against his or her assets? (It is usually convenient and most beneficial to charge or freeze against his or her assets when the court orders are made in the country in which the non-complying spouse lives and/or the main family assets are situated).
- It is usually more convenient to initiate the divorce proceedings in the country in which you reside because of the easier access to your lawyers and attendance in court if necessary.
If either or both parties to the marriage have substantial or close connections with one or more alternative countries or if your spouse is intending to institute proceedings in one country when it occurred to you that the legal system of another country might be available and of greater benefit to you, then you should seek legal advice from a matrimonial lawyer in each country before starting any divorce proceedings in order to make an informed decision. This has to be done without delay, failing which time (which is closely related with costs) would be wasted.
If both parties commence divorce proceedings in different countries, it is likely that it would give rise to a costly dispute over which country is the most appropriate place or forum for dealing with the divorce. The parties may even compete to obtain the first divorce decree, since the forum or the country in which the first decree is made will then be empowered to deal with the important ancillary matters of children and finance.
b. Recognition of Hong Kong divorce decrees
For the sake of saving unnecessary costs, before you start the divorce proceedings, it is vital to check for the recognition of the divorce decree that you intend to obtain, that is, whether it would be recognized by the Hong Kong Court, or whether the Hong Kong divorce decree is recognized by other countries.
Although the divorce decree granted by Hong Kong Court is recognized in many countries, it is not recognized in all places. In this regard, you should consult your lawyers.